text:
    Joseph LeMAY and Estelle LeMay, his wife, Appellants, v. U. S. H. PROPERTIES, INC., et al., Appellees.
    No. 76-1089.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1976.
    Larry G. Rightmyer, St. Petersburg, for appellants.
    James R. Lyle and C. Bryant Boydstun, Jr., of Lyle, Skipper, Wood & Anderson, St. Petersburg, for appellees U. S. H. Properties, Inc. and Travelers Indem. Co.
   PER CURIAM.

Appellants appeal the dismissal of their complaint with prejudice for failure to state a cause of action in this slip-and-fall negligence case. We reverse.

While the order of dismissal is silent as to the specific infirmity which the court found in the complaint, the briefs of the parties fairly zero in on the issue of “obscurity” of the defect causing the fall. That is to say, whether the complaint sufficiently alleged facts relating to a hidden danger as to give rise to some duty owed by defendants/ap-pellees U.S.H. Properties, Inc., covered by Travelers Indemnity Company, and Frank R. Mudano, covered by Continental Casualty Company. The pertinent allegations are as follows:

“In 1974 and 1975 the Defendant, FRANK R. MUDANO, an architect, designed a shopping center mall located in Pinellas County, Florida, known as Countryside Mall. Said design was inherently unsafe as a result of the negligent design of FRANK R. MUDANO. The unsafe condition arises out of the different floor levels in the mall center without adequate warning, notice, railings, or any other safety devise in order to warn people of a different level and/or steps.
U * * *
“The Defendant, U.S.H. PROPERTIES, INC., at all times pertinent hereto owned, was in exclusive possession of, and control the real property upon which the incident herein complained of occurred known as Countryside Mall. The Defendant, U.S.H. PROPERTIES, INC., negligently maintained, controlled, and operated the mall by knowingly providing an environment whereby the attention of the Plaintiffs as well as all other patrons is designed to be detracted from the floor and attracted to the various store fronts along the mall. U.S.H. PROPERTIES, INC. disregarded it duty to maintain the corridors of Countryside Mall in a reasonable condition and maintain a dangerous, unsafe, and obscure series of steps in the corridors of Countryside Mall. This Defendant further knowingly maintained the mall with the steps as above set forth which steps were obscured by all being the same color as the surrounding floor surface with no handrailings being provided and no notice, visual or otherwise, being given to the Plaintiffs of a difference in the floor elevation or that steps are present. There was no noticeable difference in color between the step risers, treads, and surrounding floor surfaces; the condition constituted a hidden and dangerous defect for which no warning was given. This Defendant was put on notice that the dangerous situation existed because of other people having fallen in the same place. The steps are situated at various places in the mall area at random locations and are two and three in number depending on the particular location. At some of the locations ramps are provided beside the steps; however, the ramps are separated from the steps by concrete walls and planters. The elevation changes in steps constitute a hidden danger of which this Defendant knew or should have known and which would not be noticed under normal conditions by patrons including the Plaintiffs at Countryside Mall. This Defendant owed a duty to the Plaintiffs to maintain a safe mall free of defects and to give notice of elevation changes as well as steps.
U * * *
“The negligent condition as herein-above stated was known to all of the Defendants or had existed for a sufficient length of time so that said Defendants should have known of it.
“The Plaintiffs were on the property as a business invitee for the purpose of shopping and general use of the mall.
“As a result of the negligence of all the Defendants hereinabove stated, the Plaintiff, ESTELLE LeMAY, on or about September 13, 1975, as a result of falling in the Countryside Mall, was injured in about her body and extremeties.”

As against U.S.H. Properties, Inc., we are of the view that sufficient facts are alleged to give rise to a triable issue, requiring a response, as to whether the condition complained of was so “concealed” or “hidden” as reasonably to require a warning or other protective measures. While the law is clear that there is no duty to warn of an obvious condition, not in itself dangerous, it appears equally well settled that there is a duty to warn of an obscure condition. Pensacola Restaurant Supply Company v. Davison, 266 So.2d 682 (Fla. 1st DCA 1972); Milby v. Pace Pontiac, Inc., 176 So.2d 554 (Fla. 2d DCA 1965).

As against the architect, Mudano, we are also of the view that the complaint states a cause of action. In Conklin v. Cohen, 287 So.2d 56 (Fla.1973), the Supreme Court quoted with approval the statement of the Fourth District Court of Appeal in Geer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970):

“The law applicable to an architect’s liability for personal injury or death may be summarized as follows. An architect may be liable for negligence in failing to exercise the ordinary skill of his profession, which results in the erection of an unsafe structure whereby anybody lawfully on the premises is injured. Possible liability for negligence resulting in personal injuries may be based upon their supervisory activities, or upon defects in the plans or both. Their possible liability is not limited to the owner who employed them. Privity of contract is not a prerequisite to liability. They are under a duty to exercise such reasonable care, technical skill and ability, and diligence as are ordinarily required of architects in the course of their plans, inspections and supervisions during construction for the protection of any person who foreseeably and with reasonable certainty might be injured by their failure to do so.”

The complaint sufficiently alleges that negligent design by the architect was a cause of the injury.

In view whereof the judgment appealed from should be, and the same is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

McNULTY, C. J., and HOBSON and SCHEB, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dorothy J. ROBERTS, Appellant, v. IVANHOE HOTEL et al., Appellees.
    No. 75-2015.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1976.
    Howell, Kirby, Montgomery, D’Aiuto & Dean and Edna L. Caruso, West Palm Beach, for appellant.
    Brumer, Moss, Cohen & Rodgers, Sam Daniels, Miami, for appellees.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Plaintiff appeals a summary final judgment entered by the trial judge in favor of the defendant in an action for damages sustained on or about the premises of the defendant.

Prior to oral argument the defendant-ap-pellee confessed error and agreed to an order of reversal. Error having been confessed, the judgment appealed is hereby reversed.-

Reversed and remanded for further proceedings.


text:
    Jimmie E. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 76-350.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1976.

      Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Miller was charged by information with larceny of a cow after he and a companion were stopped while driving a truck containing two cows on September 20, 1975. He was tried, found guilty as charged, and placed on five years probation with the condition he serve six months in jail.

We have examined the points appellant raises on this appeal and found them to be without merit. However, we must vacate the judgment and sentence since at the time appellant committed the offense, larceny of a cow was not a specific crime although appellant’s conduct did fall within the general larceny statute.

From the wording of the information it appears that appellant was charged under Section 812.021(2)(f), Florida Statutes (1975). However, the new Florida Criminal Code did not go into effect until October 1, 1975. At the time of the offense, the larceny statute provided for the crimes of grand larceny (involving the theft of property of the value of $100 or more) and petit larceny (involving property valued at less than $100). There was no special provision dealing with the theft of livestock. There was sufficient evidence to show that appellant was guilty of a larceny but there was no testimony as to the value of the cows. Petit larceny is thus the greatest offense which the evidence supported.

Therefore, we vacate the judgment and sentence and direct the lower court to enter a judgment of petit larceny. Appellant should be resentenced accordingly.

McNULTY, C. J., and HOBSON and SCHEB, JJ., concur.

      . Ch. 75-24, Laws of Florida.

      . Section 811.021, Fla.Stat. (1973).

      . Section 811.11, Fla.Stat. (1971) provided that horse and cattle theft, like grand larceny, was third degree felony. The statute was repealed by Ch. 72-252, Laws of Florida, and larceny of livestock was not a specific offense until the adoption of the new criminal code.


text:
    Ronald Neil RATLIFF, Appellant, v. STATE of Florida, Appellee.
    No. 76-850.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1976.
    Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and Sanford M. Estroff, Student Assistant, Bar-tow, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After consideration of the record and briefs, oral argument having been waived, the appellant having failed to make reversible error clearly appear, the judgment is affirmed. Our decision is without prejudice to appellant to file a motion pursuant to Fla.R.Crim.P. 3.850 alleging appropriate grounds for withdrawal of his guilty plea and/or ineffective assistance of counsel.

AFFIRMED.

McNULTY, C. J., and BOARDMAN and GRIMES, JJ., concur.


author: SANDERS, Chief Justice. SUMMERS, Justice CALOGERO, Justice TATE, Justice. SANDERS, C. J., SUMMERS, Justice

text:
    Wilma M. BILLIOT, Individually and as natural tutrix of her minor son, Joseph J. Billiot, Jr., and as Administratrix of the estates of Joseph J. Billiot, Sr. and Charlotte Marie Billiot v. Mr. Lyes BOURG d/b/a Lyes Bourg Truck Lines et al.
    No. 56920.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    On Rehearing Oct. 6, 1976.
    Dissenting Opinion Nov. 12, 1976.

      Henry L. Klein, Windhorst, Heisler, De Laup, Wysocki & Klein, New Orleans, Ralph Hillman, Thibodaux, for plaintiffs-applicants.
    Philip E. Henderson, Henderson, Hane-mann & Morris, Houma, for defendants-respondents.
   SANDERS, Chief Justice.

This suit for damages for personal injuries and wrongful death arose out of an automobile accident which happened on Louisiana Highway 27 at about 9:30 p. m., on September 8, 1972. A cane truck, owned by Lyes Bourg Truck Lines, operated by William Jasper, and leased to South Coast Corporation, which was being driven south, ran out of gas and stopped at the west edge of the southbound lane of the highway. Later, an automobile owned and operated by Joseph J. Billiot, Sr., also travelling south and approaching the truck from the rear, swerved into the northbound lane of traffic in an effort to avoid striking the truck. The right rear of the Bil-liot vehicle struck the left rear of the truck, causing the automobile to spin into the northbound lane, where it was struck by an oncoming car. As a result of the accident, Mr. Billiot and his young daughter, Charlotte Marie, were killed; his wife, Wilma M. Billiot, and son, Joseph J. Bil-liot, Jr., were injured.

