text:
    Wallace S. HOOVER, d/b/a Baton Rouge Home Cleaners v. Patrick O. BEATTY.
    No. 10441.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      Richard B. Nevils, Baton Rouge, for appellant.
    Thomas R. Elkins, Baton Rouge, for ap-pellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge.

This is a suit to recover the sum of $1,887.79, allegedly due plaintiff, Wallace S. Hoover, the owner of Baton Rouge Home Cleaners, from the defendant, Patrick O. Beatty, for cleaning the defendant’s home and its contents, which were smoke-damaged by a garage fire, and alternatively for recovery based on quantum meruit. The defendant filed a general denial, and reconvened for property damage and mental anguish in the amount of $1,259.00, allegedly caused by the poor workmanship of the plaintiff’s cleaners.

Plaintiff and one of his employees who worked on this particular job testified to the work performed by the plaintiff and the manner in which the work was performed. Defendant and his wife testified to the work performed by the plaintiff, the unsatisfactory manner in which it was done, and also as to the property damage allegedly caused by said work.

After hearing the evidence, the trial court rendered judgment in favor of the plaintiff-defendant in reconvention in the sum of $383.70, dividing the costs equally between the parties. The plaintiff has de-volutively appealed this judgment. We affirm.

Although the trial judge assigned no reasons for his judgment, it can be reasonably inferred from the judgment that he did not accept completely either the plaintiff’s version or the defendant’s version of the transaction between the parties. It also appears that the judge considered that the original written contract was “almost ignored (by the parties) and they entered into an oral contract.”

The plaintiff on appeal urges us to reverse the judgment by the trial court on the ground that it is in conflict with “. . . the testimony and exhibits adduced at the trial on the merits.” Remarkably, however, the plaintiff has failed to cite any authority to support his position on appeal. Be that as it may, the appellant seemingly concedes that the evidence is in conflict, viewing the case in the following light: “The very nature of the factual situation now before the Court renders a definite decision very difficult to say the least.”

We have reviewed the evidence and the testimony of the witnesses. It is unnecessary for us to detail their testimony but suffices to say that such testimony is conflicting. There is some evidence to sustain the finding that the plaintiff performed some work at the defendant’s home and also some evidence to sustain a finding that the work was not performed in a satisfactory manner. In addition, there is some evidence to sustain a finding that defendant’s property was damaged as a result of the work performed by the plaintiff’s cleaners. We find no evidence to sustain an award for mental anguish in this case and the judgment does not reflect an award for this element of damage, although such awards are authorized by LSA-C.C. Art. 1934(3) and have been made in other cases; e. g., Jack v. Henry, 128 So.2d 62 (La.App. 1st Cir. 1961); Wolfe v. LaVasseur-Hinson Const. Co. et al, 147 So.2d 747 (La.App. 2nd Cir. 1962).

Relative to proof, the rule of law applicable is succinctly stated in the case of Rapides Packing Company v. Viking Packing Co., 246 So.2d 725 (La.App. 4th Cir. 1971), at page 726:

“As plaintiff is required to prove the allegations by a preponderance of evidence in the main demand, so it is incumbent upon the defendant to prove by a preponderance of evidence the allegations contained in the reconventional demand.”

The right of the owner to recover in an instance of this nature is provided by statute and supported by the jurisprudence.

In our Civil Code under that portion which speaks “Of The Damages Resulting From The Inexecution of Obligations", there appears Civil Code article 1930, which reads as follows:

“The obligations of contract [contracts] extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.”

And, R.S.-C.C. Art. 2769 reads:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

The latter article has been uniformly held to contemplate an implied obligation to perform the contracted services in a workmanlike or skillful manner; 44 Tul. L.Rev. 414; also Rotolo v. Stewart, 127 So.2d 24 (La.App. 1st Cir. 1961), wherein the contractor installed wet hardwood floors which warped and buckled and the owner was awarded damages to correct the defect.

We view the instant case primarily as one where the trial court has made a credibility determination in accepting the testimony of the defendant and his wife rather than the testimony of the plaintiff and his employee on the crucial question of what work was actually performed in a satisfactory manner by the plaintiff’s cleaners.

Our Supreme Court has given us a carefully considered opinion in Canter v. Koehring, 283 So.2d 716 (La.1973), setting out the principle of appellate review of facts as follows, on page 724 thereof:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where 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 on the proper allocation of trial and appellate functions between the respective courts.”

The Canter case makes it clear that when there is evidence before the trial court which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the reviewing court, in the absence of manifest error, should not disturb this factual finding by the trial court. A reviewing court must give great weight to the factual finding of the trial court, and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the reviewing court may consider that its own evaluations and inferences would lead to a different conclusion.

Our review of the evidence leads us to believe that the trial court’s judgment meets the standard of reasonableness demanded by the Canter case.

Plaintiff-appellant also put at issue an alleged compromise agreement between the parties whereby the homeowner agreed to pay $1,000.00 to appellant. The trial court’s judgment is silent in regard to that claim. In such instances, our jurisprudence is well-settled that it is presumed that the lower court denied the relief sought; see opinion of this court in Fireman’s Fund Insurance Company v. Myrick, 317 So.2d 632 (La.App. 1 Cir. 1975) and the numerous authorities cited therein. We find no manifest error in such denial.

For the foregoing reasons, the judgment appealed from is affirmed at the appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Harold John ADAMS v. CONCERTS WEST et al.
    No. 7107.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1976.

