author: BOUTALL, Judge. BOUTALL, Judge. BEER, Judge, LEMMON, Judge,

text:
    Mrs. Nancy Nuebel, widow of Burton T. BLANCHER, Individually and as natural tutrix and administratrix of minors Burton T. Blancher, II and Leslie Kay Blancher v. Grady SAMUELS et al. John L. DIMICELI, Jr. v. Grady SAMUELS, a/k/a Grady Samuels, Jr., et al.
    Nos. 7750 and 7751.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearings Denied Jan. 11, 1978.
    Writs Refused Feb. 24, 1978.

      Leonard A. Washofsky, Jackson & Hess, New Orleans, for Mrs. Nancy Nuebel Blancher, et al, plaintiffs-appellants-appel-lees.
    W. Paul Andersson, Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for Hendee Haulers and Employers Commercial Union Ins. Co., defendants-appellants.
    Dillon & Williams, Gerard M. Dillon, New Orleans, for T. L. James & Co., Inc. and Aetna Casualty & Surety Co., for Autry Young, defendant-appellee.
    John J. Hainkel, Jr., Porteous, Toledano, Hainkel & Johnson, New Orleans, for John L. Dimiceli, Jr. and The Allstate Ins. Co., defendants-appellants.
    Melvin W. Mathes, Beard, Blue, Schmitt & Mathes, New Orleans, for Grady Samu-els, Hamilton Miller, Jr., H & M Truck Service, Inc., The Fidelity & Casualty Co. of N.Y. and Market Ins. Co., defendants-appellants.
    Steven K. Faulkner, Jr., Morphy, Hol-brook & Faulkner, New Orleans, for John L. Dimiceli, Jr., plaintiff-appellee.
   These appeals were originally heard by a 3 judge panel who agreed on every issue save one, damages for loss of love and affection of decedent. As to that issue alone, reargument was granted before a 5 judge panel as provided by Article 5, Sec. 8(B) of the Louisiana Constitution of 1974. The separate decisions are handed down herewith:

ON THE ORIGINAL HEARING

Before BOUTALL, SCHOTT and BEER, JJ.

BOUTALL, Judge.

These appeals arise from a judgment pursuant to a jury verdict awarding damages to the plaintiffs in two consolidated cases arising from an automobile-truck collision. Because of the numerous parties and the legal issues presented, it is necessary to set out the posture of the case briefly.

A suit for damages was filed by Mrs. Nancy Nuebel Blancher, in her own behalf and on behalf of her minor children, as the result of the wrongful death of Burton T. Blancher, her 29 year old husband and the children’s father, which occurred on November 11,1970 in the City of New Orleans, when the 1969 Chevrolet in which their decedent was a guest passenger collided with a dump truck, fully loaded with sand, on temporary Interstate Highway 10 at a point about 250 feet east of the Burg Canal Expansion Bridge. Made defendants in this suit were Grady Samuels, Jr., the operator of the dump truck; H & M Truck Service, Inc., the dump truck’s owner; Fidelity & Casualty Company of New York, and Market Insurance Company, insurers of H & M Truck Service, Inc.; Hendee Haulers and Commercial Union Insurance Company; L. Murphy Trucking Service, Inc. and Consolidated Underwriters (the latter two parties and their insurers being sued under the theory that Samuels, the dump truck driver, was a borrowed employee of either one or the other of them); Autry Young, an employee of /and T. L. James & Company, Inc. and Aetna Casualty & Surety Co. (T. L. James was sued under three distinct theories of liability: 1) Samuels was a borrowed employee of T. L. James: 2) T. L. James was vicariously liable for the negligence of Young while acting as temporary flagman; and 3) T. L. James was guilty of independent negligence proximately causing the accident); Boh Brothers Construction Co., Inc. and Travelers Insurance Company (these parties were voluntarily dismissed by the plaintiffs, inasmuch as the portion of highway involved was under the construction and supervision of T. L. James); John L. Dimiceli, Jr. and Allstate Insurance Company (the owner-operator and the insurer of the 1969 Chevrolet in which plaintiffs’ decedent was a passenger).

Before trial, plaintiffs Blancher compromised and settled all claims against L. Murphy Trucking Service, Inc. and its insurer Consolidated Underwriters.

Dimiceli filed a suit against all of the same parties as plaintiffs-appellants-appel-lees Blancher, for injuries he sustained in the accident. The two suits were consolidated and tried together before a jury.

The jury returned special verdicts finding that the collision was caused by the negligence of Samuels, and that at the time of the accident he was a borrowed servant of Hendee Haulers. The jury exonerated Dimiceli and Autry Young, but found that T. L. James was guilty of negligence proximately causing the accident.

The jury awarded damages to the Blanchers in specific categories. Mrs. Blancher was awarded $20,000 for loss of support from the earnings of her deceased husband from the date of the accident until the day of verdict, and $40,000 for loss of future support. She was awarded “none” for the loss of her husband’s love and affection, grief and mental anguish, past, present and future, and nothing for decedent’s conscious physical pain and suffering from the accident until his death. Each of the children were awarded the sum of $5,000 for the loss of support from the date of the accident until the verdict, and $22,-500 for the loss of future support until reaching the age of majority. They were awarded nothing for loss of love and affection, etc. Dimiceli was awarded $3,000 for his injuries.

Fidelity & Casualty Company of New York and Market Insurance Company paid their policy limits and appealed on behalf of Samuels devolutively. T. L. James and Hendee Haulers and their insurers appealed suspensively. Plaintiffs Blancher appealed devolutively from the dismissal of H & M Truck Service, Inc., Autry Young and John L. Dimiceli. Plaintiffs Blancher also appealed on the basis of the inadequacy of the awards made by the jury, seeking an increase in amount of loss of support and seeking an award for the loss of love and affection.

The first issue to be considered is the negligence of the two drivers, Samuels and Dimiceli. While their testimony agrees as to the events leading up to the area of the collision, they differ as to how the collision happened. Dimiceli’s version was that Samuels’ dump truck, loaded with dirt, had pulled onto the road at the intersection with Paris Road and had proceeded along in front of him, until it began to slowly and gradually pull off the road and stop on the shell shoulder. As his car drew abreast of the dump truck, suddenly the dump truck’s left front came out on the road and there was nothing he could do to avoid the impact. The right front of his car struck the left front tire of the dump truck. Samuels’ version was that he had pulled off the road in response to a signal from one of T. L. James’ workmen, Autry Young, whom he understood was hailing him to stop so that he could dump his load of river sand. He came to a complete stop with his truck fully off the roadway parallel to it and remained stopped until the Chevrolet driven by Dim-iceli ran into his truck while still completely on the shoulder.

The Dimiceli account was corroborated by the testimony of two witnesses, Osker Thomas, who was driving a pile truck just behind Dimiceli, and Wallace Alphonso, Jr., who was working across the roadway from the collision, and by the physical facts testified to by the investigating officer of the New Orleans Police Department, Patrolman Mack.

Thomas, who was driving one vehicle back from Dimiceli, testified that the vehicles were all behind the dump truck proceeding at about 35 or 40 miles an hour when the dump truck pulled off onto the shoulder of the road and got all of the way off of the pavement, about a foot to 2 feet. At that point he saw the dump truck’s reverse light come on and he noticed that the dump truck backed up and cut his wheel to back off the road in such a manner that caused the left front wheel to come out on the pavement of the highway, at which time there was an immediate collision with the Dimiceli automobile. He further testified that there was no indication by way of sign or flagman that the truck would be backing up. He repeated many times over in his testimony that there was no doubt in his mind but that the Samuels dump truck had entered onto the highway with his left front tire and fender and that the Dimiceli car was in its proper lane of traffic and not speeding at the time of impact.

Wallace Alphonso, Jr., an engineer’s aide employed by Boh Bros. Construction Company, was working across the highway prior to and at the time of the accident. He testified that he saw the entire accident and the occurrences immediately prior thereto. His testimony supports that of Thomas to the effect that he saw the line of vehicles with the dump truck in front, etc., coming at a low rate of speed down the highway, saw the dump truck pull off to the right shoulder and then, after stopping just for a moment, begin to back up and during this backing maneuver the front of the dump truck came back onto the road striking the Dimiceli automobile which was passing at the time.