Mrs. Billiot filed suit, individually, as natural tutrix of Joseph, Jr., and as admin-istratrix of the estates of her deceased husband and daughter, seeking damages for the wrongful death of Mr. Billiot and Charlotte Marie, and for the personal injuries suffered by herself and her son.

Defendants in the suit were Lyes Bourg, doing business as Lyes Bourg Truck Lines, William Jasper, South Coast Corporation, Aetna Casualty and Surety Company, and Jim Walter Homes, Inc. Answer was filed denying negligence and pleading the negligence and contributory negligence of Mr. Billiot. Defendants also third partied the plaintiff in her various capacities for contribution of one-half of any damages for which they might be cast because of the negligence of Joseph J. Billiot, Sr. The suit was later voluntarily dismissed as to South Coast Corporation and Jim Walter Homes, Inc.

After trial before a jury, verdict was rendered, finding that both William Jasper and Joseph J. Billiot, Sr. were negligent, but that the negligence of Billiot was not a proximate cause of the accident. Damages of $100,000 were awarded to Mrs. Billiot, individually, and $17,500 was awarded to Joseph J. Billiot, Jr. Judgment, in solido, was signed against Bourg, Jasper and Aet-na, and they appealed. The Court of Appeal reversed the district court and rendered judgment in favor of the defendants . and against plaintiff, dismissing plaintiff’s suit at her cost. La.App., 317 So.2d 684. On the application of plaintiff, we granted writs to review the judgment of the Court of Appeal. La., 320 So.2d 910 (1975).

In this Court, plaintiff contends that the Court of Appeal erred: in reversing the lower court in the absence of manifest error; in adopting a “preponderance of the evidence” rule at the appellate level; in substituting its judgment in an area particularly insusceptible to appellate review, credibility of witnesses; and in absolving the defendant of negligence when there was a violation of the highway safety act.

Generally, the findings of fact by the trier of fact are entitled to great weight and will not be disturbed on appeal. Canter v. Koehring Company, La., 283 So.2d 716 (1973). However, the Court of Appeal’s jurisdiction extends to the law and the facts. LSA-Const. (1974) Art. 5, § 10(B). In the present case, the Court of Appeal was required, as we are, to review both the law and the facts. LSA-Const. (1974) Art. 5, § 5(C).

Having reviewed the evidence, we find that the driver of the truck was negligent in failing to remove his vehicle from the traveled portion of the highway when it was practical to do so.

LSA-R.S. 32:141 (A) provides:

“Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.”

Mr. Jasper testified that, prior to stopping on the highway, he heard a familiar “popping” noise which indicated that a tank was out of gas. He attempted to switch over to another tank, and the noise continued. After the motor died, he coasted for some distance, attempting to start the motor. The record discloses that he could have cleared the traveled portion of the highway; he chose, however, to remain on the traveled portion of the highway and obstruct traffic. On today’s highways, such an obstruction, expecially at night, is a real hazard to approaching motorists.

The statute was designed to prevent the type of collision that occurred here. That collision, in our opinion, would not have occurred had not the disabled truck been obstructing the highway. Hence, the truck driver’s negligence was causally related to the ensuing harm and is actionable. See Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

Likewise, we find the driver of the automobile guilty of contributory negligence. Mrs. Billiot’s testimony was that her husband was driving between 55 and 60 miles per hour. The applicable speed limit was 35 miles per hour. Although the testimony is conflicting, the record reflects that some lights were burning on the truck. Had Mr. Billiot been driving within the speed limit, it is more probable than not that he could have stopped without injury to himself and his family. Hence, his negligence was contributory.

The deceased husband’s contributory negligence bars recovery of his damages. The defendants cast are also entitled to contribution of one-half the damages from his estate. See Smith v. Southern Farm Bureau Casualty Ins. Co., 247 La. 695, 174 So.2d 122 (1965). The plaintiff, Wilma M. Billiot, is entitled to judgment for her own damages and those due her children.

For the reasons assigned, the judgment of the Court of Appeal is reversed, and judgment is rendered in favor of plaintiff, Wilma M. Billiot, individually and in her representative capacity, against Lyes Bourg doing business as Lyes Bourg Truck Lines, William Jasper and Aetna Casualty and Surety Company, in solido, in such sums as may hereafter be fixed by the Court of Appeal, subject to the right of contribution asserted in the third party demand. The case is remanded to the Court of Appeal for the fixing of the damages according to law and the amount of contribution on the third party demand. All court costs are assessed against the defendants, in solido.

SUMMERS, J., concurs with reasons.

CALOGERO, J., concurs in part, dissents in part and assigns reasons.

SUMMERS, Justice

(concurring).

I can agree with the result reached here upon the theory, which the facts support, that stopping the truck on the traveled portion of the highway in violation of a highway regulatory statute (La.R.S. 32:141, subd. A.) was the proximate cause of the accident and the ensuing harm.

CALOGERO, Justice

(concurring in part, dissenting in part).

I concur in that part of the majority opinion which revises the judgment of the Court of Appeal and renders judgment in favor of plaintiff, Wilma M. Billiot, individually and in her representative capacity.

I dissent, however, from that part of the majority opinion which affirms the judgment of the Court of Appeal that the deceased husband, Joseph L. Billiot, Sr., was contributorily negligent and that, therefore, his recovery of damages was barred. In my view the trial court was correct in finding from the facts that although Mr. Billiot was negligent, his negligence was not a proximate cause of the accident.

ON REHEARING

TATE, Justice.

We granted rehearing primarily to reconsider our determination on original hearing that recovery of damages by the plaintiff widow is barred by the contributory negligence of her deceased husband.

The facts are more fully set forth in our original opinion and in the opinion of the intermediate court, 317 So.2d 684 (La.App. 1st Cir. 1975), certiorari granted, 320 So.2d 910 (La.1975). For purposes of the present opinion, as found by us on original hearing, they relevantly show:

The accident occurred after dark at 9:30 p. m. The defendants’ truck was stopped in the southbound lane of a two-lane highway, negligently obstructing oncoming southbound traffic. An automobile driven by Joseph Billiot, Sr., the plaintiff’s deceased husband, approached the truck from the rear and, in an effort to avoid the truck, swerved left into the northbound lane, where it was struck by another vehicle.

Billiot and his young daughter, Charlotte Marie, were killed in the accident. The plaintiff Mrs. Billiot and her minor son, Joseph, Jr., were injured in the accident. After trial by jury, on special verdicts the jury found that the defendants were negligent, that the plaintiff’s negligence in exceeding the speed limit was not a proximate cause of the accident, and that Mrs. Billiot and her son were injured in specified amounts.

On our original hearing, despite the trial jury’s express finding that the excess speed bore no causal relationship to the accident, we held that the deceased husband was contributorily negligent. The basis for our initial holding was that he was driving 55-60 mph on a straight open stretch of the highway, in which there were signs posted showing the speed limit to be 35 mph.

On reconsideration, we find we were in error in so concluding.

The trial jury permissibly resolved in the plaintiff’s favor the conflicting evidence as to a principal issue, the observability of the obstructing truck to oncoming southbound night traffic. The intermediate court erroneously disregarded the trier of fact’s resolution of this opposing evidence in the plaintiff’s favor, based upon evidence the jury reasonably found credible.

This principal issue concerned whether the defendant’s cane truck, dangerously obstructing the highway, was sufficiently visible to oncoming vehicles to alert them to its presence on the highway. The trial jury accepted as credible and preponderating the evidence of the plaintiff’s witnesses that the truck was stopped without running lights or emergency flashers.

Mrs. Billiot herself testified that there were no lights on the truck and that, when she and her husband first observed it, it was too late to stop. The testimony of the witnesses Altom, Bouquet, Mrs. Bouquet, Clarence Billiot (no relation), and Hebert were generally corroborative of her testimony that the truck was parked without noticeably visible reflector or lighting to alert southbound motorists of the hazard blocking their passage in their traffic lane.

Mr. and Mrs. Bouquet, for instance, drove up upon and past the truck shortly before the accident. In their southbound vehicle, the driver did not notice the parked truck until within seventy-five feet of it, when (after the passenger’s exclamation) he noticed dim lights on the rear, of the cane truck. The passenger saw the rear lights just as they came near the truck, and she thought the truck was moving until her husband was forced to veer around it. Since there was no traffic approaching from the opposite direction, the Bouquet vehicle was able to pass the truck by going around it in the northbound lane.

Clarence Billiot, who inspected the truck shortly after the accident, found that it had only one taillight, which was lit but only dimly visible because of the dirt and dust on it. He found no other lighting on the truck.

The Bouquet car, and another southbound automobile in which Altom was a passenger (which also came upon the truck’s rear shortly before the accident), were able to pass the truck without incident, since there was no traffic approaching the northbound lane. Likewise, no approaching headlights lessened even more their ability to observe and notice that the dimly lit truck was stopped in obstruction of the highway.

Under the evidence reasonably found credible by it, the trial jury could properly find that the decedent Billiot’s failure to observe sooner the truck was excused by its obscured lighting and lack of warning reflectors or flashers, and by the loss of visual acuity impairing his vision (unlike that of the other two earlier vehicles) by the headlights of the two vehicles approaching him from the north, with the second of which he collided as he veered around the truck. Craker v. Allstate Insurance Company, 259 La. 578, 250 So.2d 746 (1971); Suire v. Winters, 233 La. 585, 97 So.2d 404 (1957),

The jury could thus reasonably have found, as it did by its special verdict, that the decedent’s speed at 55 mph, in excess of the posted speed of 35 mph , was not a cause in fact of the accident — in short, that due to the negligent lack of sufficient lighting or warning to alert oncoming traffic of the hazard in its path, the accident would have occurred'whether the decedent was driving 35 mph or 55 mph. We find no reason to disturb this factual conclusion by the trier of fact, based upon evidence reasonably found credible by it. Canter v. Koehring Company, 283 So.2d 716 (La. 1976).