      Gauthier & Murphy, Wendell H. Gau-thier and Robert M. Murphy, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John C. Combe, Jr., New Orleans, for City of New Orleans and Travelers Ins. Co., defendants-appel-lees.
    Robert J. Young, Jr. and Edward L. Levert, Jr., New Orleans, for Concerts West and Insurance Company of North America, defendants-appellees.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit for personal injuries resulting from a fall from a balcony in the New Orleans Municipal Auditorium while attending a rock music concert. Named defendants by original and supplemental petitions are the promotor, Concerts West, its insurer, Insurance Company of North America, the City of New Orleans and its liability insurer, Travelers Insurance Company. The answers of all defendants were in the form of a general denial, alternatively pleading contributory negligence. The City and Travelers filed a third party demand for indemnification against the other defendants in the event judgment was rendered against those third party plaintiffs.

Following trial on the merits, there was judgment in favor of all defendants dismissing plaintiff’s suit and the third party demand. Plaintiff has appealed.

Plaintiff’s version of the accident is that he arrived several hours early to get a good seat. But he lost that seat by going to the bathroom at a time when the auditorium was filled to the point of overcrowding. While standing in the darkened balcony in the overcrowded auditorium, he saw a man leave a seat in the first or second row. Intending to take that vacated seat, plaintiff descended the stairs. In doing so he tripped and fell into and over the balcony railing to the first floor. Although an ambulance was sent for, he left the concert with friends.

The defendants’ version of the incident is that the hall was well lighted, crowded not to the point of overcrowding, and that plaintiff appeared either to climb over the balcony railing, hang on, and lose his grip or to voluntarily jump over the railing.

The trial court was impressed with the testimony of a police officer who was an eye witness. The officer stated plaintiff’s descent from the balcony appeared to be a voluntary jump.

The record also reflects that when plaintiff initially related the history of the incident to his treating physician, he stated he had smoked two or three joints of marijuana and was “high” at the time of the accident, that he had been leaning against a wall and, when he started to take a step, had lost his balance and fell. On a subsequent visit, plaintiff read the history taken by his doctor and attempted to correct that record to show he had smoked the marijuana prior to the time he arrived at the hospital for medical treatment, rather than prior to the fall at the auditorium. The doctor refused to make the suggested correction and there is no doubt that the original history was given voluntarily and at a comparatively unsuspicious time.

This case involves purely a question of credibility. As the trial judge had the opportunity to view and hear the witnesses, his findings may not be disturbed on appeal in the absence of manifest error. We find no such error here.

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

Affirmed.

      . Pallet v. Guillory, La.App., 315 So.2d 893; Conques v. Coleman, La.App., 315 So.2d 805; Smith v. Ranger Insurance Company, La. App., 301 So.2d 673; Cyrus v. Saragusa, La.App., 301 So.2d 427; Joseph v. Miranda, La.App., 301 So.2d 391; see also 2B La.Dig., Appeal & Error, § 1008.1 (7).


author: CUTRER, Judge.

text:
    Wilson L. GORDON, Plaintiff-Appellee-Appellant, v. GENERAL MOTORS CORPORATION and Royal Indemnity Company, Defendants-Appellants-Appellees.
    No. 5241.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 1975.
    Plauché, Smith & Hebert, by A. Lane Plauché, Lake Charles, and H. Ward Fon-tenot, Cameron, for defendants-appellants-appellees.
    Jones & Jones, by Jerry G. Jones, Cameron, for plaintiff-appellee-appellant.
    Brame, Bergstedt & Brame, by Joseph A. Brame, Lake Charles, for intervenor-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Plaintiff, Wilson L. Gordon, brought suit against defendants, General Motors Corporation and its insurer, Royal Indemnity Company, for damages allegedly sustained by him in a vehicular collision, the cause of which was alleged to have been defective ball joints on plaintiff’s GMC truck, which was manufactured by General Motors. A jury trial was held and a verdict rendered in favor of plaintiff. Judgment was signed accordingly. A motion for new trial, or alternatively for a remit-titur, was filed by defendants and the trial judge ordered a new trial unless plaintiff agreed to a remittitur within thirty days. The remittitur was timely agreed to by plaintiff and an order was signed by the trial judge denying defendants’ motion for new trial.

LSA-C.C.P. article 1813 provides as follows :

“If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or addi-tur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the amount of the excess or inadequacy of the verdict or judgment can be separately and fairly ascertained. If a remittitur or ad-ditur is entered, then the court shall reform the jury verdict or judgment in accordance therewith.” (Emphasis ours)

We note in reviewing this record that it does not contain a judgment reforming the prior judgment. Therefore, we remand the case to the district court for the sole purpose of entering a judgment reforming the original judgment to reflect the entering of the remittitur.

Remanded.


text:
    Wilson L. GORDON, Plaintiff-Appellee-Appellant, v. GENERAL MOTORS CORPORATION, and Royal Indemnity Company, Defendants-Appellants-Appellees.
    No. 5241.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.

      Plauché, Smith & Hebert, by A. Lane Plauché, Lake Charles, and H. Ward Fon-tenot, Cameron, for defendant-appellant.
    Jones & Jones, by Jerry G. Jones, Cameron, for plaintiff-appellee.
    Brame, Bergstedt & Brame, by Joe A. Brame, Lake Charles, for intervenor-appel-lee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Plaintiff, Wilson L. Gordon, brought suit against defendants, General Motors Corporation and its insurer, Royal Indemnity Company, for damages allegedly sustained by him in a vehicular collision, the cause of which was alleged to have been defective ball joints on plaintiff’s GMC truck, which was manufactured by General Motors. An intervention was filed by State Automobile and Casualty Underwriters for workmen’s compensation benefits and medical expenses paid in connection with the plaintiff’s injuries as of the date of the intervention and for all additional sums which the intervenor might be required to pay following that date. After a jury trial, judgment was rendered in favor of plaintiff awarding him $867,000, which amount was reduced by remittitur to $467,000. The judgment also recognized the intervention for workmen’s compensation benefits and medical expenses totaling $22,776.30, as of October 25, 1974, plus all additional sums which the intervenor might be required to pay in the way of compensation benefits or medical expenses following the trial.