The testimony of these two witnesses is further corroborated by the testimony of Patrolman Mack who specifically noted gouge marks on the surface of the road made at the point of impact between the vehicles. In his investigation he made a number of measurements and noted the locations of the vehicles and damages to the vehicles. From these physical facts he concluded that the point of impact was approximately 73 inches onto the paved roadway. Additionally there were photographs entered into the evidence which would seem to negate the accident happening in the manner described by Samuels.

The Samuels’ version of the accident, that his truck was parked completely off the paved roadway and was stopped, was supported by the testimony of the temporary flagman, Autry Young, and Ouida Robin, a cateress serving sandwiches across the highway at the time of the accident. The testimony of this last witness may be disregarded entirely because she states that when she drove upon the scene the dump truck was already parked on the side of the road and was there for at least ten minutes before the accident occurred. This flies in the face of the testimony of every other witness concerned. The testimony of Autry Young is also suspect to some degree, because at the moment of impact he was walking away with his back to the area and he could not see the impact. Nevertheless both of these witnesses testified that the dump truck was stopped and that Dimiceli was passing the piling truck at a great rate of speed immediately before swerving back into his lane of traffic, apparently lost control and collided with the dump truck.

The jury made a specific finding of negligence on the part of Samuels and no negligence on the part of Dimiceli. We believe that a fair analysis of the evidence offered supports such a finding. Additionally, because of the conflict in testimony, we note that in reaching its verdict the jury must have believed the Dimiceli version and the witnesses in support of it as opposed to the Samuels version and the evidence in support of it. We of course are governed by the rule of Canter v. Koehring, La.Sup. 1973, 283 So.2d 716, that where there is evidence before the trier of fact, which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Our evaluation of the testimony and the evidence convinces us that there is no manifest error on the part of the trier of fact and we would affirm the jury’s findings in that regard.

We now pass to a consideration of the negligence of Autry Young, the flagman, and T. L. James, his employer. It should be noted that the jury returned a finding of no negligence on the part of Young, but did find negligence on the part of T. L. James.

The evidence concerning Young is that he was a labor employee of T. L. James, engaged in hooking up pipes with one of the construction gangs. His crew was one man short and for that reason the foreman Willie Chamberlain was operating a front-end loader. As they needed more sand in their operation, Chamberlain told Young to stop the approaching Samuels’ truck for more mud. Young testified that he gave the truck driver a hand-signal to pull over to the side of the road, when the truck was about 100 to 150 feet in front of him. Samuels then pulled his truck onto the shoulder and stopped 5 or 6 feet past Young. Young testified that he told Samu-els to pull up and remain there until the front-end loader was moved and the area was prepared to take the sand. He then turned and walked away from the truck when the collision happened. He denies any attempt to direct Samuels to back up, and indeed Samuels says that he was stopped at the time of the collision. Accordingly there was no evidence to show that Samuels’ subsequent maneuver was under the direction of- Young. Thus we find, as did the jury, that there was no negligence on the part of Young. He was simply told to have the truck pull over onto the shoulder and he did so, and the’ truck was in a place of safety.

The jury, in its special findings, found negligence on the part of T. L. James and that its negligence was a proximate cause of the collision. Because of the finding of no negligence by Young, T. L. James’ employee, the verdict had to be based on the proposition that T. L. James, was negligent in its breach of the duty of care owed to motorists who were using the roadway while the construction job was going on.

The roadway in question was a well trav-elled, important, through highway and, because it was proceeding through largely unoccupied territory, was subject to being travelled at relatively high speeds. T. L. James & Company, Inc. was the prime contractor for the construction of á new highway in this area, and was required to maintain traffic while engaged in construction. The general area was marked by signs such as “Road Construction Ahead”, “Speed Limit 45 miles per hour” and “Do Not Pass”. T. L. James contends that these signs were sufficient to put drivers and particularly Dimiceli on notice that one could expect construction type activity alongside the road. On the other hand, we note that there were no signs warning Dimiceli or other motorists that trucks would be unexpectedly entering or leaving the highway at this worksite off of the highway. Further T. L. James had no flagmen on the highway at this point either to flag down construction vehicles or control other vehicular traffic.

The issue here is not one of finding of fact, the facts are clear, but the application of law to those facts. The trial judge gave the following jury charge which we believe to be a correct summation of the applicable law.

“A contractor is under a duty to give reasonable notice to the traveling public on a highway under construction or undergoing repairs and open to public use of any unusual or hazardous condition of the road created by said construction or repair. However, the mere breach or commission of an act of negligence does not alone render the contractor liable for damages resulting from an accident on such a highway.
“The act of omission or act of commission must be a proximate cause of the accident. Where a motorist involved in an accident is already aware that work is in progress in the area, aware of the speed limit therein, and already has knowledge of any notice or warning which is a contractor’s duty to give, any insufficiency of such warning is not considered to be a proximate cause of the accident. However, if a specific hazard exists not known to and a contractor has knowledge or should have knowledge thereof, the contractor has a duty to give reasonable notice to the traveling public of the specific hazard in question. Failure to give such a reasonable notice may constitute proximate cause.
“The failure of a person to anticipate that another will act negligently does not constitute negligence.”

The evidence shows that driver Dimiceli was well aware of the construction going on. In fact he was proceeding at a reduced rate of speed because of it. As stated by the court in Muse v. W. H. Patterson & Co., 182 So.2d 665 (La.App. 1st Cir. 1965):

“The purpose of signs was to impart knowledge on a road condition to the traveling public. If it already possesses this knowledge, the signs then become superfluous.”

The question narrows down to whether T. L. James should have had a flagman controlling traffic at this point. Had the accident occurred because of the manner in which the dump truck left the road or stopped, there would be a basis of the jury finding we could support. However, this accident was caused by the action of the truck driver in backing up from a safe position contrary to his instructions. It is not reasonable to impose on T. L. James the duty to determine that the driver would violate his instructions and engage in an independent act of negligence. If there was some negligence on T. L. James, through its use of an untrained flagman to direct this truck, that negligence is not a proximate cause of the accident. The negligence of the truck driver is the sole proximate cause. See Muse v. W. H. Patterson & Co., supra; Sumrall v. Aetna Casualty & Surety Co., 124 So.2d 168 (La.App.2nd Cir., 1960); Harvey v. Great American Indemnity Co., 110 So.2d 595 (La.App.2nd Cir. 1958).

We reverse the verdict against T. L. James.

Having disposed of the issues of negligence, we now pass to the assessment of liability against those parties not primarily negligent but who may be vicariously responsible for the negligence of Samuels, the dump truck driver.

When plaintiffs Blaneher filed their suit, it was contended that although Grady Sam-uels, Jr. was the employee of Hamilton Miller, or H & M Truck Service, Inc., his corporation, at the time of this accident, that employer-employee relationship had been suspended, and in fact Grady Samuels, Jr. was the employee of one of three possible parties: a) T. L. James, under the theory of Richardson v. Tate, La.App. 4th Cir. 1972, 269 So.2d 278; or b) L. Murphy Trucking Service, Inc., under the theory that once Samuels left in H & M’s truck # 83 from its yard and arrived at the Murphy sandpit, he was under the control and supervision of Murphy in all of his activities, and was effectively working for Murphy in the completion of its contractual obligations with T. L. James to furnish river sand to the job-site; or c) Hendee Haulers, which co-partnership had effectively taken over Murphy’s contract with T. L. James to provide trucks and drivers to the James construction site and furnish the sand it ordered. As has been stated above the jury found that at the time of this accident, Samuels was the borrowed servant of Hendee Haulers, and we agree.