When as here the evidence is conflicting, an appellate court should not disturb the trier of fact’s reasonable evaluation of one set of witnesses as credible, and its consequent rejection of the testimony of the opposing set of witnesses; nor should the reviewing court disturb the trier of fact’s reasonable factual inferences drawn from such testimony found by it to be credible. The intermediate court was in error in doing so and in, consequently, reversing the determination of the trier of fact.

Accordingly, we affirm the trial jury’s determination that the defendants did not bear their burden of proving by preponderance of the evidence that the defendant’s conduct constitued contributory negligence which was a legal cause contributing to the accident.

Damages

By special verdicts, the jury awarded damages in specified amounts. The amounts were not questioned in the court of appeal. We have reviewed the general damages and found them to be within the much-discretion of the trier of fact to award. La.Civ.Code art. 1934(3). Accordingly, we will affirm the trial court judgment against the defendants in the amounts awarded by the trial court judgment. Weiland v. King, 281 So.2d 688 (La. 1973).

Decree

For the reasons assigned, we set aside the judgment of the court of appeal, and we reinstated and affirm the judgment of the trial court and against the defendants. The defendants are taxed with all costs of these proceedings.

COURT OF APPEAL JUDGMENT SET ASIDE, AND TRIAL COURT JUDGMENT REINSTATED AND AFFIRMED.

SANDERS, C. J.,

dissents for the reasons assigned on original hearing and for the additional reasons assigned by SUMMERS, J.

SUMMERS, J., dissents with written reasons.

MARCUS, J., dissents for reasons assigned on original hearing.

SUMMERS, Justice

(dissenting).

Rehearing was granted to consider, primarily, the contributory negligence of Joseph J. Billiot, Sr., and its causal relation to the accident and resulting damage.

The trial court judgment found Billiot negligent, but decided that his negligence was not a proximate cause of the collision. Having found that the driver of the truck was negligent, the trial court permitted plaintiffs to recover. The Court of Appeal, on the other hand, decided that the driver of the truck was not negligent and, therefore, it was unnecessary to consider Billiot’s contributory negligence. That court denied recovery.

In our original opinion we found both drivers negligent, finding that the negligence of Billiot contributed to the accident. Recovery for Billiot’s wrongful death was therefore denied. Recovery on behalf of the plaintiff, Wilma Billiot, the widow, individually and as natural tutrix of Joseph, Jr., and as administratrix of the estate of her deceased daughter, Charlotte Marie, for Charlotte Marie’s wrongful death, and for her own personal injuries was allowed in solido against both drivers.

On rehearing our original opinion was set aside, the judgment of the Court of Appeal was reversed, and the judgment of the trial court was reinstated.

Another review of the evidence confirms my original view as expressed by the Chief Justice that both the truck driver, William Jasper, and Billiot were negligent. Jasper was negligent for failing to stop his truck off the paved or main traveled part of the highway when it was practicable to stop, park or leave the truck off the main traveled part of the highway. Jasper, therefore, failed to obey the mandate of Section 141 (A) of Title 32 of the Revised Statutes. Breach of his duty in that respect created a risk to the traveling public, a risk the statute was designed to eliminate. This was negligence, which continued to the moment of the accident. As such the negligence was a proximate cause of the accident. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

By the same reasoning, Billiot was negligent. He was driving between SS and 60 miles per hour in contravention of the 35 mile speed limit prescribed for that site. The truck was first seen by the car’s occupants approximately 900 feet away; it was large and had some lights. If he had obeyed the speed limit, and exercised reasonable care, he could have seen the truck in time to stop and thereby avoid the collision and damage which resulted.

The speed limit was designed to eliminate a risk to the traveling public. Billiot’s violation of that proscription was a breach of the duty to protect motorists imposed upon him by the speed limit. Breach of that duty created a risk to travelers the speed limit was designed to eliminate. Billiot’s action was, therefore, negligent. Since his negligence continued to the moment of the accident and concurred with the negligence of the truck driver, it was a proximate cause of, and contributed to, the accident and resulting damage. Billiot and Jasper were, therefore, liable in solido for the resulting harm and damage incurred by the plaintiffs, except their claim for Billiot’s death. They cannot recover for this latter claim because his death resulted from his own negligence. La.Civil Code art. 2315; Callais v. Allstate Insurance Co., 334 So.2d 692 (La. 1976).

I respectfully dissent.

      . In seeking to impeach this testimony, the defendant makes much of her estimate of the place on the road where, under cross-examination, she estimated she noticed the truck. However, the trial jury, which could observe her on the stand and evaluate her entire testimony, could properly accept her positive testimony to the effect as noted in our opinion above, and discount as an inaccurate estimate this housewife’s after-the-fact attempt to remember the place she first noticed the truck as she and her husband approached it.

      . The posted speed limit of 35 mph was because a high school was situated on this stretch of otherwise open highway. We do not reach the additional issue whether violation of this limit, posted to assure safety of schoolchildren, could be a legal cause of this nighttime accident, after school hours, if the duty imposed by the statute did not encompass the particular risk here encountered. See Brantley v. Brown, 277 So.2d 141 (La. 1973).

      . The jury awarded Mrs. Billiot $70,000 for damages due for the death of her husband (a 28-year-old fisherman earning over $10,000 per year), $20,000 for damages due her for the death of her minor daughter, and $10,000 for her own personal injuries (fractures of an elbow and two ribs, lacerations, etc.) ; in total, $100,000. Damages awarded to Joseph Billiot, Jr., age under one year, were $15,000 damages for loss of his father and $2,500 for his own personal injuries (fractures of arm and other injuries) ; $17,500 in all, awarded to Mrs. Billiot as his tutrix and administratrix of his estate.


author: SANDERS, C. J., SUMMERS, Justice

text:
    William DUNMAN v. The KROGER COMPANY and Employers National Insurance Company.
    No. 58420.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
    Dissenting Opinion Nov. 12, 1976.
   In re: William Dunman applying for cer-tiorari, or writ of review, to the Court of Appeal, 333 So.2d 427, Third Circuit, Parish of Calcasieu.

Writ granted. Considering the motion to remand and the attached medical report, the previous judgments are set aside, and the case is remanded to the district court for it to receive further evidence as to disability. See Crimen v. Fidelity & Cas. Co., 249 La. 1071, 193 So.2d 249 (1966).

SANDERS, C. J.,

is of the opinion that a writ should be granted and the case assigned for hearing in this court.

SUMMERS, J., dissents and will assign reasons.

ON APPLICATION FOR WRIT OF CERTIORARI AND REVIEW

SUMMERS, Justice

(dissenting).

This application for certiorari sought review of a unanimous decision of the Court of Appeal affirming a judgment of the trial court which denied plaintiff’s claim for total and permanent disability workmen’s compensation benefits. The application was filed on August 2, 1976.

The sole basis for plaintiff’s application was the claim that the trial judge and the Court of Appeal committed error in not affording him the legal presumption that his condition resulted from the compensable accident.

Then, on October 5, 1976, plaintiff filed a notice that he desired a delay in the decision on his application for certiorari and review “so that his doctor may examine him and render a report detailing the changes of his medical condition” in order to support a motion to remand the case to the district court “due to recent developments in his medical condition.”

A motion to remand filed three days later contained a copy of a medical report dated October 5, 1976 which was alleged to “constitute new evidence” not heard by the district court concerning an injury which occurred on September 24,1973. The medical report contains findings which were mainly cumulative of the findings of plaintiff’s medical expert at the trial.

Considering the studied attention given to this claim by the Court of Appeal and the trial judge, as will appear from the opinion of the Court of Appeal, 333 So.2d 427, I cannot subscribe to this Court’s order setting aside those judgments, without the benefit of the record upon which they are based, and remanding this case to the trial court to receive further evidence relating to this claim for disability.

The authority relied upon, Crimen v. Fidelity & Casualty Co. of New York, 249 La. 1071, 193 So.2d 249 (1966), does not support this unprecedented action. There this Court had before it the entire record; writs had been granted and the record was ordered up on certiorari. Arguments were heard and briefs of the parties were received. Reversal of the Court of Appeal judgment and remand to the district court were therefore procedurally proper after this full hearing.

Here, however, the Court sets aside the judgments of the district court and the Court of Appeal in a chamber proceeding, without the record and without a hearing in open court. Our law was never intended to deprive a litigant of a favorable judgment in this fashion. While such action may be condoned under special circumstances when interlocutory rulings are involved, I cannot agree that it is appropriate in the case of judgments affirmed by the Courts of Appeal after a full trial in the district court.

Too many safeguards designed to assure due process and sound adjudication are being discarded by this Court.

I dissent.


text:
    BISHOP HOMES, INC., et al. v. James A. DEVALL.
    No. 58654.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Bishop Homes, Inc., et al. applying for certiorari, or writ of review, to the Court of Appeal, 336 So.2d 313, First Circuit, Parish of Ascension.

Writ denied. The result is correct.

SUMMERS, J., is of the opinion the writ should be granted.


author: CALOGERO, J.,

text:
    Judy Hanson ROME v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE.
    No. 58651.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Life and Casualty Insurance Company of Tennessee applying for certiorari, or writ of review, to the Court of Appeal, 336 So.2d 275, First Circuit, Parish of East Baton Rouge.

Writ denied. On the facts found by the court of appeal, there is no error of law.

DIXON, J., is of the opinion that the writ should be granted.

CALOGERO, J.,

believes the writ should be granted. The Court of Appeal opinion reversing the trial court’s judgment is wrong.


text:
    SHELL OIL COMPANY et al. v. BOARD OF COMMISSIONERS OF PONTCHARTRAIN LEVEE DISTRICT et al.
    No. 58627.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Lewis Gottlieb et al. applying for certiorari, or writ of review, to the Court of Appeal, 336 So.2d 248, First Circuit, Parish of Iberville.

Writ denied. No error of law in the court of appeal opinion.