Defendants appealed from that judgment contending that the jury committed manifest error in finding that a defect existed which caused the accident, and further contending that the award, even after being reduced by remittitur, was so high as to constitute an abuse of discretion. Plaintiff appealed, by separate appeal and by answering defendants’ appeal, contending that the trial judge erred in reducing the award and in denying plaintiff attorney’s fees. We affirm.

The pertinent facts are as follows: On February 8, 1971, Saltzman & Gordon Welding Service, Inc., purchased a new 1971 GMC truck from Martin GMC Trucks, Inc., an authorized General Motors dealer in Lake Charles, Louisiana. A standard welding body was installed on the truck by the purchasers. The truck was used primarily by the plaintiff, who was a welder with and part owner of Saltzman & Gordon Welding Service, Inc.

On May 22, 1971, about 6:00 A.M., plaintiff was traveling alone in the truck going from Kaplan to Johnson Bayou. He had traveled west on Interstate Highway 10 to Sulphur and then had turned south on Louisiana Highway 27, a two-lane blacktop highway. When he was a few miles south of Hackberry, he approached a car towing a boat trailer proceeding in the same direction. The car was being driven by Nolan Burleson and had as a passenger the Reverend Everett Schiltz. Gordon passed the Burleson vehicle and pulled back into the right lane. After he had returned to the right lane Gordon’s truck “jerked” to the right and off the road. When Gordon tried to recover the truck pulled hard to the left, pulling Gordon into the path of an oncoming truck, a large tractor-trailer unit being driven north by H. B. Stansberry. The left front wheel of Gordon’s truck collided with the dual wheels to the rear of the tractor portion of the oncoming vehicle.

Plaintiff brought suit alleging, among other things, that a defect in the lower left ball joint assembly, which permitted the truck to dart or drift, caused the accident. Defendants admitted that the ball stud in the ball joint assembly was bent, but defendant on the basis that this condition resulted from the accident and did not exist prior to the accident. A jury trial was had, and a verdict was rendered in favor of plaintiff awarding him damages in the amount of $867,000. The trial judge granted a remittitur of $400,000 and denied plaintiff’s claim for attorney’s fees. An appeal was taken by defendants. Plaintiff appealed the action of the court in granting the remittitur and denying attorney’s fees, and answered defendants’ appeal on the same basis.

Defendants argue on appeal that plaintiff has failed in his burden of proving that the ball joint assembly was defective at the time of assembly. Even assuming the defect, defendants argue that plaintiff failed to prove that the defect caused the accident. Defendants cite the following language from Weber v. Fidelity & Casualty Company of New York, 259 La. 599, 250 So.2d 754 (1971) as controlling the plaintiff’s burden of proof in this case:

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.
******
“If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.” 250 So.2d at 755.

In applying this test to the present factual situation defendants argue that there is no reasonable factual basis for the jury’s finding that the vehicle involved was defective in design, composition or manufacture, or that the defect, if present, caused plaintiff’s injuries. Defendants contend that plaintiff adduced highly questionable evidence that the loose ball joint condition existed prior to the accident.

Under the language cited from Weber, in order for the jury in this case to have rendered a verdict in favor of plaintiff they must have found as a matter of fact that there was a defect in the design, composition or manufacture of the ball joint assembly which was unreasonably dangerous to normal use, and that plaintiff’s injuries were caused by reason of the defect.

Before discussing the evidence presented in this case, it is important to note first the controlling rule on the scope of appellate review of factual issues by the appellate courts of this state:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where 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.” Canter v. Koehring Co., 283 So.2d 716, at 724 (La.1973).

With this principle in mind, we will proceed with a review of the evidence presented to the jury in this case.

Ernest Everage, one of plaintiff's expert witnesses, first examined the lower left ball joint assembly in April, 1974. At that time the cotter pins had not been removed from the ball joint studs and the entire spindle was apparently in the same condition as had existed prior to its removal from the truck. Without removing the stud from the hole, Everage could determine that the hole was “out of round”. It was his opinion that the looseness of the stud in the hole existed prior to the accident. He based this conclusion on the absence of damage to the threads of the ball joint stud, the presence of grime and a greasy buildup in the spindle and evidence that it had been moving in this buildup, and the fact that the out of round condition was 90 degrees away from the forces of impact, from side to side rather than from front to back. The ball joint assembly was again examined by Everage in October, 1974. This examination confirmed what he had concluded in April. A comparison was made with the hole in the right ball joint assembly and it showed that the left hole was egg shaped and larger. Everage again concluded that the looseness pre-dated the accident. He testified that the looseness in the ball joint stud would cause the wheel to move in and out at the bottom. This in turn would cause the truck to dart or sway back and forth across the highway. He testified that this looseness could cause the truck to pull two, three, four or five feet, and that this movement could occur without any movement in the steering wheel.

Edward Harris, a Professor of Mechanical Engineering at Tulane University, another of plaintiff’s expert witnesses, also gave testimony which concluded that there was a defect in the ball joint assembly and that the defect could cause the vehicle to dart or sway. His examination of the ball joint assembly indicated that the hole in the lower ball joint was egg shaped, instead of circular, with the long dimension running traverse to the truck. It was his opinion that the elongation of the hole was not caused by the accident, but pre-dated it.