Counsel for Hendee Haulers contend that Samuels was an employee of H & M, and that Hendee Haulers acted simply as a truck broker in securing H & M’s services to Murphy, and that Hendee’s only interest in the matter was to collect $1 per load payment for financing the operation. Relying on the case of Benoit v. Hunt Tool Company, 219 La. 380, 53 So.2d 137 (1951) they contend that the general employer is presumed to be and remains the employer until there is a contrary showing sufficient to overcome the presumption, and that the test for such a determination is who had the right of control over the individual at the time of the accident. It is urged that the intentions of the parties are of paramount importance in this determination, citing Barrois v. Service Drayage Company, 250 So.2d 135 (La.App. 4th Cir. 1971). We are further referred to a number of decisions involving particular points of employer-employee relationship and are especially referred to 2 cases which, because of a similar factual situation, are deemed controlling of the issue here. Hanover Insurance company v. Security Insurance Company, 191 So.2d 672 (La.App. 2nd Cir. 1966) and Johnson v. Royal Indemnity Company, 206 F.2d 561 (C.C.A. 5, 1953).

We do not dispute the tests announced in the Benoit ease, and indeed we endorse them. However, we believe the factual circumstances here to be different than those in Benoit and the other two cited cases. The evidence in this case shows that L. Murphy Trucking Service, Inc. had entered into a contract with T. L. James & Company for furnishing and delivering in place some 473,000 cubic yards of river sand at a price of $1.45 per yard to be used by James in the construction of a segment of Interstate Highway 10. Murphy was in the businesses of owning and operating sand pits from which sand was excavated to be placed upon its own trucks for delivery to customers, or to be sold to other truck operators for their own purposes. For some time Murphy carried on its business with T. L. James, furnishing daily the sand required as ordered by T. L. James. T. L. James exércised no control over any of the trucks, and simply placed its order for the necessary amount of sand to be delivered at particular places along the construction work. The only control over the drivers exercised was to point out to them the place where the sand was to be dumped. Under these facts, the jury found that driver Sam-uels was not a borrowed employee of T. L. James, and we agree.

In the course of time, Mr. Murphy became ill and Mrs. Murphy was having difficulty in carrying on the Murphy business. She had been approached earlier by Alex Palama, representing Hendee Haulers, a partnership between him and Louis Johnson, with a proposition that Hendee Haulers would take over the T. L. James contract. This she had refused, but when it became apparent that she could not supervise the entire Murphy operation, she decided to accept Palama’s offer. According to the agreement between them, Mrs. Murphy would operate her sand pit and supervise the loading operations. Palama, and Hen-dee Haulers, would take charge of the furnishing of the necessary trucks and the delivery operation. Mrs. Murphy testified that Palama was to have control over all of the trucks, making sure that the trucks were on the job and that everything was run perfectly. She required that Palama furnish insurance, both workmen’s compensation and liability insurance, to cover the trucks on the job. For this, Hendee Haulers was to be paid $1.00 a load.

Although Palama’s testimony contradicts this agreement, when we consider the rather evasive nature of the testimony of Pala-ma and the jury’s finding, we conclude that the testimony of Mrs. Murphy is more credible and formed a basis for the jury verdict. It should be noted that it was expected that the income to Palama and Hendee Haulers would come to approximately $50,000 on this job. In addition, Hendee Haulers contracted with Mrs. Murphy for furnishing the materials for another job of land fill, called the Complex Job which was also a rather extensive operation. Because of the large number of trucks involved in these operations, Palama secured a number of trucks from different trucking companies in order to fulfill his quotas.

The evidence further shows that the procedure as to utilization of the trucks was as follows: Palama contacted H & M truck Service, the employer of Grady Samuels, and the owner of the truck involved in the collision. H & M furnished several trucks per day to Hendee Haulers, and each morning the trucks would depart the H & M yard and proceed to Murphy’s sand pits. From that time on they were completely under the control of Palama who ordered them to haul sand to either the T. L. James jobsite or the Complex jobsite. On the date of the accident Samuels’ truck had carried eleven separate loads of mud, the first load to the T. L. James job, then two to Complex and the balance to the T. L. James job, at which time the accident happened.

The resolution of the issue of the right of control such as would constitute an employee-employer relationship is dependent upon the facts in each case. It is apparent from the above related facts that L. Murphy Trucking Service, Inc. did not exercise any control over the truck in question, but that all control over the truck was vested in Hendee Haulers, through its partner, Palama. Although the record reflects some dispute about the extent of this control, there is ample evidence to show that once the truck left the H & M yard, Palama was the man who issued the orders controlling its use. This control was complete except for the limits as expressed by Miller of H & M that he could not expect the truck to do anything illegal or dangerous, as he put it “As long as it was within limits, in other words, if he was to tell them to go drive the trucks off in the river they ain’t going to do that. They’re only going to do what is right.” While it is shown that the driver Samuels was paid by Miller, who had hired him, and who could fire him, nevertheless he could be removed from this particular job of hauling by Palama at will, and Palama was required to carry insurance protecting him and the truck. We believe that these facts constitute a sufficient basis to support the jury’s finding that driver Grady Samuels, Jr., was indeed the employee pro hae vice of Hendee Haulers and we affirm that finding.

We now pass to a consideration of the quantum of damages awarded.

The plaintiffs Blancher have appealed that portion of the judgment relating to quantum contending that the damages awarded were so inadequate as to be an abuse of discretion by the jury. The jury awarded Mrs. Blancher $20,000 for loss of support from date of accident in November, 1970 until date of trial in March, 1975. She was awarded $40,000 for future loss of support. Each of the two minor children were awarded $5,000 for loss of support from accident until trial and $22,500 for loss of future support until they reached the age of majority. The Blanchers rely upon the testimony of an economist, Dr. Goodman, of Tulane University who testified that considering the factors of the expected working lifetime, the expected or projected future income, and the means of finding a sum which, if invested today in the safest possible way, would pay the survivors that income which the decedent could be expected to earn, less his own personal maintenance expenditures, that figure would be approximately three times the amount that which was awarded.

We note that there is no mathematical formula to determine how much an award for wrongful death and resulting loss of support should be. McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183 (1961). The income tax return submitted in evidence in this case shows that for the year of decedent’s death, decedent had a reported income of $6,766.00 which was derived from the operation of a small grocery and a small electronics business owned and operated by him. The income tax for the two years prior to decedent’s death showed an even lower income for the decedent. We note that the award for loss of support from date of accident to date of trial fairly approximates an amount consistent with the past earnings. On the other hand, the amount that was awarded for future support is considerably less than the amount sought.

To counter plaintiff’s claims, the defendants argue that the jury would only properly consider an award for loss of earnings in an amount sufficient that if invested in a safe manner it would return an amount of income yearly sufficient to replace the amount of support that was supplied by the decedent previously. As evidence of this there was submitted examples of investments such as bank or homestead certificates of deposit, investment in Blue Chip stock, and other relatively safe investments. In considering all of the evidence, while it is our opinion that the amount awarded for future loss of support is rather low, we cannot say that the trier of fact abused its discretion in fixing the amount of the award and substitute our opinion for the amount determined.

Plaintiffs further point out that the jury failed to award anything for the pain and suffering that the deceased may have experienced prior to his death. We note that at the time of the collision, Blancher was asleep in the front seat of the car. He survived the impact for several minutes, but the evidence shows (although only by lay testimony) that he was never conscious to any extent other than that he was breathing and made some gurgling and choking sounds. There is nothing to indicate that he was aware of what happened to him or that he suffered any conscious pain. Blanchard v. Rodrigue, 340 So.2d 1001 (La.App. 1st Cir. 1976). There is no basis for such an award.

However, we note that the jury refused to award any sum to plaintiffs for their loss of love and affection and their grief and mental anguish due to the death of their husband and father. On this issue we have disagreed and in accordance with La. Constitution of 1974, Art. 5, § 8(B), we have referred it to a 5 man panel of this court for reargument and decision as to whether the amount of damages should be increased.

A final element of these appeals to be considered is the argument of Employers Commercial Union Insurance Company, insurer of Hendee Haulers. This insurer contends, under the insurance policy of H & M Trucking Service carried by Fidelity & Casualty of New York and Market Insurance Company, and the jurisprudence of this state, that H & M’s insurers are liable for the amount of interest accrued on the entire judgment, or their pro-rata share thereof, until the insurance policy proceeds are paid. For this proposition we are referred to the case of Richardson v. Tate, 269 So.2d 278 (La.App.1972). However we note that the Richardson case does not stand for the proposition as contended. The primary insurer is liable for the interest on the judgment up to the amount of the coverage of the primary policy, and the excess insurer is liable for the remainder of the interest on the judgment.