SUMMERS, J., is of the opinion the writ should be granted.


text:
    Wyman J. GAGNARD v. ALLSTATE INSURANCE CO. et al.
    No. 58616.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Wyman J. Gagnard applying for certiorari, or writ of review, to the Court of Appeal, 335 So.2d 770, Third Circuit, Parish of Rapides.

Writ denied. On the facts found by the Court of Appeal, there is no error in the judgment complained of.

DIXON, J., is of the opinion the writ should be granted.

CALOGERO, J.,

dissents from writ denial. Sufficiency of the uncontroverted circumstantial evidence in this case presents a question of law.


author: BEER, Judge.

text:
    LOUISIANA NATIONAL LEASING CORPORATION v. FAMILY POOLS, INC., et al.
    Nos. 7416 to 7420.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    On Rehearing Oct. 13, 1976.

      Sanders, Miller, Downing & Kean, John Dale Powers and Charles S. McCowan, Jr., Baton Rouge, for plaintiff-appellant.
    Francipane, Regan & St. Peé, Phillippi P. St. Peé, Metairie, for defendants-appellants.
    Before SAMUEL, BOUTALL, and BEER, JJ.
   BEER, Judge.

These five suits, consolidated for trial, deal with five separate agreements, each of which is labeled “Lease” even though each bears striking resemblance to a conditional sales agreement. Nevertheless, for the purposes of this opinion, the agreements will be treated as leases in accordance with Executive Car Lease Co. of New Orleans v. Alodex Corp., 279 So.2d 169 (La., 1973). In all of the agreements, the “lessee” of certain construction or automotive equipment is Family Pools, Inc., represented by its president, J. Stanley Middleton, Jr. The “lessor” in each instance is Louisiana National Leasing Corporation (hereafter “National Leasing”).

Each “lease” contains a “surety agreement,” the contents of which we shall discuss more fully hereafter. That surety agreement, in each instance, was executed by J. Stanley Middleton, Jr., individually, Sherard Fabacher, individually, and Peter Fabacher, individually.

Family Pools, Inc. failed, in all five separate instances, to make the timely installment payments (termed “rent”) which the various instruments required. Therefore, consecutively numbered suits were filed by National Leasing against the lessee and the sureties in the 24th Judicial District Court for the Parish of Jefferson, consolidated for trial, and, in all instances but one (docket number 160-297), decided in favor of plaintiff, National Leasing, and against Family Pools, Inc. and J. Stanley Middleton, Jr., individually. In all instances, National Leasing’s claim against Sherard Fabacher, individually, and Peter Fabacher, individually, was dismissed, as was National Leasing’s claim against all defendants in the case bearing docket number 160-297.

From those judgments, National Leasing has devolutively appealed, contending that the trial court erred in the dismissal of the claims against the Fabachers in all suits and further erred in the dismissal of that case bearing docket number 160-297.

Apparent from its written reasons for judgment is a finding on the part of the trial court that the “lease,” which forms the basis for the suit bearing docket number 160 — 297, was terminated on January 19, 1973. That particular “lease” agreement contains a stipulation not found in the other four agreements. It provides that:

“Notwithstanding any action taken by Lessor, including taking possession of any or all of the equipment, Lessee shall remain liable for the full performance of all its obligations hereunder, but if Lessor terminates this lease in writing, as to any item of equipment, Lessee shall not be liable for rent for such item accruing after the date of such termination.”

Although the “lease” which is the threshold document for consideration of docket number 160-297 is not identical to the “leases” in the other four cases, the question of termination vel non is material to a full consideration of the legal issues raised in the other cases and is critical in docket number 160-297.

Expectedly, under the circumstances existent in this matter, there were considerable exchanges of correspondence and discussions between the various parties at interest which arose from the failure of Family Pools, Inc. to meet the payment schedule provided for in each particular “lease.”

However, notwithstanding those exchanges and various threats of termination of the agreements, the practical result of all the machinations between the parties was a Mexican stand-off. The terms of this armed truce, though never reduced to a formal agreement, amounted to a tacitly acceptable procedure whereby Family Pools, Inc., despite its default, continued to use the “leased” equipment and, contemporaneous with this, made some payments of “rent” to National Leasing when money was available. In other words, they kept using the “leased” equipment to try to make a profit from which additional “rent” payments could be made. All of the parties whose various interests are now being resolved by this litigation tacitly went along with this procedure. Thus, there was existent, in effect, a sort of continuing calculated gamble on the part of all concerned that Family Pools, Inc. would, if allowed to continue using the equipment, make some money, and, eventually, pay off the balance due under the “leases.” This describes the actual situation as of January 19, 1973 (and, incidentally, still the situation), even though certain letters admitted into evidence can, on their face, be construed differently. Thus, the trial court’s finding in docket number 160-297 that there was “no liability after termination — i. e., after January 19, 1973” is partially in error. Though we certainly agree with the trial court’s conclusion that liability for “rent” ceases after the date of termination of the “lease,” we must reject any conclusion that actual termination has ever, in fact, taken place.

All of the parties to the agreements, in one way or another, have tacitly acquiesced in the continuation of the relationships generally established by the original contracts. All parties to the agreements, at least to some perceptible extent, have continued to indulge in that most human desire to have one’s cake and eat it too. To visit the sting of literal interpretation on only one of those participants because of the form used in a letter warning of certain consequences if payment was not timely received, when the actual facts indicate that an arrangement, however temporary, improvised and fragile, had been worked out, would not be just. See Southern Fleet Leasing Corp. v. McAndrew, 219 So.2d 215 (La.App., 1st Cir., 1969). The record does not indicate to us that any of the parties, including the sureties, so conducted themselves as to be in a position to insist upon positive literal interpretation of any of the documents here involved, including the letter threatening termination, without any consideration of the actual facts which, as we have indicated, materially vary the verbiage of the documents.

We conclude that none of the “leases,” including the one that is involved in docket number 160-297, have been terminated in such manner as to extinguish the “lessee’s” liability for “rent.” Furthermore, that liability must also exist with respect to the sureties in all five agreements if we conclude that their general defensive contentions — sustained thus far by the trial court — are without merit.

Accordingly, we turn now to a consideration of the correctness of the trial court’s determination that Messrs. Fabacher are to be excused from their obligation as sureties.

Messrs. Fabacher were signatories, as “guarantors,” along with J. Stanley Middleton, Jr., of a “surety agreement” that forms a part of each “lease.” That agreement reads as follows:

“In consideration of the Lessor entering into this lease with the Lessee, the undersigned hereby guarantees and becomes surety for the Lessee in favor of the Lessor for the full and faithful performance of all Lessee’s obligations under this lease. This obligation of the undersigned surety is joint, several and in solido with the Lessee. The undersigned shall be bound as if principal obligors for all amounts due under this lease, both for the basic term and for the continued month to month basis thereafter, and consents in advance to all extensions. The undersigned renounce any plea and benefit of discussion or division granted by law to sureties; it is understood and agreed that without this guarantee or surety agreement, Lessor would be unwilling to enter into this contract of lease with the Lessee.”

When the five consecutively numbered suits were filed in the 24th Judicial District Court, the Fabachers were sued in their surety-guarantor capacity. In answers, they admitted the signing of the surety agreements but alleged in their answers that the agreements had been breached by Family Pools, Inc. in various ways.

Much is made by all litigants regarding the procedural manner by which these surety-guarantor defendants have confected their pleadings and attempted to set up their affirmative defenses. Procedural requirements should be construed on a liberal basis to serve the proper administration of justice. In these circumstances, we find that the trial court’s willingness to permit the introduction of certain testimony on the part of the sureties to be essentially correct, regardless of the form of their pleadings and regardless of the strenuous objections by able counsel for the “lessors.”

Nevertheless, we take serious note of the fact that a surety’s duty to specify and affirmatively prove his defenses signals more than a procedural hedge against unfair surprise.

Essentially, it signals that a surety is one who has embarked upon a solemn— indeed onerous — undertaking and, however well intentioned and unselfish were his motives in assisting his friend, the principal, it is all business as far as the obligee is concerned. Thus, any subsequent efforts on the surety’s part to rid himself of this solemn obligation must be manifested in an affirmative and unequivocal manner, with the burden to overcome the obligation clearly and emphatically borne by the surety. It will not do for a surety to stand by and, at his pleasure or convenience, simply interpose those various defensive contentions which .may, in time, occur to him or as opportunity may seem to offer. His burden is such that he must sound the charge — loud and clear — when he seeks to set aside his previously granted unconditional guarantee. For, it was this unconditional guarantee that must be assumed to be the bedrock reason for the obligee being willing — in the first place— to do business with the principal.

An act of suretyship is not a mere pleasantry bestowed upon serious business proceedings. It is no unexpected but gratefully accepted windfall. It is a positive act of guarantee that has been fully and completely counted upon from the inception of the obligation that it assures and, indeed, is very often (as here) the basic catalyst of the transaction. Once it is demonstrated that a surety has properly assumed his role, the time lock tumblers fall loudly into place and only the most direct, compelling and affirmative action can hope to undo what has been done. Although sure-tyship may first appear to be a carefree spring maiden, she can — overnight—become a grasping, wintry shrew. Those who would — for whatever reasons — dally with her fatal charms must be prepared to experience the sting of total disillusionment when the principal fails to respond.