Dr. Oscar W. Albritton, a Professor of Engineering at Louisiana State University, was qualified before the court as an expert in the fields of metallurgy and mechanical engineering. A complete disassembly of the ball joint assembly was performed under court order in September, 1974, by the defendants’ metallurgist, Robert Anderson, in Houston. Dr. Albritton participated in the disassembly process and made a detailed metallurgical examination of each component of the assembly. The first discovery made was that the ball stud in the lower left ball joint was bent, which observation could be made with the naked eye once the stud was removed from its housing. Secondly, it was noted that the tapered hole in which the stud fit was “wallowed out”. The parts were then taken to Dr. Albritton’s laboratory at L.S.U. for comparison with a new assembly furnished to him for purposes of the study. Measurements were made to make a comparison of the shape and size of the wallowed hole to determine exactly where it was out of round and how much. The results showed mathematically what Dr. Albritton had seen in his examination in Houston. The conclusion reached by Dr. Albritton was that the ball joint stud had been bent when installed in the assembly. His opinion was based on the following: There were no damage marks to any part of the stud nor to the housing cover. By orienting the bent stud to the out of roundness of the hole, it was noted that the hole was not in line with the direction of the forces of the accident. This tended to show that the forces of the accident had not caused the bend. Further, the bend in the stud was within the housing, not to a portion of the stud outside the housing. Under microscopic examination, the metallurgical examination of the bent stud and hole revealed a wear pattern on the stud which was somewhat eccentric with respect to the hole. With a bent stud in the tapered hole, the hole was eventually wallowed out because of the uneven distribution of the load being placed on the ball joint by the operation of the vehicle.

The jury verdict was also supported by some of the testimony of the defendants’ experts. Sam Evans, a mechanic with Martin GMC Trucks, Inc., testified, when questioned about the effect of loose ball joints, that the vehicle would have a tendency to wander back and forth on the road.

The testimony elicited from Robert Anderson, defendants’ metallurgical expert, indicated that he had taken no measurements to indicate where the out of round condition existed. He was unable to correlate the out of roundness to the bend in the stud because he never made the measurements necessary for this determination. He was only able to testify as to his visual observations. During direct examination Anderson reassembled the lower 'ball joint in the socket to demonstrate that there was no looseness. On cross-examination Anderson was called upon to again reassemble the ball joint, this time to conform to his own measurements of the location of the various parts of the assembly taken prior to the original disassembly. This reassembly revealed looseness in the ball joint assembly, thereby throwing some doubt on his credibility.

Jack Kruesberger, another expert called by defendants, testified about an experiment he performed before trial for General Motors involving riding over Southwest Louisiana in a 1971 GMC truck that had the nut loosened on the ball joint stud. His direct testimony indicated no difficulty in controlling the vehicle. Cross-examination of this witness, however, revealed that his experiment was irrelevant because he was using an unbent ball stud and a perfectly round hole.

We conclude from the foregoing testimony that there was sufficient evidence in the record to support a conclusion that the lower left ball joint assembly was defective and unreasonably dangerous to normal use in its defective condition. Defendants contend, however, that even if the assembly was defective such defect could not cause the accident.

The record does not support this contention. In addition to the foregoing evidence indicating that the lower left ball joint assembly was defective prior to the accident and that the condition could cause the vehicle to dart, sway or wander back and forth on the road, the jury had before it the following evidence of the events leading up to the accident: Nolan Burle-son testified that he was driving his car towing a boat trailer and was passed by the plaintiff’s vehicle while proceeding south on Louisiana Highway 27. The passing maneuver took place shortly before the accident. He stated that his attention was directed to the plaintiff’s vehicle because he noticed smoke coming from the left front wheel. He estimated his speed at 45 miles per hour because he could not pull the boat trailer any faster than that. He estimated the plaintiff’s speed at 50 to 55 miles per hour. After passing the Burleson vehicle, plaintiff moved back into the right lane of the two-lane highway. Plaintiff’s vehicle had not gone far when Burleson saw it “dip” and veer to the right, with the right tires going off the road. When the car pulled back to the left it collided with the oncoming truck.

This eyewitness’ testimony was in accord with the plaintiff’s testimony. Plaintiff stated that he passed the Burleson vehicle just prior to the accident. He passed the vehicle and returned to the right lane. Just after returning to that lane, he said, the truck “jerked to the right and jerked me off the road.” He managed to regain control of the vehicle but the same thing happened again. He turned the wheel to right the vehicle again and attempted to brake it. The collision with the truck followed.

The evidence before the jury indicated that the lower left ball joint assembly was defective at the time of assembly. It further indicated that this defective condition could cause the vehicle to sway, dart or wander across the highway. The testimony of the plaintiff and an eyewitness indicated that this darting or wandering took place just prior to the accident. We conclude from this testimony that the defective condition of the ball joint assembly set in motion the chain of events which resulted in the accident and plaintiff’s injuries.

Our review of the record in this case indicates that the jury’s verdict had a reasonable factual basis. Finding no manifest error in the conclusions reached by the jury as to the existence of a defect in the lower left ball joint assembly and its causal relationship with the accident, we will not disturb their verdict on the issue of liability.

The next argument made by defendants is that the trial judge erred when, in his charge to the jury, he refused to charge them as to the presumption of negligence of a motorist who collides with another vehicle in the other vehicle’s lane of travel. We cannot agree that error was committed. We have reviewed the cases cited by the defendants which apply the presumption, as well as other cases not cited, and found that all involve suits to determine liability as between the drivers of the colliding vehicles. See, for example, Noland v. Liberty Mutual Insurance Company, 232 La. 569, 94 So.2d 671 (1957); Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957); Schick v. Jenevein, 145 La. 333, 82 So. 360 (1919); Johnson v. McKay, 306 So.2d 417 (La.App. 3rd Cir. 1975). The present action involves not the question of liability as between the colliding motorists but rather the question of liability of the manufacturer of one of those vehicles to the driver of that vehicle based on the manufacture of a defective product. We do not think that the presumption applies in the present case. If it were applied, a far greater burden of proof would be placed on the plaintiff whose vehicle, as in this case, veered to the left and into the oncoming lane of travel than on the plaintiff whose vehicle veered to the right and off the highway. The trial judge was correct in refusing to charge the jury as requested by defendants.