We affirm the judgment of the trial court as to liability for the interest on the judgment.

Accordingly, for the reasons above expressed, we reverse that portion of the judgment finding T. L. James & Company, Inc. and Aetna Casualty & Surety Co. liable and dismiss the judgment against them. We affirm the judgment in all other respects, pretermitting the issue of whether the quantum of damages awarded should be increased.

REVERSED IN PART; AFFIRMED IN PART; SUBMITTED FOR REARGUMENT IN PART.

ON REARGUMENT

Before LEMMON, STOULIG, BOU-TALL, SCHOTT and BEER, JJ.

BOUTALL, Judge.

These appeals were originally heard before a three-judge panel of this court. One of the appeals was by Mrs. Nancy Nuebel Blancher, for herself and on behalf of her minor children, assigning as error, along with issues already considered, the failure to grant some award for loss of love and affection, grief and anguish resulting from the death of husband-father, Burton T. Blancher.

In this case the jury was issued a set of special verdicts and interrogatories because of the complexity of the legal situation and the number of parties involved. See C.C.P. Art.. 1811 and 1812. We reproduce here the pertinent part that applies to Mrs. Blanch-er.

“10. What sum of money, paid in cash today, would fairly compensate Mrs. Nancy Nuebel Blancher for the death of her husband in each of the following respects:
(a)The amount to reasonably reimburse her for the loss of support reasonably to be expected from the date of the accident, November 11, 1970 until today, from the earnings of Burton T. Blancher
$20,000.00
(b)The amount to reasonably reimburse her for the loss of support reasonably to be expected from today until the expiration of Burton T. Blancher’s working life expectancy from the earning of Burton T. Blancher
$40,000.00
(c)The amount to reasonably reimburse her for the loss of her husband’s love and affection and the grief and mental anguish she may have sustained and might reasonably continue to sustain as a result thereof
None
(d)The amount to reasonably compensate for the conscious physical and mental pain and suffering if any, sustained by Burton T. Blancher from the accident until his death
None”

Similar special findings were addressed on behalf of each child resulting in each being awarded $5,000 for loss of support to trial date and $22,500 for loss of future support until reaching the age of majority. Each was awarded “NONE” for loss of love and affection, etc.

We can find no basis in the record for the jury’s failure to award the surviving spouse and the minor children a sum as appropriate compensation for the loss of their husband-father. Such an award is clearly authorized under our Codal law. C.C. Art. 2315 grants, among other things, the surviving spouse and children the right to recover the damages which they sustained through the wrongful death of the deceased. These damages include not only loss of support, but also loss of the love and affection of the decedent and the grief and anguish of the survivor. Cacibauda v. Gaiennie, 305 So.2d 572 (La.App. 4th 1974); Tillman v. Canal Insurance Co., 305 So.2d 602 (La.App. 1st 1974). While the jury has much discretion in fixing such damages under C.C. Art. 1934(3), it errs as a matter of law in refusing to fix any at all when the facts show entitlement to some amount. For a similar situation, see Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4th 1976) wherein the jury answering “interrogatories” awarded “None” as damages for pain and suffering.

The stipulations show that Burton Blancher was married to Nancy Nuebel and the father of the two minor children. At the time of accident, Blancher was 29 years old, Mrs. Blancher was 26, Burton Jr. was 8 and Leslie 6. The Blanchers had been married for 8V2 years.

A number of witnesses testified that the marriage was a happy one and that the family association was very close. The Blanchers had known each other since their early teens and had never dated anyone else seriously. Mrs. Blancher worked with her husband in his business and it is apparent that both of them took pains to accommodate each others wishes and to make their married life more enjoyable. Considering the working hours of the parents, there was an excellent relationship with the children. Mr. Blancher spent considerable time with them and there was mutual love and affection between them.

Based on these facts we would award the sum of $25,000 to Mrs. Blancher as surviving spouse, and the sum of $12,500 each to Burton Jr. and to Leslie, the children.

We recognize that these sums are somewhat lower than recent awards in comparable cases, but we feel constrained to fix the amount at the lowest adequate amount the jury may have awarded. Although this is not a situation where we simply increase an inadequate award, we conclude that the principle announced in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) is still persuasive to our setting an amount here at the lowest adequate amount. We call attention that the entire jury awards are on the low side and we should fix a comparable award.

Accordingly, we would amend the judgment appealed and as affirmed by the original panel by increasing the amount of the award as follows:

“That there be judgment herein in favor of plaintiff, Mrs. Nancy Nuebel Blancher, in the full sum of $87,718.78, and in favor of Mrs. Nancy Nuebel Blancher as tutrix and administratrix of the estates of the minors Burton T. Blancher, II, in the sum of $40,-000.00 and Leslie Kay Blancher in the sum of $40,000.00.”

AMENDED AND AFFIRMED IN PART.

BEER, J., concurring in all respects but one, and in that instance, dissenting.

LEMMON, J., concurring.

BEER, Judge,

concurring in all respects but one and, in that instance, dissenting.

I am in full agreement with the majority regarding all aspects of this opinion except that portion of same which changes the jury’s action regarding loss of love and affection.

In my view, the jury is properly presumed to have given due consideration and deliberation to the entirety of plaintiffs’ claims. Their refusal to respond to this particular aspect of plaintiffs’ demands (or their selective determination that this part of plaintiffs’ claims had been adequately taken care of in the overall totality of the awards to plaintiffs) constitutes, I believe, a reasonable, responsive and, accordingly, acceptable basis for handling the matter as they did. In my view, the jury considered and, for reasons best known to them, cogently rejected this aspect of plaintiffs’ claims. This is reenforced by my belief that the original quantum of the awards, as rendered in the trial court, would have all been properly affirmed by this court had they been before us as the result of a general verdict, not itemized. Accordingly, I respectfully dissent from this portion of the opinion.

LEMMON, Judge, concurs and assigns reasons.

When the finder of fact, whether a jury answering special interrogatories or a trial judge, itemizes awards for each specific element of damages in a tort case, an appellate court should review the judgment on an item by item basis and apply the pertinent standard of appellate review to each item.

Some elements of damages are susceptible of calculation to a greater degree of mathematical certainty than others. The existence of separate standards for reviewing differing types of evidence on various elements of damages demands that each award be reviewed separately.

Thus, if the record in an automobile accident case contains uncontradicted evidence that plaintiff sustained a property damage loss of $100.00 after being reimbursed by his collision insurer for all of that loss except the deductible, and the trier of fact awarded $200.00 for this item, the award should be reduced. Or if the trier of fact awarded zero, the judgment denying that item should be reversed in that respect. The reviewing court should take such action even if the cumulative amount of all awards, viewed in relation to all the damages sustained, would not warrant modification, because in each case the trier of fact committed a demonstrable error of law.

In the present case the trier of fact’s denial of any award for loss of love and affection was erroneous as a matter of law. This court must correct that error, notwithstanding the adequacy or insufficiency of the total award in relation to the total damages.

LEMMON, Judge,

concurs in the denial

of the application for rehearing and assigns reasons.

I agree with plaintiffs’ contention on application for rehearing that we are not bound in this case by the Coco rationale that an appellate court can modify an award only to the extent of raising it (in the case of an increase) to the lowest point reasonably within the discretion of the trier of fact. This case does not involve the modification of an award for loss of love and affection, etc., but constitutes reversal of the jury’s denial of a plaintiff’s demand for general damages. The award should be fixed solely on the record, without according any weight whatsoever to the jury’s denial of that demand.

However, since the awards had been set by two members of the original panel and concurred in by one judge added to comprise the five-judge panel, I simply concur that the awards are within the range of reasonable discretion.

Furthermore, I wish to add the following observation in support of my original concurring opinion.