As knowing sureties, fully aware of their obligations, Messrs. Fabacher took no positive affirmative action that would have precipitated a showdown with the other parties to these transactions after the original default by Family Pools, Inc. They had but, essentially, ignored the opportunities to precipitate such proceedings as would have caused the final determination of a liquidated amount which would, as of such determination, constitute the total maximum exposure on their part as sureties. They knowingly participated in the best-of-both-worlds-hope that, in time, Family Pools, Inc. would pay off the debts. For, though their clear-cut exposure as sureties could, perhaps, have been lessened by a prompt seizure and subsequent sale of the equipment after original default, their exposure was, nevertheless, also being continuously reduced by the sporadic payments which were coming in from Family Pools, Inc. in return for continued use of the equipment. We believe that their original commitment as sureties was sufficiently clear and sufficiently onerous under the terms of the agreements to oblige affirmative action on their part to protect their interests rather than the obvious wait-and-see attitude that the record discloses. The affirmative defensive contentions which they make in their answer come too late in the day to have more than a hollow sound. For them to avail themselves of the “lease” provisions that they now seek to use as shelter required an affirmative effort on their part at a time when actions spoke louder than words. Thus, it is not sufficient to have orally requested National Leasing to take such steps as would protect them (the Fabachers) from loss. The burden was upon them to affirmatively precipitate a seizure and sale or — at the very least — to take such affirmative legal action as was necessary to cause National Leasing to commence the protective procedures formally provided for in the agreements.

Having concluded that the “lease” agreement has not terminated, we also conclude that there has been no termination of that continuing guarantee to which the Fabach-ers are signatories. Whatever impurities exist with respect to the manner in which National Leasing has conducted its affairs are just as existent with respect to the conduct of Messrs. Fabacher. We find nothing in this record to support a thesis upon which the Fabachers, who were content to wait and see what would happen in lieu of taking any affirmative legal action in their own behalf, are entitled to greater protection than National Leasing, who proceeded in a manner somewhat inconsistent with the specific terminology of the “leases.” We see no support in the record for a finding that any of the parties deluded or hoodwinked one another though there may be some basis for a conclusion that, at least chronologically, everybody was not informed of everything at exactly the same time. It is, nevertheless, obvious from the record that the sureties were generally aware of the informal arrangement between National Leasing and Family Pools, Inc. which had, essentially, extended the original contracts.

By answer to the appeal, Messrs. Fabacher seek judgment against J. Stanley Middleton, Jr. and Family Pools, Inc. “as expressed in the third party demand filed in these proceedings, and only to the extent to which said judgment may be modified in the appellate court casting appellees (the Fabachers) in any judgment to the original plaintiff herein.”

Our review of the record indicates that notification of such devolutive appeal was served on Family Pools, Inc. and Stanley Middleton through Dudley A. Phillips, Jr., on April 10, 1975, but there are no appearances in this court by or in behalf of those parties.

In their brief, counsel for Messrs. Fabacher make no reference to the situation as between themselves and Family Pools, Inc. and Middleton. However, we conclude that, by operation of law, the rights of Messrs. Fabacher are entitled to be preserved as against Family Pools, Inc. as principal and Middleton as cosurety.

Accordingly, the judgment of the 24th Judicial District Court for the Parish of Jefferson, dated January 20, 1975, must be amended and recast as follows :

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Louisiana National Leasing Corporation, and against the defendants, Family Pools, Inc., J. Stanley Middleton, Jr., She-rard Fabacher and Peter Fabacher, jointly and in solido, in the full sum of $72,020.80, together with legal interest thereon from date of judicial demand until paid, plus an additional twenty percent of said amount as attorneys’ fees, and for all costs of these proceedings, subject to a credit in the amount of $16,491.67, plus any additional amount paid to Louisiana National Leasing Corporation by Family Pools, Inc., J. Stanley Middleton, Jr., Sherard Fabacher or Peter Fabacher in satisfaction of the “rents” due under the terms and provisions of the “lease” agreements between the parties.

It is further ordered, adjudged and decreed that there be judgment herein in favor of Sherard Fabacher and Peter Fabacher against J. Stanley Middleton, Jr. and Family Pools, Inc., jointly and in solido, for such amounts as they may ultimately be obliged to pay, as sureties, to Louisiana National Leasing Corporation under the terms and provisions of those certain “leases” which form the basis for that judgment set forth in the next preceding paragraph of this decree.

Thus amended, the judgment is affirmed. Each party is to bear its own costs of this appeal.

AMENDED, RECAST AND, AS AMENDED AND RECAST, AFFIRMED.

ON REHEARING

We granted a rehearing in this matter on June 9, 1976, and, on September 15, 1976, heard oral reargument following our review of the additional briefs filed by the parties prior to oral reargument.

We first turn our attention to a consideration of the exception of no' cause of action filed in behalf of Messrs. Fabacher at the same time that their application for rehearing was filed, noting that a similar exception was filed in the trial court proceedings.

The exception is overruled. It is untimely when considered in light of its actual intended utilization (see Invest Corp. v. State of Louisiana, La.App., 247 So.2d 175). It comes at too late a stage in this litigation when considered in light of the allegations contained in all of the pretrial pleadings, including those filed by the Fabachers, which constitute a judicial admission on their part that all five documents which are the subject matter of this litigation are, at least for the purposes of resolution of the controversies here existent, leases.

Turning to the basic issue of the alleged liability of Messrs. Fabacher as sureties, we conclude that our original opinion is correct.

In addition to those observations and conclusions in bur original opinion, we note that the terms and conditions of the leases themselves provide validation of the suretyship agreements from the timely actions taken by Louisiana National Leasing Corporation to protect their interests. The Fabachers obligated themselves to pay the amounts due under the basic terms of the leases and also bound themselves to be likewise obligated for any extensions. Louisiana National ' Leasing Corporation did, in fact, timely institute the legal proceedings necessary to activate the surety-ship obligations of the Fabachers. While it is correct that the Fabachers were not served for a number of months following the original filing of the suit, we impute no calculated deception therefrom. Indeed, the record itself contains a sufficiently clear explanation of the time gap between original filing and properly accomplished service of process.

Even so, the problems created by the delay in service of process on the Fabach-ers could, in absence of contravening factors, form some equitable basis supportive of non-imposition of suretyship — onerous as it is. Yet, the record also convinces us of the existence of a relationship between Middleton and the Fabachers sufficient to discount able counsel’s earnest contention that they (the Fabachers) were totally in the dark about everything in connection with this case for the entire nine or ten month period between the filing of suit and the actual service of process. We refer to our original opinion for a more detailed discussion of this aspect of the litigation.

We do deem it helpful to clarify our original opinion of May 18, 1976, in the following particulars:

1. The judgment in favor of Louisiana National Leasing Corporation and against. Family Pools, Inc., J. Stanley Middleton, Jr., Sherard Fabacher and Peter Fabacher is a joint and in solido judgment which, nevertheless, must be reduced by the total of all payments (except “late charges”) paid to Louisiana National Leasing Corporation in satisfaction of any and all of the five “lease” agreements originally entered into between the parties.

2. The provisions of the various “lease” agreements with respect to the method to be used for the purpose of ultimately determining ownership of the “leased” equipment is not and shall not be changed in any way by this opinion but shall be determined by the provisions of those “lease” agreements, and no parties’ interests with respect to that ultimate determination shall, in any way, be either bolstered or thwarted by this opinion.

In all other respects, our opinion of May 18, 1976, shall have full force and effect.

ORIGINAL OPINION AMENDED AND, AS AMENDED, REINSTATED.

      . When the district court rendered its “Judgment” in these consolidated cases, it did not specifically deal with docket number 160-297 except with respect to reservation of certain rights on the part of the plaintiff. Nevertheless, it is obvious from the amount of the judgment in favor of plaintiff, Louisiana National Leasing Corporation, and against defendants, Family Pools, Inc. and J. Stanley Middleton, Jr., in the amount of approximately $62,000.00, that the claim set forth in docket number 160-297 was disallowed because the total demand in all five suits was approximately $72,000.00, and the total demand in docket number 160-297 was approximately $10,000.00, leaving a difference of approximately $62,000.00.

      . The Fabachers’ oral representation that they requested National Leasing to seize and sell the equipment, even if unquestioned, was little more than a gesture in view of their actual knowledge of the continuing arrangement between National Leasing and Family Pools. As acknowledged, by witness Chiek under cross-examination by Fabachers’ able counsel, they (the Fabachers) had actual knowledge of each of the payments made, after default, by Family Pools.

      . The amount of the original judgment plus $9,826.36, which is the amount claimed in docket number 160-297.

      . We are loath to indulge in legal fictions. Nevertheless, the Fabachers not only seek to close the bam door after the horse has left, they knowingly participated in opening the door in the first place by executing all of the “leases” as “sureties” for the “lessee.”


author: MORIAL, Judge. SAMUEL, Judge BEER, Judge SCHOTT, Judge

text:
    Mrs. Rosetta BAPTISTE v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC.
    No. 7278.
    Court of Appeal of. Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Concurring Opinion Nov. 16, 1976.

      Gerdes & Valteau, Louis A. Gerdes, Jr., New .Orleans, for plaintiff-appellee.
    Dillon & Williams, C. T. Williams, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA, SCHOTT, MORIAL and BEER, JJ.
   MORIAL, Judge.

Plaintiff filed this suit against Schweg-mann Brothers Giant Supermarkets, Inc., to recover damages for personal injuries and medical expenses resulting from a fall which she alleged was caused by slipping on discarded ice cream on the floor of one of the defendant’s supermarkets. Defendant answered, denying negligence on its part, asserting negligence on the part of the plaintiff, and filed a third party demand for indemnity against Norman Enterprises, Inc. and its insurer, Allstate Insurance Company, respectively, the operator of an ice cream concession in the vicinity of the fall and its insurer.

After a trial on the merits, judgment was rendered in favor of plaintiff and against Schwegmann Brothers in the sum of $1,430.00 — $1,000.00 for pain and suffering and the remainder for medical expenses. The judgment also dismissed defendant’s third party demand against Norman Enterprises and Allstate.

Schwegmann has prosecuted this appeal from that portion of the judgment awarding damages against it. Schwegmann has not appealed from that part of the judgment dismissing its third party demand and that aspect of the case is not before this court. Plaintiff has answered the appeal seeking an increase in the award for pain and suffering.