The next issue with which we must deal involves the damage award. The jury returned a verdict awarding plaintiff $867,000. A remittitur of $400,000 was agreed upon and the judgment reformed accordingly. Defendants argue on appeal that, even after the remittitur was entered, the award constitutes an abuse of the “much discretion” vested in the trier of facts and should be further reduced. Defendants further argue that under Miller v. Chicago Insurance Company et al, 320 So.2d 134 (La.1975), we are permitted to review only the award as it stands following the entering of the remittitur. One of the issues presented in that case was whether, on appeal, an appellate court could review the jury award prior to the entering of an additur or remittitur to determine whether that original award was within the “much discretion” bounds imposed by LSA-C.C. article 1934. The Supreme Court held that only the final judgment of the court could be reviewed, not the judgment prior to the entering of the additur or remittitur. Otherwise, the trial judge’s power to grant a new trial in the absence of an acceptance of the additur or remittitur by the parties would be ignored.

Plaintiff argues that the Supreme Court’s holding in Miller is not applicable here because of the alleged error committed by the trial judge in the manner in which he set out to determine the remitti-tur. The basis for plaintiff’s contention of error is that the judge made his determination by using calculations on a scrap of paper found in the jury room which indicated to him that the award for loss of future earnings granted by the jury was arrived at by multiplying $17,000 by 34, the former figure representing plaintiff’s yearly income and the latter figure representing plaintiff’s life expectancy. The trial judge’s reasons for granting a new trial in the absence of the plaintiff accepting a re-mittitur do indicate that he found the scrap of paper mentioned by counsel for plaintiff. However, his reasons, which were transcribed into the record, indicate that the decision of the trial judge was based on a review of all the evidence presented at the trial and his determination that the award made by the jury was excessive in light of all the evidence. Any error on the part of the trial judge in noting the scrap of paper found in the jury room was harmless under the circumstances.

We will now review the evidence relative to quantum to determine if there was a clear abuse of the wide discretion vested in the trier of facts under LSA-C. C. article 1934. Fox v. State Farm Mutual Automobile Insurance Co., 288 So.2d 42 (La.1973).

Plaintiff was injured early on the morning of May 22, 1971. Following the accident he was taken to the hospital in Sul-phur, where he remained for 54 days. He was treated by Dr. Jerome Ambrister and Dr. John E. Wood while in the hospital. His primary injuries consisted of a laceration over the right eye, comminuted fracture of the wrist with the bone protruding from the left forearm, comminuted fracture of the upper tibia and fibula with the bone protruding from the proximal portion of the left leg, a massive fracture of the left hip involving the acetabulum and gross fractures involving six teeth.

Dr. Wood, a practicing dentist in Lake Charles, was called after the accident by Mrs. Gordon to see the plaintiff on an emergency basis. Dr. Wood examined the plaintiff and found a number of fractured teeth. In his deposition, Dr. Wood stated that “when I say fractured teeth I mean these teeth were grossly fractured and this was the type of thing that was causing him excruciating pain, I’m certain.” On examining the plaintiff, Dr. Wood stated that he found fractures of the mandibular right second bicuspid and second molar, which involved the entire cuspids of these teeth. The fractures were such that not only the enamel portion of the cusps was fractured but the fracture extended into the dentin, which was causing the excruciating pain. He also had fractures of the lower left first and second molars which resulted in a loss of the entire buckle cusps of both teeth. Also fractured were the maxillary left first and second molars. Dr. Wood had taken some temporary crowns with him when called by Mrs. Gordon, and he attempted to cover the exposed areas of the teeth with these crowns. He saw the plaintiff several days later when Mrs. Gordon called to tell him the plaintiff was still experiencing pain and that one of the crowns had come loose. He adjusted the crowns during this second visit in an effort to again cover the exposed portions of the injured teeth. He next saw the plaintiff at his office on November 9, 1971. At that time he examined the plaintiff’s mouth with X-ray equipment to determine the full extent of injuries to the plaintiff’s mouth. He later extracted two teeth, repaired four others, and installed bridge work.

Dr. Ambrister, a practicing orthopedic surgeon in Lake Charles, first saw the plaintiff in the emergency room of the West Calcasieu-Cameron Hospital following the accident. His initial examination of the plaintiff indicated a laceration over the right eye. There was also a bone protruding from the left forearm near the wrist. The plaintiff was complaining of pain in the area of the left hip, and attempts to move that area produced extreme pain. There was also a bone protruding from the proximal portion of the left leg. Dr. Ambrister described the injuries received by the plaintiff as painful. He treated the plaintiff on a regular basis from the date of the accident until July 12, 1973. When Dr. Ambrister last saw the plaintiff, his left lower extremity was functionless. The hip joint was immobile, the knee had limited motion and he had an equinus deformity of the left foot. Because of the injuries to his left lower extremity, the plaintiff was unable to ambulate without the assistance of crutches.