When an appellate court reviews a lump sum jury verdict in a tort case involving several elements of compensable damages, the appellant who contends that the jury failed to award a proper amount for example, for loss of love and affection, grief, mental anguish, etc., is usually unsuccessful because of the difficulty in demonstrating the jury’s intention as to an award for any specific element of damages. Thus, in view of the wide discretion allowed the trier of fact as to some elements of damage, it is difficult for the appellant to demonstrate that the jury erred as a matter of law on the award for any particular element.

This situation does not obtain, however, when the jury answers interrogatories as to each element of damages. The jury’s intention is stated as to each award, and either party has the opportunity to demonstrate error of law in each award.

The appellant in this case demonstrated an error of law in the jury’s patent failure to grant any award for general damages for loss of love and affection, grief, mental anguish, etc. We must correct this error, irrespective of the correctness or incorrectness of any other portion of the judgment, as it cannot reasonably be assumed that the jury compensated for this apparent error in the other two awards involving loss of support.

      . For example, a specific award for loss of wages in a personal injury case involves evidence of the period of disability and the rate of earnings, and it would be manifestly unfair to review such an award by use of the standard applicable to awards for pain and suffering.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Louis R. ROTHBARD v. Joseph R. GERACE, as Administrator of the Louisiana Department of Employment Security, Department of Labor, State of Louisiana.
    No. 8756.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.

      Derbes & Derbes (James G. Derbes), New Orleans, for plaintiff-appellee.
    Phelps, Dunbar, Marks, Claverie & Sims (Harry A. Rosenberg), New Orleans, for defendant-appellant, Homecraft Corp.
    Marion Weimer, James A. Piper and James A. McGraw, Baton Rouge, for defendant-appellee, Joseph R. Gerace, as Administrator of the Louisiana Dept, of Employment Security, Dept, of Labor, State of La.
    Before REDMANN, LEMMON and STOULIG, JJ.
   LEMMON, Judge.

In defendant employer’s appeal from a judgment awarding plaintiff unemployment compensation benefits, the sole issue is whether plaintiff was disqualified for benefits under R.S. 23:1601(2) because he was terminated for misconduct connected with his employment.

Plaintiff appeared in proper person at the hearing before the appeals referee, but the employer merely submitted affidavits and made no appearance. The affidavits were incorporated in the record and considered by the appeals referee in reaching his decision.

The threshold issue is the effect of the admission of the hearsay evidence.

Many Louisiana intermediate appellate decisions have followed the “residuum rule”, which holds generally that hearsay evidence, at least when not objected to, may be used in administrative proceedings for limited purposes such as corroboration, but that such evidence cannot form the sole basis of the decision. Toliver v. Doyal, 297 So.2d 476 (La.App. 2nd Cir. 1974); Gardere v. Brown, 170 So.2d 758 (La.App. 1st Cir. 1964); 36 A.L.R.3rd 12 (1971).

The basic premise of these decisions is that while R.S. 23:1634 requires a court to accept the factual findings of the board of review which are supported by sufficient “evidence”, the “evidence” referred to in the statute means competent evidence. Hall v. Doyal, 191 So.2d 349 (La.App. 3rd Cir. 1966). According to that reasoning, a court determining sufficiency of evidence (which is a question of law) must find some competent evidence to support an administrative decision and cannot affirm the decision solely on hearsay evidence.

The “residuum rule” has been criticized on the basis of the trend in non-jury cases and administrative proceedings to replace rules of evidence with discretion. It is argued that the exclusionary rules of evidence necessary for jury trials are not directly related to the reliability of such evidence, and when hearsay declarants are not available to testify and the hearsay evidence appears reliable and is not likely under the demonstrated circumstances to yield to cross-examination, an administrative tribunal should be allowed reasonable discretion to receive such evidence and consider it in the light of all circumstances in reaching a decision. See Davis, Administrative Law § 1407 (3rd ed. 1972).

It is not necessary, however, to decide whether to apply the “residuum rule” in this case. The plaintiff himself testified as to the circumstances surrounding his termination, and he admitted the behavior described in the affidavits. However, he attempted to explain and justify that behavior. Accordingly, the evidentiary value of the affidavits is not a problem in this appeal, which turns on plaintiffs own testimony attempting to justify his behavior.

Plaintiff testified that he was hired on July 30, 1975 as division comptroller and purchasing agent for defendant, a residential construction company; that he was setting up an accounting system and making all purchases for a new division; that he agreed to work 10 hours per day and a half day on Saturdays and willingly worked much longer hours and on Sundays, and was well compensated; and that because of the tremendous amount of work at that stage of operations the company provided him with a secretary. He complained that David Bower, the division president, became friendly with his secretary, and when she refused his request to work overtime (because of a previous commitment) on September 30, Bower undermined his authority by requiring him to give advance notice for overtime in accordance with company policy, a policy that plaintiff considered unreasonable. Plaintiff also complained that Bower did not support him in a confrontation with one construction superintendent who ordered too much materials and with another who propped his feet on plaintiff’s desk and otherwise didn’t respect plaintiff’s office. Plaintiff felt he had a “title and no power” and was the “laughing stock of the division”. In order to “put some amount of pressure” on Bower so as to “get my authority back”, plaintiff decided to move his office to another division office in a different section of the city. When he informed Bower of the unauthorized move (which came right after another confrontation with the secretary on overtime), Bower fired him.

Plaintiff therefore admitted he deliberately refused to report to his assigned place of work and to follow a company policy with which he disagreed. This evidence established a disregard for standards of behavior which an employer has a right to expect of its employees, and such substandard behavior constitutes misconduct associated with employment. Horns v. Brown, 243 La. 936, 148 So.2d 607 (1963). Furthermore, plaintiff’s explanation of his behavior was implicitly rejected by the appeals referee as not reasonably justified under the circumstances. The trial judge erred in substituting his judgment for this reasonable determination by the appeals referee.

The judgment is reversed, and plaintiff’s suit is dismissed.

REVERSED AND RENDERED.

      . The agency determination that plaintiff was disqualified was affirmed by the appeals referee, after a hearing, and ultimately by the board of review. The district court reversed, and that judgment is now before us for consideration.

      . Professor Davis’ analysis is arguably not applicable to the present case because the declar-ants were readily available to give testimony subject to cross-examination.

      . The referee’s findings of fact were based entirely on plaintiffs testimony, except for one reference to Bower’s affidavit about the reason for plaintiffs dismissal.


author: SCHOTT, Judge.

text:
    Eugene E. SCHAEFER, Jr. v. Patricia Adam SCHAEFER.
    No. 8537.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.

      Cabral, Daniel & Merlino, Harry R. Cabral, Jr., Metairie, for defendant-appellant.
    Wiedemann & Fransen, Lawrence D. Wiedemann, New Orleans, for plaintiff-ap-pellee.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   SCHOTT, Judge.

Mrs. Schaefer has appealed from a judgment dismissing her rule to accumulate past due alimony pendente lite.

Included in the default judgment of separation taken by Mr. Schaefer on July 24, 1974, was a provision granting Mrs. Schae-fer alimony pendente lite in the amount of $350 per month “and granting further alimony pendente lite equal to one-half (V2) of all dividends received from Delta Centrifugal Casting Corporation and from McGoey’s Supply Company, Inc. after the plaintiff has paid taxes on these dividends, payable when received.” The rule to accumulate past due alimony was concerned with Mr. Schaefer’s alleged failure to pay the amount due Mrs. Schaefer out of such dividends.

Mrs. Schaefer relies on an entry in the financial statements prepared by Bourgeois, Bennett, Thokey & Hickey, a firm of certified public accountants and given to the Board of Directors of McGoey Supply Company on January 28, 1976. In those statements is contained an entry that $61,781 was paid in dividends during the fiscal year ending July 31, 1975.

This corporation was a “Subchapter S” corporation (26 U.S.C.A. § 1371, et seq.) until August 1, 1974, pursuant to an election made on August 1, 1972, while Mr. and Mrs. Schaefer were married. Mrs. Schaefer participated in this election by signing a consent form as Mr. Schaefer’s spouse in community. The Subchapter S election was terminated on August 1, 1974.