On the evening of July 3, 1971, plaintiff was a customer in defendant’s store at 5300 Old Gentilly Road in New Orleans. She completed her shopping and passed through the check-out line without incident. However, before leaving the store, plaintiff decided to purchase some roasted nuts. Leaving her loaded grocery cart with a store employee for safe keeping, she proceeded to a roasted nut counter located between the entrance doors and check-out counters in an area approximately 35 ft. wide by 450 ft. long. This is the area where customers enter and exit the store. Before reaching the nut counter she slipped on what she later learned was ice cream.

Plaintiff testified that at the time of her fall she did not see the ice cream; she claims she first saw melted ice cream on the floor sometime after she had fallen and had received assistance. Plaintiff estimated she was twelve feet from the roasted nut counter when she fell.

The confusing and frequently conflicting jurisprudence in slip and fall cases, particularly on the issue of burden of proof, appears to have been settled by the Supreme Court of Louisiana in the recent cases of Gonzales v. Winn-Dixie Louisiana, Inc. and Kavlich v. Kramer, both of which were handed down subsequent to the rendition of judgment in the instant case. In both cases the court held that when the plaintiff-customer proves there was a foreign substance on the floor, not there due to his or her fault, which caused the plaintiff to slip, fall and be injured, the defendant-store must assume the burden of exculpating itself from negligence. When, as here, it appears that a third person dropped the foreign substance, the store owner must establish that periodic inspections were made and other reasonable protective measures were taken to keep the aisles and floors free of substances or objects that may cause customers to fall. Gonzales, supra.

Of course, contributory negligence is also a possible defense, but we find no such negligence in the instant case. Another possible defense is that the foreign substance was on the floor for such a short period of time that even a most reasonable inspection procedure would not have removed its presence in time for removal before plaintiff fell.

We are not able to determine the length of time the ice cream was on the floor. The only evidence on the subject was offered by plaintiff herself. She testified she “almost” lost consciousness as a result of the fall; a security guard and another store employee assisted her from the floor and helped her sit in the area where groceries were placed into bags for customers, a procedure which consumed several minutes. Her testimony as to the time which elapsed between the fall and when she first saw the ice cream on the floor varies between a period of several minutes to an hour. Thus, the fact that the ice cream was melted when first seen by plaintiff proves nothing as to the length of time it had been on the floor prior to plaintiff’s fall. Insofar as is shown by the record, at the time plaintiff fell the ice cream could have been on the floor for a very short time or for a comparatively long time.

Our next question is whether the defendant’s periodic inspections and cleanup procedures were sufficient to discharge its burden in the instant case.

Don Hughes, the assistant store manager on the night in question testified the manager, assistant manager, three security personnel, a floor supervisor and a porter supervisor were to constantly patrol the aisles of the store with instructions to remove any debris found on the floor or contact a porter to do so immediately. In addition, stock clerks were assigned to each aisle of the store with similar instructions. On the night in question there were at least ten porters on duty in the store to attend to cleanup procedures of this nature.

Joe Walker, the porter supervisor on duty at the time of plaintiff’s fall, stated he had between ten and twelve porters on duty at the store. Each porter was assigned to a section of the store with instructions to make a round-trip inspection of his section at fifteen to twenty minute intervals. Walker testified that he himself took part in some of the cleaning in the store. At the time of plaintiff’s accident, Walker had assigned Will Matthews to the area in which plaintiff fell, and Matthews was assisted by another man.

Matthews, the porter assigned to the portion of the store where plaintiff fell, confirmed he had a man on duty with him at the time. The procedure followed by him and which he instructed the other porter to follow was to cover each section of the area to which he was assigned once every fifteen to twenty minutes. Matthews indicated he and the other porter patrolled an area approximately thirty feet wide by half a block long. While there was some dispute at the trial regarding the half block measurement, it appears Matthews and his assistant were assigned to patrol an area approximately 35 ft. wide and 450 ft. long.

While the record does support the conclusion that the defendant had established a system of cleanup procedures, it is devoid of evidence from which to conclude that the scheduled cleanup or inspection procedures were in fact carried out. Further, the spill of ice cream was within plain view of everyone in the heavily traversed area between the entrance doors and thirty-five (35) check-out counters. The two porters on duty in the area where plaintiff fell should have seen that which was obviously discoverable by them. There is no showing from the record that any of the check-out cashiers or baggers were in a position where they could have seen the ice cream on the floor. Nevertheless, it is inescapable under the circumstances of this case that the defendant failed to discharge its burden of proving that it was reasonably prudent in its exercise of duty and care owed to a customer in a self service grocery store. Kavlich, supra.

Our careful evaluation of plaintiff’s injuries compels us to conclude that the award to her is reasonable, fair and adequate.

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.

SAMUEL, Judge

(dissenting).

I must disagree with the basic holding of the majority, that “While the record does support the conclusion that the defendant had established a system of cleanup procedures, it is devoid of evidence from which to conclude that the scheduled cleanup or inspection procedures were in fact carried out.” Instead of being “devoid” of such evidence, the record actually contains abundant evidence showing that scheduled, and clearly adequate, cleanup or inspection procedures (the majority does not question the adequacy of the procedures) were in fact being carried out at the time the accident occurred. That evidence, which is correctly stated in detail in the majority opinion, i.e., the testimony of the assistant store manager, the porter supervisor, and the porter on duty in the area of the fall, is totally uncon-tradicted and is not questioned by the trial court.

Both of the latest Supreme Court cases on the subject, Gonzales v. Winn-Dixie Louisiana, Inc., La., 326 So.2d 486, and Kavlich v. Kramer, La., 315 So.2d 282, hold that a store owes a duty of reasonable care under the circumstances to protect its customers from foreign objects or substances on its floors; reasonable protective measures, including adequate periodic inspections, must be taken by the store to keep its aisles and floors free of objects or substances which may cause customers to fall; and if the evidence brought forward by the store establishes that such reasonable protective measures were being taken at the time of the accident, the store is free from fault and cannot be held liable.

The conclusion here reached by the majority makes a mockery of this rule. I know of no requirement that the defendant store prove its use of reasonable protective measures beyond the proof required in any other civil ease, i.e., by a preponderance of the acceptable evidence. As stated above, the present defendant has met that burden and I wonder what kind or amount of proof the majority would require.

Nor can I agree with the apparently alternative basis for liability as expressed in the next-to-last paragraph of the majority opinion, that the two porters on duty in the area where plaintiff fell should have seen the spill of ice cream “which was obviously discoverable by them.”

In the first place, this conclusion ignores the fundamental question implicit in this type of slip and fall, which is: For what length of time had the ice cream been on the floor? Obviously, if it had been on the floor for a sufficiently long time as to be discoverable by adequate, regular and periodic inspections, its non-discovery and non-removal would result in liability on the part of the store. Equally obviously, if the accident occurred immediately or very shortly after the ice cream had fallen to the floor, no amount of reasonable inspection or cleanup procedures could be expected to result in its discovery and removal by store employees and under these circumstances there would be no such liability. Here the majority opinion states, as I believe it must in order to be correct, that there is no way of determining the length of time the ice cream was on the floor.

In the second place, if the ice cream was so obviously discoverable, why wasn’t the plaintiff guilty of contributory negligence in failing to see that substance at the time of her fall? She was certainly under a duty to observe where she was walking, and she was not in an area where objects offered for sale were present upon shelves of various sizes and heights so as to cause her to focus her attention on those objects; in fact, she was not concerned with the purchase of anything other than the roasted nuts; with that single exception, she had completed her shopping.

As I would render judgment in favor of the defendant and dismiss plaintiff’s suit, I respectfully dissent.

BEER, Judge

(dissenting).

I respectfully dissent for the reasons expressed by SAMUEL, J.

SCHOTT, Judge

(concurring in the denial of the application for rehearing).

In its application for rehearing defendant has taken sharp issue with the statement contained in the majority opinion that the record “is devoid of evidence from which to conclude that the scheduled cleanup or inspection procedures were in fact carried out.” Having re-examined the record, I agree with defendant that the statement complained of is not entirely accurate since there was, indeed, some evidence that the inspection procedures discussed in the opinion were in fact carried out. However, in my opinion such evidence was not sufficient to warrant a reversal of the judgment of the trial court in the light of the recent jurisprudence controlling slip and fall cases in self-service supermarkets.

In the first place, the trial court made a finding of fact that the ice cream was on the floor long enough for it to melt, and while he made this finding in the context of the then prevailing jurisprudence that the burden was on the plaintiff to establish how long the foreign substance was on the floor before the burden shifted to the defendant to exculpate itself from negligence, the only change in the jurisprudence is that plaintiff is relieved of this burden in the first instance and a mere showing that a foreign substance is on the floor places the burden of proof on the defendant to exculpate itself from negligence, irrespective of the length of time the foreign substance has been on the floor.

Thus, we have in the instant cases a gratuitous finding by the trial court that this substance was on the floor for some time from which I would conclude that defendant is liable based upon Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976) and Kavlich v. Kramer, 315 So.2d 282 (La.1975).

Although the Court in the Gonzales case specifically declined to adopt a rule that the storeowner insures the customer’s safety it is arguable that the effect of the case is to adopt that rule. Surely, it made the defendant liable even if the spill of olive oil occurred only moments before plaintiff slipped and fell on the substance. See dissent of Justice Summers, 326 So.2d 490. The case seems to eliminate entirely the significance of the time frame in which a substance remains on the floor and makes unimportant in deciding the case whether the location of the accident in the store was inspected five minutes or five hours prior to the substance getting on the floor. The only way a defendant can exculpate itself from liability under the Gonzales decision is to prove that the substance got on the floor only a moment before the fall so that it was physically impossible for defendant to detect and/or remove the substance and thereby prevent the accident. Only to that extent can it be said that the storeowner is not the insurer of the customer’s safety.

In the instant case there is no evidence that this particular spot where the spill of ice cream was located had been checked only a few moments before the fall. On the contrary, the trial judge’s findings indicate that it was there for a longer period of time than just a few moments. Under these circumstances Gonzales would not warrant a reversal.