On July 27, 1973, plaintiff consulted Dr. Jesse H. Dickson, an orthopedic surgeon in Houston, who confirmed Dr. Ambrister’s diagnosis and also found an injury to one of the nerves in the plaintiff’s left ankle, which prevented him from walking on his heel. His examination indicated that the plaintiff had a perineal palsy, a complete foot drop. In other words, he was unable to make his left foot move to an angle such as that made when walking. In considering the alternatives with reference to treatment of the hip injury, Dr. Dickson ruled out hip fusion because of the added stress this would place on the knee and ankle. A cup orthoplasty, which involves the making of an artificial joint by sliding a very fine piece of metal between the two bones of the joint, was ruled out for the same reason. Total hip replacement was the remaining available procedure. But even this procedure involved problems because this operation usually is not performed on persons under the age of 60, and because there was potential for the inserted ball and socket to fail, thus requiring the plaintiff to go back to his crutches. Dr. Dickson performed surgery on the plaintiff on August 10, 1973. This involved the lengthening of the heel cord and ligaments behind the ankle. On November 9, a four hour surgical procedure was undertaken to replace the injured hip. Dr. Dickson described this surgery as “exceedingly difficult” because of the severity of the hip injury and because as part of the healing process an extra amount of bone had formed in the area due to ectopic calcification. Plaintiff remained in the hospital for seventeen days following this surgery. Problems developed later. In early January, X-ray examination revealed that the ball had come out of the socket. Plaintiff was again hospitalized with a pin being placed in the lower part of his thigh bone, with 35-40 pounds of traction on this pin for a period of ten days. The ball and socket responded very little and remained out of socket. Other surgical options were considered but discounted because of the likelihood of failure due to an increase in ectopic calcification. As of the date of trial plaintiff was still in the same condition, and Dr. Dickson was of the opinion that the condition had “diminished 80% of the normal function of that extremity.” In addition to the present problem, Dr. Dickson indicated that other problems could develop in the future. Medical studies indicate that in two or three years patients with similar problems develop a low grade infection resulting in pain and stiffening of the hip.

Dr. Dickson’s prognosis in connection with the plaintiff’s future employment prospects as a welder was not encouraging. When the plaintiff first went to Dr. Dickson he informed the doctor that he had attempted to go back to work as a welder, not standing up welding, but sitting down. He had found, however, that his hip pained him too much to sit for the long periods of time required for the work. After the hip replacement operation in November of 1973, the pain subsided, but the plaintiff was informed that he would not be able to do offshore welding again because of the strenuous nature of the work. After the ball came back out of the socket the plaintiff’s hip reverted to its preoperation condition. Dr. Dickson concluded that the plaintiff’s left leg would continue to tire easily, and he would need the assistance of crutches or a cane to move about. Any work he performed would have to be geared toward sitting and not walking and standing.

In addition to the above evidence relating to the pain and suffering of the plaintiff in connection with this accident, the other evidence of losses incurred by him in connection with the accident is as follows: A stipulation was entered in the record that the employer’s compensation insurer, State Automobile and Casualty Underwriters, had paid $14,143.30 in medical expenses as of the date of trial. In addition, plaintiff paid $1,494.00 in travel expenses in connection with his medical treatment. Based on these figures, plaintiff argued that a minimal estimate of future medical expenses should be $10,000. The record further indicated that the average annual salary of the plaintiff during the four years preceding the accident was $13,153.-36. Taking all of these figures, and noting with reference to the determination of loss of future earnings the Supreme Court’s decision in McFarland v. Illinois Central Railroad Co., 241 La. 15, 127 So.2d 183 (1961), which rejected the application of a mathematical formula for determining loss of future earnings, we feel that the award of $467,000 in this case was clearly within the wide discretion vested in the trier of fact under LSA-C.C. article 1934. Finding no abuse of discretion with respect to the amount awarded to plaintiff, we affirm the judgment.

Plaintiff has appealed, arguing that the trial judge erred in refusing to award him attorney’s fees. The basis for plaintiff’s claim is LSA-C.C. article 2545, which provides as follows:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

Plaintiff argues that in recent years the courts of this state have interpreted this article to apply not only as between the buyer and his immediate seller, i. e., the retailer, but also as between the buyer and the manufacturer of the product, thus eliminating as a prerequisite to recovery privity between the buyer and seller. Plaintiff cites numerous cases to support his contention that attorney’s fees are due in this case, including Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972), Rey v. Cucia, 298 So.2d 840 (La. 1974), Smith v. Max Thieme Chevrolet Co., Inc. et al, 315 So.2d 82 (La.App. 2nd Cir. 1975), Dunlap v. Chrysler Motor Corp. et al, 299 So.2d 495 (La.App. 4th Cir. 1974), Fox v. American Steel Building Co., Inc., 299 So.2d 364 (La.App. 3rd Cir. 1974), Baughman v. Quality Mobile Homes, Inc., 289 So.2d 376 (La.App. 1st Cir. 1973), Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (La.App. 1st Cir. 1973) and Ford v. Broussard, 248 So.2d 629 (La.App. 3rd Cir. 1971).

Our review «of these cases indicates that each was an action in redhibition, not a products liability case. Plaintiff herein seeks only damages incurred as a result of injuries caused by operation of a defective product manufactured by General Motors. He does not seek rescission of the sale nor reduction in price. Therefore, we are of the opinion that LSA-C.C. article 2545 is inapplicable to this case, and that the trial judge properly denied attorney’s fees.

For the reasons assigned the judgment of the trial court is affirmed at defendants-appellants’ costs.

Affirmed.


text:
    Edward J. WALSH, Individually and as Administrator of the Estate of his minor son, Michael T. Walsh v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 7038.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Emile L. Turner, Jr., New Orleans, and Malcolm B. Robinson, Jr., Metairie, for plaintiff-appellant.
    A. R. Christovich, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and MORIAL, JJ.
   SAMUEL, Judge.

Edward J. Walsh instituted this suit, individually and as administrator of the estate of his minor son, Michael T. Walsh, against New Orleans Public Service, Inc. to recover the cost of medical expenses for himself and damages for personal injuries sustained by the boy as a result of an alleged bus accident. Defendant answered in the form of a general denial, alternatively pleading contributory negligence. Following trial on the merits, judgment was rendered dismissing plaintiff’s suit. Plaintiff has appealed.