On his 1974 individual income tax return, also prepared by the Bourgeois, Bennett, Thokey & Hickey firm of accountants, Mr. Schaefer reported as “Income from Partnerships, Estates or Trusts, Small Business Corporations” some $30,626 from McGoey Supply Company. As income from dividends he reported $3,051 from McGoey.

He testified that the $30,626 represented his share of the $61,781 shown on the financial statements as dividends but that this was not dividends as such but rather his taxable share of the corporation’s profits for the fiscal year ending July 31, 1974. Asked when he received these funds, he testified that he received $13,480.77 in October, 1974, and $12,000 in November.

The effect of an election by a corporation as to Subchapter S tax status is that the corporation is not subject to corporate income tax. 26 U.S.C.A. § 1372(b). As a further result, undistributed taxable income of the corporation must be included in the gross income of the shareholders. § 1373(a). Undistributed taxable income is defined in § 1373(c) to be taxable income less the amount of money distributed as dividends during the taxable year.

There is no evidence that McGoey distributed any dividends during the taxable year ending July 31, 1974. As to the payments made to Schaefer in October and November, 1974, by the corporation these were apparently made in accordance with § 1375(f)(1) which provides that such distributions made on or before the 15th day of the third month after the close of the taxable year shall be treated as distributions of the corporation’s undistributed taxable income and shall not be considered as dividends. From this we have concluded that the trial judge was correct in deciding that Mr. Schaefer’s share of the $61,781 was not dividends.

Thus, Mrs. Schaefer was entitled only to a share of the dividend in the amount of $3,051 paid in the first quarter of McGoey’s 1974-1975 taxable year after it terminated its Subchapter S election. Since she was paid this amount and is entitled to no more the judgment appealed from is affirmed.

AFFIRMED.


author: PER CURIAM.

text:
    David POWELL, Sr. v. ORLEANS PARISH SCHOOL BOARD, Galvez Hotel Incorporated and Employers Casualty Company.
    No. 8711.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Jesse S. Guillot, New Orleans, for plaintiff-appellant.
    Polack, Rosenberg, Rittenberg & Endom, Franklin V. Endom, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, BEER and BOWES, JJ.
   PER CURIAM.

After trial, in which all parties were exceptionally well represented by able counsel, the trial judge rendered written findings of fact and reasons for judgment as follows:

“David Powell, Jr., a member of a high school band, went to Galveston, Texas for a band festival. The trip was under the auspices of his school, 0. Perry Walker High School and the Orleans Parish School Board.
Almost immediately upon the arrival of the three buses at the hotel and before all the checking in was completed, some of the students went swimming in the pool. Powell’s father testified that his son was not a swimmer, did not care for and in fact was afraid of the water. However, eyewitnesses to the tragedy testified that:
Young Powell was seen alone, on the diving board, at the deep end of the pool. No one was forcing him to dive in the pool; there was no horseplay or clowning around. He voluntarily dove into the pool and some few minutes later was found on the bottom. He was lifted out of the pool by another student and pulled up to poolside by others, including a chaperone. Two chaperones were on hand and immediately responded. One chaperone had been graduated from an advanced first aid class and was specially trained in artificial respiration and mouth-to-mouth resuscitation. This was applied until an ambulance arrived, and the boy placed on oxygen. He was pronounced dead on arrival at the hospital. At least five additional female chaperones were watching the pool activity and were close to hear normal conversations among students (some 40-50 feet away). The crux of the plaintiff’s case is that his son (a few months away from his eighteenth birthday) was a good, obedient and gifted boy. He allowed the boy to go on this band trip because he believed there was to be adequate supervision by adult chaperones and that this was not supplied. The preponderance of the evidence is to the contrary. The trip was planned in advance, parents adequately informed and there were more than a dozen parents and teachers on the trip acting as chaperones. These adults did a good job of maintaining order on the buses, chaperoning at poolside and in and around the hotel. The plaintiff gave written permission for his son to use the swimming pool on this trip. He had no reason to believe that the adult chaperones knew (they did not) that the boy could not swim and/or to expect a special chaperone to be assigned to his son alone during the course of the holiday. If the Powell boy could not swim and was afraid of water, as his father testified, the father should not have given written permission for him to use the pool. If this was a conditional permission, the condition should have been made known to the school authorities and was not. If the boy could not swim and was afraid of water, why did he voluntarily dive into the deep end of a pool?
Under such circumstances, the Court cannot find any evidence which would show negligence on the part of the Orleans Parish School Board. Plaintiff’s lawsuit will be dismissed at his expense. Even trying the case by stipulation, under the comparative negligence law of Texas, the Court cannot assess any fault against defendants.”

The record amply supports the conclusions painstakingly arrived at by the able trial court, and we adopt same as our opinion. The judgment is affirmed, at appellant’s cost.

AFFIRMED.


author: GARSAUD, Judge.

text:
    Mrs. Augustine M. LORASO et al. v. Melrose ALBRITTON and Allstate Insurance Company.
    No. 8722.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Tooley, Gardner & Waldmann, John F. Tooley, Jr., Gretna, for plaintiffs-appellants.

      Porteous, Toledano, Hainkel & Johnson, Christopher E. Lawler, Daniel R, Hynes, New Orleans, for defendant-appellee.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   GARSAUD, Judge.

This is an appeal from a judgment for defendant resulting from a jury verdict which found contributory negligence on the part of Donna Loraso, the minor daughter of the plaintiff, Augustine Loraso. ' Plaintiff had sued individually and on behalf of her minor daughter, Donna, to recover damages for personal injuries suffered by her daughter, as well as for property damages, all resulting from a two-car collision in the customer parking lot of the Westside Shopping Center in Gretna, Louisiana.

Plaintiff alleges as error the failure of the trial court to include a special interrogatory for submission to the jury relative to the necessity that contributory negligence be a proximate cause of the accident and further alleges error in the finding that plaintiff, Donna Loraso, was contributorily negligent in the operation of her vehicle.

There are only two issues to be resolved: (1) whether the failure of the trial court to give the special interrogatory amounted to reversible error; and (2) whether the finding of the trier of facts is supported by the evidence.

As we believe there is no manifest error in the jury’s conclusion that the plaintiff’s actions constituted contributory negligence causing the accident, the only viable issue remains the question of the failure of the trial court to give the special interrogatory as requested. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976).

The special interrogatories submitted to the jury, from which the requested interrogatory was omitted, were as follows:

“We, the jury in the above-entitled and numbered cause, find that the answers to the interrogatories submitted to us by the Court are as follows:
INTERROGATORY 1
Was defendant, Melrose Albritton, negligent?
YES_NO_
If your answer is “NO,” you will return a verdict for defendants.
If your answer is “YES,” you will have a second question to answer, namely:
INTERROGATORY 2
Was the negligence of defendant Mel-rose Albritton a proximate cause of the accident?
YES_NO_
If your answer is “NO,” you will return a verdict for defendants.
If your answer is “YES,” you will have a third question to answer, namely:
INTERROGATORY 3
Was Donna Loraso contributorily negligent?
YES_NO_
If your answer is “YES,” you will return a verdict for defendants.
If your answer is “NO,” you will return a verdict for plaintiffs and will then find the amount of their damages.
JURY VERDICT
We, the jury in the above-entitled and numbered cause find for the plaintiff, Mrs. Augustine M. Loraso, individually and as natural tutrix of her minor daughter, Donna Loraso and assess damages at_DOLLARS ($ );
OR
Check box if applicable:
We the jury find for the defendants. () GRETNA, LOUISIANA, this 25 day of October. 1976.”

Plaintiff contends that a fourth interrogatory should have been included to ask if the negligence of plaintiff was also a proximate cause of the accident. Conceding that the omission may have been improper, it is necessary nevertheless to determine whether the omission was prejudicial error. Lauro v. Travelers Insurance Co., 261 So.2d 261 (4th Cir. 1972), writs denied 262 La. 188, 262 So.2d 787 (1972).