Kavlich supports an affirmation even more so. There the court acknowledged evidence of cleanup procedures which required a cleanup of the area where plaintiff fell just two hours before it occurred. The court said:
“. . . We are concerned with what happened in that two-hour period and with what degree of reasonableness the employees of the store acted in that period of time. The two employees in the store at the time of the accident testified they could have seen the banana because they were in a position behind the cash register and front counter to observe clearly the area where it was located. Obviously, the banana was observable. The employees testified that they were not extremely busy and that few customers had been in and out of the store during the two-hour period. Both employees testified they had traversed the area where the banana was located immediately before Mrs. Kavlich slipped and fell. One of them testified further that she was watching the floor that day even at the time the plaintiff fell.” (Emphasis supplied).

I recognize that the Court in Kavlich practically found actual knowledge of the hazard, and not mere constructive knowledge, but the language seems to require that the storeowner explain what measures were taken to inspect and cleanup until the very moment that the accident occurred in order to avoid liability.

Furthermore, in Kavlich the Court made a distinction in what should be observed by a storeowner as compared to what should be observed by a customer:

“We conclude that the defendants have not borne the burden of proving that they were reasonably prudent in their exercise of duty and care owed to a customer in a self-service grocery store. They should have seen that which was obvious to a careful observer. They should have observed that which they testified they were trained to discover. The defendant’s employees were negligent in failing to remove the piece of banana upon which Mrs. Kavlich fell.” (Emphasis supplied).

In their dissent in the instant case, my colleagues ask why wasn’t the plaintiff guilty of contributory negligence if the ice cream was so obviously discoverable. I respectfully submit that Kavlich answers that question. There the Court said the piece of banana on which Mrs. Kavlich slipped “was easily seen,” and while the employees of the store were found to be negligent for failing to discover and remove the hazard, contributory negligence on Mrs. Kavlich’s part was not discussed. It seems to me that the Court placed a greater degree of care on the storeowner to discover the hazard than on the customer.

I therefore concur in denying defendant’s application for rehearing.

      . 326 So.2d 486 (La. 1976).

      . 315 So.2d 282 (La.1975).


author: JONES, Judge.

text:
    Jacob Emanuel CHARLESTON et al., Plaintiffs-Appellants, v. Wade O. MARTIN, Jr., Secretary of the State of Louisiana, et al., Defendants-Appellees.
    No. 13044.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    Bruscato & Loomis by J. Anthony Brus-cato, Robert P. McLeod, Monroe, for plaintiffs-appellants.
    William J. Guste, Jr., Atty. Gen., State of La., Baton Rouge, J. Carl Parkerson, Dist. Atty., Monroe, Brian E. Crawford, Gilbert T. Brown, Jr., Burt W. Sperry and Richard H. Pipes, Asst. Dist. Attys., for defendants-appellees.
    Before BOLIN, PRICE and JONES, JJ.
   JONES, Judge.

Plaintiffs appeal from a judgment of the trial court which vacated appellants’ temporary restraining order, denied their rule for a preliminary injunction, and denied their Motion to Destroy the Election Results.

Judgment was signed and the order of devolutive appeal granted on June 13, 1976. The appeal bond was not filed until July 16, 1976.

No appeal lies from the decision dissolving the temporary restraining order. The appeal from the judgment denying the preliminary injunction was untimely since under the provisions of LSA-C.C.P. Art. 3612 the appeal relating to a preliminary injunction must be taken and the bond filed within 15 days from the judgment. Appellants argue the decision in the trial court is “effectively” a decision on the merits and therefore is governed by LSA-C.C.P. Art. 2087, which allows 90 days for the perfection of a devolutive appeal. In support of this, appellants cite Murry v. City of Oakdale, 276 So.2d 368 (La.App., 3d Cir. 1973).

Neither this case, nor the exception it enunciates is applicable here. The court in Murry found the trial court judgment was in fact, a final judgment on the merits of the permanent injunction because it dismissed the suit.

In Benard v. Benard, 316 So.2d 877 (La. App., 3d Cir. 1975) plaintiff appealed from the denial of a preliminary injunction but did not post her appeal bond within the 15 day period required by LSA-C.C.P. Art. 3612. She contended that when a judgment rendered by the trial court after the hearing on a preliminary injunction has the effect of deciding the case on the merits, the judgment is a final judgment to which ordinary devolutive appeal delays apply. For this proposition she cited Murry v. City of Oakdale, supra. The court in Benard distinguished Murry, noting it did not deal with the timeliness of an appeal, since the appeal there had been perfected within 15 days from the signing of the judgment. The court in Benard dismissed plaintiff’s appeal, after finding that the lower court had ruled only on whether a preliminary injunction should issue, and not on the merits of the case. This is the same situation as now before us.

Since neither the trial court’s reasons for judgment nor the signed judgment rejects appellants’ petition for a permanent injunction, this appeal is from a judgment denying a preliminary injunction, and is not timely perfected and must be dismissed. Fox v. Louisiana State Racing Commission, 223 So.2d 707 (La.App., 4th Cir. 1969).

Appellants further contend this court has jurisdiction to consider the trial judge’s denial of the Motion to Destroy the Election Results because our failure to review this interlocutory order at this time may result in appellants being unable to get it reviewed later and therefore a denial of their appeal may cause them irreparable harm. Although an interlocutory decree is ordinarily not appealable, he asserts this comes within the provisions of LSA-C.C.P. Art. 2083 .

Appellants’ contention is not well founded. Art.- 2083 speaks of “ . .an interlocutory decree which may cause irreparable injury.” Appellants are urging that our failure to review will be the cause of irreparable injury, which is not within the grounds stated by Art. 2083.

Since there is no showing of irreparable injury, the trial court’s denial is a nonap-pealable interlocutory order and not before this court until a final judgment is appealed. Carville v. City of Plaquemine, 303 So.2d 289 (La.App., 1st Cir. 1973); Nicholson v. Holloway Planting Company, 262 So.2d 176 (La.App. 1st Cir. 1972).

Appellants will have an opportunity for a review of the merits of his Motion to Destroy if the result of the trial court’s decision on the permanent injunction is later appealed.

For the foregoing reasons, the appeal of plaintiffs-appellants is dismissed at their cost.

      . “Art. 3612. Appeals
      , “There shall be no appeal from an order relating to a temporary restraining order.
      “An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
      “An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.
      “Except as provided in this article, the procedure for an appeal from an order or judgment relating to a preliminary or final injunction shall be as provided in Book III.’’

      . “Art. 2083. Judgments appealable
      “An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”


author: BOLIN, Judge.

text:
    STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Mrs. Annie B. HAYWARD et al., Defendants-Appellees.
    No. 13033.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Alva J. Jones, Bryan Miller by Bryan Miller, Baton Rouge, for plaintiff-appellant.
    Cooper, Anding & Loftin by George K. Anding, Jr., Cotton & Bolton by W. D. Cotton, Rayville, for defendants-appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

Under the authority of the “quick taking” statute (La.R.S. 48:441 et seq.), the Department of Highways expropriated a portion of property owned by Annie B. Hayward and others. M. W. McKinney was the lessee of a service station located on the land taken. The parties were unable to agree on the amount due for the expropriated property and the case was tried in the district court, limited to the question of the amount due the landowners and the lessee. The landowners were awarded compensation for the value of the land taken and the improvements thereon, plus severance damage to the remainder of the land. The lessee was awarded compensation for the lease advantage of the unexpired portion of his lease. The Department of Highways appeals and we affirm.

Appellant specifies the lower court erred (1)in awarding an excessive amount to the landowners for severance damage; and (2) in awarding separate compensation to the lessee over and above the award to the landowners.

Since the district judge, in his written opinion, adequately and correctly states the law and the facts on the two questions before us, we shall not burden this opinion with details.

On the question of severance damages the lower court found accessibility to the remainder of defendants’ property and the available parking space were materially diminished and awarded $5,250 severance damages. These are compensable items in fixing an award for severance damages if there is a resulting diminution in the value of the remainder. La.R.S. 48:453; State, Department of Highways v. Randolph, 170 So.2d 397 (La.App. 3rd Cir. 1965); State, Department of Highways v. Carso, 261 So.2d 682 (La.App. 2nd Cir., 1972). We find no error in this portion of the judgment.

We next consider the award to McKinney, the lessee of the service station. McKinney leased this property for five years for $215 per month. On the date of the expropriation this lease had an unexpired term, not subject to a sublease, of approximately 36 months. The Department of Highways owes the lessee the difference between the contract rent and the economic rent, the contract rent being that which the lessee contracted to pay to the lessor and the economic rent being that which the property would bring on the market at the time of the taking.

We agree with the lower court that the unexpired portion of the lease had a value of $7,200 over and above the contract rent. This total value was discounted since the lessee could not reasonably be expected to receive this advantage in one lump sum. The lower court awarded the lessee this discounted value or $5,950 as the value of his lease advantage. The evidence supports this award. State, Department of Highways v. Cockerham, 182 So.2d 786 (La.App. 1st Cir., 1965); State, Department of Highways v. LeBlanc, 319 So.2d 817 (La.App. 1st Cir., 1975).

Even though the lessee has suffered the loss of his lease advantage, it must be determined who is liable for this loss. If the economic value of the lease was considered in valuing the lessors’ property the lessee would be relegated to recovering his loss from the lessors. However, if the lease advantage was not considered in fixing the value of the lessors’ property, the expropriator is liable to the lessee for his economic loss. State, Cockerham and State v. LeBlanc, supra.

The lower court, after considering all of the evidence, concluded that the economic value of the lease was not taken into consideration in fixing the value of the lessors’ property. We agree with this finding and conclude the lower court correctly cast the Department of Highways for the amount of economic loss of the lease advantage suffered by McKinney.