The accident occurred on January 24, 1969 shortly after 3:15 p. m. at the corner o,f Tchoupitoulas Street and Henry Clay Avenue in the City of New Orleans. Testimony relative to the occurrence of the accident was given by the minor son (15 years old at the time of the accident) ; Edwin J. Cramer, a witness who testified on behalf of the plaintiff; and Joseph Lupo, driver of defendant bus.

Michael testified: On his way home from high school, he boarded the Tchoupi-toulas bus at Annunciation Street and Jackson Avenue. After the bus passed Webster Street, a two-block interval before his stop on Henry Clay Avenue, he walked to the front of the bus, stepped down to the first step, and placed his left hand on the middle railing. He was carrying school books in his right hand. The bus was traveling about 25 to 35 miles per hour and slowed to 20 miles per hour when the door opened one-quarter to one-third of the distance before the bus stop. As the bus approached the corner of Henry Clay, it made a lurching or jerking motion throwing him off balance. The bus never came to a full stop. Michael went through the open door. He maintained his balance for a short time on the bottom step, but continued to be thrown through the door. After he went through the door he tripped, rolled over on his side and landed on his back in the street. He saw the bus driver looking at him as the bus continued on its way down Tchoupitoulas Street. Michael got up, walked across the street, spoke to three boys seated cater-corner on Henry Clay who had witnessed the accident, and then walked one-half block to his home. After he arrived home his mother sent him to the bus turnaround at Audubon Park and Tchoupitoulas Street, where he got the number from the rear of the bus and then told the driver what had happened. According to Michael, the driver had no recollection of the accident but gave Michael his name and driver number and asked the boy for his name and address.

Edwin J. Cramer testified: At the time the bus approached' the intersection of Henry Clay and Tchoupitoulas, he and another friend were on the opposite or river side of Henry Clay and Tchoupitoulas. They saw the bus traveling about five to ten miles per hour when it suddenly pulled over and the door opened' about ten feet from the corner. The bus slowed down but never came to a complete stop and Michael Walsh either slipped or fell out of the bus and the bus pulled off. Walsh fell awkwardly in a continuing motion landing on his arm and his back. The boys went over and helped him up and cleaned him off. Michael was bruised and his shirt and sweater were torn.

Joseph Lupo, the bus driver, testified: Michael and he were the only occupants on the bus at the time of the alleged accident. Young Michael rang the buzzer and the driver brought the bus to a slow stop at the corner of Tchoupitoulas and Henry Clay. When he opened the door, the boy rushed out and when he got to the last step he fell on his knees. Lupo got out of the bus and asked the boy if he was hurt or needed any help. The boy said no. Lupo got his name at that time. The driver was of the opinion the boy was in a hurry and lost his balance when he got to the last step. The next stop after Henry Clay was the Audubon Park stop at the end of the line. He had a five-, six-, or seven-minute layover at the end of the line-and saw young Michael as he was returning on the next trip at Tchoupitoulas Street and Nashville Avenue playing with two other children at the corner. He denied the boy ever came to the bus stop at the end of the line after the accident or spoke to him there.

The two versions of the accident are irreconcilable and the resolution of which is correct and which incorrect is solely a matter of credibility. A trial judge’s finding of fact based on the credibility of witnesses is reversible only for manifest error and we find no such error here. Under the facts established by the testimony of the defendant’s driver, which testimony was accepted by the trial judge, we find no negligence on defendant’s part.

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

Affirmed.

      . Adams v. Concerts West, Insurance Company of North America and New Orleans Municipal Auditorium, La.App., 323 So.2d 493 handed down this day; Pailet v. Guillory, La.App., 315 So.2d 893; Conques v. Coleman, La.App., 315 So.2d 805; Smith v. Ranger Insurance Company, La.App., 301 So.2d 673; Cyrus v. Saragusa, La.App., 301 So.2d 427; Joseph v. Miranda, La.App., 301 So.2d 391; see also 2B La.Dig., Appeal and Error, &wkey;10O8.1(7).


author: REDMANN, Judge.

text:
    Adam LANDRY v. Mrs. Eva Lois LANDRY, his wife.
    No. 7093.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Daniel E. Becnel, Jr., Robert R. Fauch-eux, Jr., Reserve, for plaintiff-appellant.
    Charles S. Becnel, Becnel & Kliebert, Va-cherie, for defendant-appellee.
    Before SAMUEL, REDMANN and GU-LOTTA, JJ.
   REDMANN, Judge.

A father appeals from a judgment condemning him to pay $350 monthly alimony for his five children. He had sought to pay only $225.

There is no transcript of testimony, nor, as provided by C.C.P. 2131, narrative of facts by counsel nor motion by counsel for narrative by the trial judge. We are therefore unable to decide the correctness of the judgment. See So-Cam, Inc. v. Atkins, La. App.1966, 189 So.2d 742, writ refused, 249 La. 765, 191 So.2d 142.

The appeal is dismissed.


author: SAMUEL, Judge. BEER, Judge

text:
    Raymond RICHARDSON v. Louis A. HEYD, Jr., Criminal Sheriff in and for the Parish of Orleans, State of Louisiana.
    No. 6997.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.

      Frank S. Bruno, New Orleans, for plaintiff-appellant.
    Leroy Hartley, Kenneth M. Wright, New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and BEER, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against the Criminal Sheriff for the Parish of Orleans for damages resulting from personal injuries suffered by him when attacked by a prisoner who escaped from his custody when returning from Charity Hospital. Defendant-answered, essentially denying the allegations of plaintiff’s petition and alternatively pleading contributory negligence. After trial on the merits, there was judgment in favor of defendant, dismissing plaintiff’s suit. Plaintiff has appealed.