Prejudicial error regarding the omission could occur in this case only if the jury had reason to believe a verdict for defendant was returnable on the sole finding of plaintiff’s contributory negligence. The record will show clearly, however, that the jury did not act on that limited belief. The trial court had specifically instructed it otherwise. In his charge to the jury, the trial judge noted several times the necessity of finding that plaintiff’s negligence was also a proximate cause of the accident. Specifically, he charged:

“Contributory negligence is fault on the part of a person injured which cooperates in some degree with the negligence of another and so helps to bring about the injury. By the defense of contributory negligence the defendant, in effect, alleges that even though the defendant may have been guilty of some negligent act or omission which was one of the proximate causes the plaintiff herself by her own failure to use ordinary care under the circumstances for her own safety at the time and place in question also contributed one of the proximate causes of any injuries and damages plaintiff may have suffered.
The burden is on a defendant alleging the defense of contributory negligence to establish by a preponderance of the evidence in the case the claim that the plaintiff herself was also at fault and that such fault contributed as one of the proximate causes of any injuries and consequent damages plaintiffs may have sustained.
The issues to be determined by the jury in this case are these: First, was the defendant negligent. If your answer to that question is no, you will return a verdict for the defendant. If your answer is yes, you then have a second issue to determine. Namely, second, was the negligence of the defendant a proximate cause of any injury or damage to the plaintiff. If your answer to that question is no, you will return a verdict for the defendant but if your answer is yes, then you must find the answer to the third question, namely, third, was the plaintiff guilty of any contributory negligence. If you should find that she was not then having found in the plaintiff’s favor in answer to the first two questions, you must find the amount of plaintiffs’ damages and return a verdict in the plaintiffs’ favor in that amount. On the other hand if you find from a preponderance of the evidence in the case that the plaintiff was guilty of some contributory negligence and that the plaintiff’s fault contributed as a proximate result of any injuries which plaintiff may have sustained, you will not be concerned with the issue as to damages but will return a verdict for the defendant.
If you should find one, that the defendant was not negligent or two, that the defendant was negligent but such negligence was not a proximate cause of any injury or damage sustained by the plaintiff or three, that some contributory negligence of the plaintiff proximately contributed to help cause all the injury or damage of which plaintiff complains, then your verdict should be for the defendant.” (Tr. pp. 263-265) (Emphasis added.)

We find that the omission of the special jury interrogatory was not prejudicial to the plaintiff’s case, as the jury was fully and specifically apprised by the trial court in its charges that the plaintiff’s contributory negligence must be a proximate cause of the accident in. order to find for the defendant. The judgment is therefore affirmed.

AFFIRMED.

      . The Court discusses the question in the framework of “proximate cause” and not “duty risk,” as the trial court used that analysis and no objection was raised thereto.

      . Plaintiff and friend testified that her car had encroached only three feet into defendant’s oncoming lane and that roadway here was 32 feet wide. Defendant and her mother testified that her car was wholly within her lane and that roadway was only 22 feet and plaintiff encroached onto her lane.


author: BOWES, Judge.

text:
    ST. JAMES BANK AND TRUST COMPANY v. BOARD OF COMMISSIONERS, PONTCHARTRAIN LEVEE DISTRICT and Farmer Construction Company, Inc.
    No. 8702.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Gary J. Beauchamp, LaPlace, for plaintiff-appellee.
    Dale, Owen, Richardson, Taylor & Mathews, Carey J. Guglielmo, Baton Rouge, Tom Kliebert, Gramercy, for defendants-appellants.
    Before GULOTTA, BEER and BOWES, JJ.
   BOWES, Judge.

This is a suit by the plaintiff bank to recover funds paid by it in exchange for defendant’s warrant. The major issues raised on appeal were covered by the trial judge in a most scholarly manner, and we adopt his reasons as our own:

“REASONS FOR JUDGMENT
The Board of Commissioners for the Pontchartrain Levee District issued a warrant directed to the State Comptroller payable to Farmer Construction Co., Inc., in the sum of $32,084.10. Farmer Construction Co., Inc., negotiated this instrument to St. James Bank and Trust Co. in exchange for two cashier’s checks. Before the warrant reached the State Comptroller however the Board of Commissioners stopped payment and the warrant was returned to the bank unpaid. This suit followed.
The bank contends that it is a holder in due course of a negotiable instrument as defined in LSA-R.S. 10:3-104 and as such entitled to recover from the Pontchartrain Levee District. The district contends that a warrant is not a negotiable instrument relying upon two Louisiana cases, State ex rel. Smith v. Dubuclet, 23 La.Ann. 267, and Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627, as well as authorities from other jurisdictions.
All of the cases cited by the district are inapplicable for the reason that as far as this court can determine all were based upon the ‘law merchant’ which has now been replaced by the ‘Commercial Laws’ as embodied in LSA-R.S. 10:1-101 et seq. This court has been cited to no authority which holds that a government warrant is not a negotiable instrument under the commercial law presently in force defining negotiable instruments.
In Boxwell v. Department of Highways, supra, relied upon by the defendant the court stated:
‘Then too, we agree with the district court that the warrants given by the Commission cannot form the basis of a legal demand. They are payable out of a particular fund, and hence are not negotiable instruments.’
This decision is, however, plainly overruled by LSA-R.S. 10:3-105(g), [10:3-105(l)(g)], which provides that a promise or order for payment is not made conditional by the fact that the instrument ‘is limited to payment out of a particular fund or the proceeds of a particular source, if the instrument is issued by a government or governmental agency or unit.’ The warrant here was issued by a governmental agency and in the opinion of the court meets all of the requirements of LSA-R.S. 10:3-104 for a negotiable instrument.
In the alternative the district contends that ‘Even if the warrant qualifies as a negotiable instrument, it was nevertheless a collection item and accordingly the bank should not have advanced its funds until the warrant cleared the State Comptroller and the funds were paid by the State Treasurer,’ and cites the testimony of Mr. John Anderson, graduate accountant and long-time employee of the Comptroller’s office, to this effect. Certainly this is good advice which the court is persuaded to believe the bank will take to heart in view of its experience in this case, but the court can find ho provision in the law which denies to a holder in due course of a negotiable instrument the right to recover because the negotiable instrument in question is considered by banks and the Comptroller’s office to be a collection item. Either the instrument is or is not a negotiable instrument. The law does not recognize a particular category of negotiable instruments which are somehow less negotiable because they are ‘collection’ items. Such an argument negates the whole concept of ‘negotiable’. Most banks consider that wisdom and prudence dictate that personal checks drawn on other banks by persons unknown to them be handled as ‘collection’ items, but this in no way affects their status under the law as negotiable instruments. This is a consideration of ‘collectability’ as opposed to ‘negotiability’-
Mr. Anderson testified that the instrument in question here was valid in form and regular on its face and would have been paid without question had it not been for the stop payment order. The stop payment order would have protected the district against Farmer Construction Co., Inc., but it cannot be invoked to defeat the rights of the bank as a holder in due course for value without knowledge of any equities existing between the district and Farmer.
Judgment accordingly.”

Defendant raises the issue of the bank’s negligence in making payment on the defendant’s warrant. As pointed out by the trial judge, the bank was presented an instrument which on its face met all statutory requirements of negotiability and had no notice of any defenses thereto available to the defendant. Defendant made no showing of negligence by the bank, and we conclude there was none.

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

AFFIRMED.


text:
    TRANSCONTINENTAL DRILLING CO., INC. v. DAVIS OIL COMPANY.
    No. 8742.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Moloney, Nolan, North, Riess & Hall, Bruce A. North, New Orleans, for plaintiff-appellant.
    Liskow & Lewis, Stephen T. Victory, New Orleans, for defendant-appellee.
    Before GULOTTA, BEER and BOWES, JJ.
   BOWES, Judge.

By a contract dated December 16, 1975, appellant, Transcontinental Drilling Co., Inc. (hereafter, Transcontinental), agreed to provide to appellee, Davis Oil Company (hereafter, Davis), a rig for drilling of a well known as Fleming No. 1, in Jefferson Parish. Transcontinental agreed that drilling by the rig would commence as soon as the rig became available, which was upon completion of drilling another well for Exxon. The contract further provided for a standby time rate of $5,800 per day, and defined standby time as follows:

“4.5 Standby time shall be defined as the time when the rig is shut down although in readiness to begin or resume operations but Contractor (Transcontinental) is waiting on orders of Owner (Davis) or on materials, services or other items to be furnished by Owner.”