The judgment is affirmed.


text:
    WAYSIDE DEVELOPMENT COMPANY et al., Plaintiffs-Appellees, v. J. K. POST, Jr., Clerk of Court, and Jack L. Smith, Defendants-Appellants.
    No. 13034.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    Charles H. Ryan, Monroe, for defendants-appellants.
    C. Calvin Adams, Jr., Tallulah, for plaintiffs-appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

Wayside Development Company entered into a written contract with Jack L. Smith for Smith to service and lease properties located in Wayside’s shopping center in exchange for a recited consideration. This contract was recorded in the public mortgage records. Several years later Smith sued Wayside and the then owner of the property for money allegedly due him under the service contract. In connection with that suit Smith caused a notice of lis pendens, describing the leased property, to be filed in the conveyance and mortgage records. By this action Wayside and the present owner of the property seek a mandamus ordering the clerk of court to cancel the inscription of the service agreement and notice of lis pendens from the public records as constituting a cloud upon the title of the property. The lower court, finding the service contract granted Smith only a personal right rather than a real right affecting the property, order the inscriptions erased from the public records. Defendants appeal and we affirm.

The primary issue is whether or not the contract with Wayside granted Smith a real right. If the first question is answered in the negative, a secondary issue is whether a mandamus against the clerk of court is the proper procedure for having the inscriptions erased from the public records.

The controversial clause in the service contract which Smith claims gives him a real right affecting title to the property provides:

In further consideration hereof Grantee [Smith], as compensation for his services, shall receive two and one-half (2V2%) per cent of the gross annual rental of each lease renewal, payable in equal annual installments during the renewal period. All compensation to cease twenty years from date Shopping Center opens.

Smith argues the clause granting him a percentage of the rental of each lease renewal acts as an assignment to him of the right to receive a percentage of the rents generated by all leases; that when those leases were recorded in the mortgage or conveyance records of the parish in which the leased property is situated, those rights affected the title to immovable property. Cited in support of this argument is Prados v. South Central Bell Telephone Co., 329 So.2d 744 (La.1976).

We find Prados factually inapposite to this case. The appellant’s interpretation of the service contract is untenable. The agreement is merely a contract for Smith to perform services in return for a stipulated sum of money per year, together with a percentage of income generated by the leases. The contract is devoid of language assigning Smith a real interest in the immovable property to be developed. Further, the agreement does not create a lien or privi- • lege on the property which, under Louisiana Civil Code Article 3185, must be provided for by law. We have been cited to no codal article or statute granting or creating a lien or privilege on the property to secure a claim arising from this type of contract. State ex rel. Gulf States Land & Industries v. Montegut, 189 So.2d 9 (La.App. 4th Cir., 1966).

Since the service contract did not affect title to realty the clerk of court had a ministerial duty to cancel the inscription of the contract and the notice of lis pendens from the public records. Upon failure of the clerk to comply with this request, mandamus was the proper legal procedure for compelling the recorder to cancel these inscriptions. State v. Montegut, supra, and State ex rel. Kabel v. Register of Conveyances for Parish of Orleans, 94 So.2d 105 (La.App. Orleans, 1957).

The judgment is affirmed at appellant’s cost.


text:
    Harry J. ROTHRING et al., Plaintiffs-Appellants, v. The TRAVELERS INDEMNITY COMPANY et al., Defendants-Appellees.
    No. 13035.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.

      Wilkinson, Carmody & Peatross, by Samuel W. Caverlee, Shreveport, for plaintiffs-appellants.
    Joseph R. Bethard, Shreveport, for defendants-appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Factual issues only are presented in this appeal by plaintiffs whose demands for damages sustained by them as a result of a pickup truck-motorcycle collision were rejected below. We affirm.

The accident occurred at the intersection of E. Preston and Audubon Streets in Shreveport. Audubon intersects E. Preston on the south side creating a T-intersection. E. Preston at the site of the accident and for several hundred feet east and west is 44 feet wide. Although this unusual width is sufficient for a four lane street, a City of Shreveport traffic engineer established that E. Preston is only a two lane street divided in the center by double yellow lines at the site of the accident, and the area adjacent to the curb is available for parking.

Plaintiff, Valerie Rothring (hereafter Valerie), who was aware E; Preston had only one lane available for eastbound traffic, was proceeding east on E. Preston on her motorcycle one and a half to two motorcycle lengths behind, and to the right of an eastbound truck operated by defendant, Wilfred L. Bennett. Bennett commenced a right turn into Audubon but prior to the completion of his turn, Valerie’s motorcycle collided with his right front. Valerie testified Bennett commenced his right turn from the extreme left side of the portion of E. Preston located south of the double yellow lines, without giving any signal of his intention to turn and in the process of turning, he crossed her path of travel. She took unsuccessful evasive action by pulling to the right and collided with Bennett’s truck.

Bennett testified he commenced his right hand turn while traveling down the right hand side of his eastbound lane with the right side of his truck four or five feet from the curb and the left side of his truck 10 feet from the centerline. Bennett testified he had activated his right blinker signal a considerable distance west of the point where he commenced his turn, and although he maintained frequent observations in his rearview mirrors (one on the left and the other inside his truck), he never observed the motorcycle and was unaware of its presence until the collision occurred.

At the time of the collision, Samuel E. Smith was proceeding north on Audubon approximately 75 feet south of Audubon’s intersection with E. Preston, and testified he saw Bennett in the process of making the turn and that Bennett’s truck was near the curb on the south side of E. Preston. He further testified as Bennett was in the process of making the turn, the motorcycle suddenly appeared between the curb and Bennett’s truck. Smith said there was very little room between the curb and the truck at the time the motorcycle appeared. He failed to observe whether Bennett’s right turn blinker was on.

The trial court found Bennett commenced his right turn while near the curb on the south side of E. Preston. However, the trial court found Bennett was negligent for failing to signal his intention to turn. The trial court also found Valerie, when Bennett commenced his turn, was traveling too close to the rear of the truck and failed to maintain a proper lookout which caused her to be forced to attempt to avoid the accident by pulling to the right, or while traveling behind the slow-moving truck, she attempted to pass it on the right at the time the truck commenced its right turn, and in either event she was guilty of negligence which contributed to the accident.

While the trial court made no specific finding with regard to plaintiffs’ plea of last clear chance, the fact that plaintiffs’ damages were rejected constitutes a holding that Bennett did not have the last clear chance to avoid the accident. Valerie was traveling, according to her testimony, very close to the rear and to the right of the truck, a position where Bennett was unable to observe her in spite of his frequent observations in his rearview mirrors. Bennett had no reason to anticipate that a following motorist would travel to his right thereby using a portion of E. Preston as a second eastbound lane. His inability to see her in spite of these observations, effectively denied him an opportunity to avoid the accident because he was unaware of her presence.

On appeal plaintiffs assert as error, the trial court’s failure to hold Bennett’s negligence to be the sole cause of the accident, or that Bennett had the last clear chance to avoid same.

In Rea v. State Farm Mutual Automobile Insurance Company, 149 So.2d 136 (La.App., 2d Cir. 1963), the court held the last clear chance doctrine was inapplicable where a right-turning motorist was unable to observe in his rearview mirror another vehicle traveling to his right on a blacktop area on the shoulder which the court referred to as a parking area.

In Coleman v. Van Dyke, 277 So.2d 709 (La.App., 2d Cir. 1973), defendant motorist, while being followed very closely by a motorcycle operated by plaintiff who from time to time traveled along the right side of defendant’s automobile, turned right into a parking lot, at which time the motorcycle collided with the right front of defendant’s automobile. The court made the following observations with regard to the duty of a following motorist:

“A motorist approaching a motor vehicle from the rear while both vehicles are traveling in the same direction is under a duty to exercise great care, sometimes referred to as extraordinary care. Burns v. Evans Cooperage Co., 208 La. 406, 23 So.2d 165 (1945); ....
“As was observed by the Supreme Court in the Burns case, in holding negligent the driver of an overtaking vehicle who failed to maintain a proper lookout and to observe the slowing of a forward vehicle in preparation of a turning movement: ‘It is the duty of the driver operating an automobile, upon approaching another automobile from the rear while both cars are traveling in the same direction, to exercise a great deal of care. He must look out for the person ahead, realizing that that person is engaged in handling a high-powered machine requiring constant attention and that his lookout is forward and not backward. The driver of the rear car must keep a safe distance behind the front car and must have his machine under such control as to avoid injury to the car ahead or to his own car so long as the driver of the front car is driving in accordance with his rights.’ 23 So.2d 165, 169.” Id. page 711.

The court found the motorcyclist was guilty of negligence in following the forward vehicle too closely and failing to maintain a proper lookout, and in attempting to pass defendant’s vehicle to its right. The facts in Coleman are very similar to those in the instant case. The findings of negligence in Coleman are also very similar to the findings of negligence of the trial court with reference to Valerie Rothring.

Plaintiffs cited numerous decisions in their brief, all of which are distinguishable on the facts from the instant case, and a review of these would serve no useful purpose.

It is significant to recognize the trial court was essentially faced with the evaluation of the testimony of these three witnesses to the accident, along with the testimony of the investigating officers, in arriving at its decision rejecting plaintiffs’ demands. The court in written reasons made the following finding with regard to Valerie’s negligence:

“But by the same token, I think the young lady was following too close and maybe looking off and did one of several things; either thought she had room to pass — the man was going a little slow— and got inside of him, and he turned right, or else she was too close when he started to turn right, and she took evasive action and went to the inside thinking she had a better chance going there than the outside. I don’t know. It is difficult to say, but I think one of either of those two things happened.”

In Canter v. Koehring Company, 283 So.2d 716 (La.1973) the court made the following observations with regard to the weight a trial judge’s opinion should be given:

“ * * * [Wjhere there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Id. p. 724.

There is ample evidence in the record to sustain the findings of the trial judge and we affirm his decision at plaintiffs’ cost.