According to appellant’s petition, the drilling rig was made available to Davis on or about December 29, 1975. Davis, being unable to commence drilling at that date, requested that the rig be placed on standby and that Transcontinental find an interim well on which to use the rig. It is further alleged that on January 25, 1976, after termination of an interim job, Transcontinental again offered the rig to Davis, and it was again placed on standby. Davis was billed for standby time, and on March 19, 1976, Davis notified Transcontinental in writing that it was not liable for standby charges. Then, on April 23, 1976, Davis notified Transcontinental that it would not drill Fleming No. 1.

As a result of these events, Transcontinental claims standby charges from December 29, 1975 through April 23, 1976, in the amount of $673,041.67, subject to a credit of $151,606.49, for revenues received from interim employment. It further claims $6,485.20 for incidental expenses, $116,000 in damages for breach of contract, and interest on all charges due at V-Mfo per month after 30 days, as stipulated by contract.

There is serious disagreement between the parties as to the facts of the case. Appellee Davis contends that, because of difficulties in financing the drilling of Fleming No. 1, it notified Transcontinental of its inability to use the rig as early as December 26, 1975, and indicated that, if able to drill at a later date, it would attempt to use the appellant’s rig. Appellee contends that at no time did it order the rig to be placed on standby, nor did it know such charges were being made until receipt of an invoice on February 6, 1976. On February 10, 1976, Davis’ representative, Robert McKnight, verbally advised Lee Matherne, Transcontinental’s president, that Davis would not be responsible for such charges. After receiving continued invoices, Davis gave written notification to the same effect to Transcontinental on March 17,1976. The billing continued until April 23, 1976, when the attorney for Davis advised appellant by letter that Davis had previously ordered work stoppage as contemplated by Article 6.1 and 6.3(a) of the contract.

Pursuant to terms of the contract, the parties’ rights thereunder were submitted for arbitration before a panel of the American Arbitration Association composed of Henry J. Dauterive, Jr., Donald W. Doyle, and Fred W. Bates. A written judgment awarding $17,490 in favor of Transcontinental was granted without written reasons, and a request by appellant for a written opinion was denied.

It is appellant’s position that absence of written reasons renders the award imperfect in form, and, in effect, denies Transcontinental information necessary to exercise its limited right of appeal under the Louisiana Arbitration Law, LSA-R.S. 9:4201, et seq. It further alleges that, because of its awarding $17,490 where a claim of over $600,000 was submitted, the judgment contains a gross miscalculation of figures.

Thus, it requests that this court either, in effect vacate the judgment and require a hearing on damages, or alternatively, hold open the determination of whether a modification of judgment is warranted and order the American Arbitration Association to provide written reasons for its award.

It is clear that under the Louisiana Arbitration Law, LSA-R.S. 9:4201 et seq., a reviewing court may not substitute its own judgment for that of the arbitrators, Housing Authority of New Orleans v. Henry Ericsson Co., 197 La. 732, 2 So.2d 195 (1941); Greer v. Lowe, 94 So.2d 560 (La.App., 2nd Cir. 1957). The statute severely restricts the circumstances in which a reviewing court may vacate or modify an arbitration award. As stated in Macaluso v. Watson, 171 So.2d 755, 758 (La.App., 4th Cir. 1965):

“. . . This authority to vacate, modify, or correct the award is limited in Sections 4210 and 4211 to cases involving fraud, corruption, prejudicial misconduct, excess of authority, error of description, miscalculation of figures, etc., and the right of appeal is also limited to the order of confirmation, modification, correction, or vacation. These sections clearly limit the function of the court and deprive it of jurisdiction of the basic legal and factual question of liability as well as quantum, (footnote omitted)”

None of the grounds listed in Section 4210 as prerequisites for vacating a judgment and ordering a rehearing (Corruption, fraud, undue means, partiality, misconduct in the proceedings, or failure to render a definite award) are alleged. Therefore, a rehearing is not warranted.

Appellant seems to base his argument for ordering the arbitrators to issue an opinion and, thereafter, modify the award, on Section 4211(A) and (C), which provides:

“In any of the following cases the court in and for the parish wherein the award was made shall issue an order modifying or correcting the award upon the application of any party to the arbitration.
A. Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
C. Where the award is imperfect in matter of form not affecting the merits of the controversy.
The order shall modify and correct the award so as to effect the intent thereof and promote justice between the parties.” LSA-R.S. 9:4211(A) and (C).

Prior Louisiana jurisprudence has dealt neither with the question of the necessity of written findings of fact in an arbitration award, nor with the prerequisites for finding a manifest miscalculation of figures.

Regarding the necessity of a written opinion, 6 C.J.S. Arbitration § 100 (1975) states the following:

“As a general rule, an arbitration award must contain the actual decision which results from the arbitrators’ consideration of the matter submitted t them, but arbitrators need not write opinions with as great specificity as a court of law. Unless otherwise provided by statute or by the submission itself, arbitrators are not required to state in the award each matter considered, or to set out the evidence, or to make findings of fact or conclusions of law. They need not give reasons for their award or conclusions or the grounds which form the basis for the arbitrators’ determination, describe the process by which they arrived at their decision, or spell out the rationale of the award, (footnotes omitted)” 6 C.J.S. Arbitration § 100.

There is no statutory requirement in Louisiana that written reasons for an arbitration award be rendered. Thus, failure to issue written reasons for judgment cannot be considered an imperfection in the form of the award. It must be assumed that the parties to the arbitration agreement were aware of the procedural rules governing arbitration. Appellant’s argument that the arbitrators’ refusal to issue written findings of fact effectively denied them the right of judicial review addresses itself to the legislature rather than to the courts.

Appellant’s other contention that no possible combination of its claims adds up to $17,490 and, therefore, there is an evident material miscalculation, also lacks merit. Obviously, any possible miscalculation of figures cannot be evident in an award wherein damages were not itemized. The law applicable in such a case is stated in 6 C.J.S. Arbitration § 168 (1975), as follows:

“Also, the court may correct an award where there has been an evident miscalculation of figures, of such character as not to affect the merits of the controversy on matters submitted; but the court will deny such relief if the miscalculation is suppositional and not evident.” (footnotes omitted).

It was conceded at appellate hearings that the arbitration proceedings had been recorded by a court reporter, but, because of the expense of transcribing such a voluminous record, it had been agreed that no transcript would be put into the record on appeal. Had a transcript been introduced, it is possible that a miscalculation of figures might have been evident. However, on the basis of the record sans transcript, the alleged miscalculation is purely suppositional. An explanation for the quantum of the award which is more plausible than miscalculation of figures is that the arbitrators, faced with both sides of the case, found $17,490 to be an equitable award.

Finding no reason to alter the arbitration award, we affirm the district court’s confirmation thereof.

AFFIRMED.

      . Those provisions read as follows:
      “6.1 OWNER’S RIGHT: Notwithstanding the provisions of Paragraph 3 with respect to the depth to be drilled, the Owner shall have the right to direct the stoppage of the work to be performed by the Contractor hereunder at any time prior to reaching the specified depth, and even though Contractor has made no default hereunder, and in such event Owner shall be under no obligation to Contractor except as set forth in subparagraph 6.3 hereof.”
      “6.3(a) If such work stoppage occurs prior to the spudding of the well, Owner shall pay to Contractor the sum of the following: (1) all expenses reasonably and necessarily incurred and to be incurred by Contractor by reason of the contract and by reason of the premature stoppage of the work, excluding, however, expenses of normal drilling crew and supervision; (2) ten percent (10%) of the amount of such reimbursable expenses; and (3) a sum calculated at the standby rate for all time from the date upon which Contractor commences any operations hereunder down to such date subsequent to the date of work stoppage as will afford Contractor reasonable time to dismantle his rig and equipment.”