Plaintiff was employed as a deputy by the Criminal Sheriff for the Parish of Orleans. He was working in the medical department of the sheriff’s office. Among his duties was the transportation of sick and injured prisoners between parish prison and Charity Hospital, both in New Orleans. On September 16, 1969 plaintiff was assigned to take three prisoners to that hospital. He personally removed two of the prisoners and watched as they were searched by other deputies. The third prisoner, Tommy Hertz, was turned over to him at the main gate and plaintiff personally searched him. Plaintiff secured the three prisoners in the prison van used for transporting them, but he stated he was unable to handcuff Hertz because the latter had a brace on one hand. Plaintiff requested the captain of the watch to send another deputy with him, but the request was refused because of a shortage of deputies.

Plaintiff brought the three prisoners to the hospital without incident, and he watched continuously as each received treatment. While returning to the prison with the three men in the prison van, Hertz, who was seated behind plaintiff, seized him and placed a makeshift “ice pick” against his throat. Hertz then forced plaintiff to stop the vehicle and threw him into the street, causing plaintiff to suffer a cervical strain and a hernia.

Plaintiff argues numerous reasons why the defendant should be found guilty of negligence. Among these reasons are a violation of prison rule Article 21, requiring a deputy in the rear of a vehicle transporting prisoners, the lack of a safety screen between the prisoners and the vehicle’s driver, as well as vague arguments regarding improper training of deputies in searching prisoners. The negligence of the defendant, if any, need not be decided since we find plaintiff guilty of contributory negligence.

No testifying witness knew where Hertz obtained the weapon. The prison van was kept in an alley where it was accessible to inmates and non-prison painters. It is possible the weapon could have been placed in the van while it was so parked. The nature of the weapon and plaintiff’s constant observation of the three men during treatment render unlikely the possibility that Hertz obtained it at Charity Hospital. However, regardless of how the weapon came into the possession of Hertz, and in spite of his alleged inability to place handcuffs on Hertz’s injured hand, it is clear plaintiff was guilty of contributory negligence because he failed to use obvious and simple procedures to secure Hertz and the other prisoners in such a way as to prevent them from causing hini injury.

The record includes testimony showing the prison van had bench-type seats to which Hertz’s legs could have been shackled and his uninjured arm handcuffed. When asked why he did not use this procedure to secure the prisoners, plaintiff testified he did not think this manner of securing prisoners was available and he did not look to see if he could have used this technique.

In addition, the testimony of Deputy Robert Hartman, who also was assigned as a medical deputy to take prisoners to and from the hospital, is significant. Deputy Hartman testified a prisoner with an injured hand could be secured by shackling him to another prisoner and handcuffing his uninjured hand to another prisoner at the same time.

On the date of the incident plaintiff had been a deputy criminal sheriff for some three years, and previously had served on the New Orleans Police Department for two years. He had been assigned to the medical detail for approximately three months, and the vicious propensities of Hertz were well known to him and to the other deputies at the prison.

Plaintiff had full knowledge of the danger which Hertz presented, and he failed to take at least two obvious positive steps available to him, steps which our reading of the record satisfies us should have been known to him, to prevent Hertz from causing him injury. Under these circumstances, plaintiff’s actions or lack thereof in not properly securing Hertz in the prison vehicle were not those of a reasonable man under the circumstances and constitute contributory negligence which bars any recovery by him.

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

Affirmed.

BEER, J., concurs.

BEER, Judge

(concurring).

I concur in the result.

      . The boundaries for the Parish of Orleans and the City of New Orleans are coextensive so that city officials and parish officials have the same territorial jurisdiction for practical purposes.

      . See Pfister v. Phoenix of Hartford Insurance Company, La.App., 290 So.2d 362.


author: HUMPHRIES, Judge.

text:
    Carole MANN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al., Defendants-Appellees.
    No. 5231.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.

      Daniel J. McGee, Mamou, W. Glenn So-ileau, Ville Platte, Alfred Mansour, Alexandria, Donald Soileau, Mamou, for plaintiff-appellant.
    Tate & Tate by Donald J. Tate, Mamou, Christopher Zaunbrecher, Baton Rouge, for intervenor-appellee.
    Dubuisson, Brinkhaus, Guglielmo & Dauzat by Jimmy L. Dauzat, Opelousas, William J. Doran, Jr., Baton Rouge, Davidson, Meaux, Onebane & Donohoe by L. Lane Roy, Lafayette, for defendants-appel-lees.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HUMPHRIES, Judge.

Plaintiff appealed from an adverse judgment in her action against the State of Louisiana through the Department of Highways for injuries sustained in an accident caused by alleged hazardous conditions of the shoulder of the road. The plaintiff has abandoned all of her claims against all parties other than the Department of Highways, State of Louisiana.

We agree with the findings of the trial judge, his application of the law, affirm his decision and adopt his written reasons for judgment as the opinion of this court.

"REASONS FOR JUDGMENT”

“These suits were filed against the State Highway Department and one against Allstate Insurance Company, for damages resulting from an automobile accident which occurred on Louisiana Highway 10 in Evangeline Parish. The State Highway Department and Allstate denied liability and trial with cases consolidated was had on November 5, 1974.

The facts reveal that an automobile driven by one Chaney, in which plaintiff, Carol Mann, Roberta Belsome, and Louis Papil-lion were passengers, was proceeding in a westerly direction on La. 10, and that another station wagon driven by plaintiff Jack Karam, was proceeding in an easterly direction on Louisiana Highway 10. As the Chaney automobile entered a curve, it ran off of the hard surfaced portion of the highway onto the shoulder, at which time, as the driver attempted to pull back onto the highway, lost control and ran across the highway into the east bound lane where an accident occurred between the two vehicles, causing the death of Roberta Belsome, Louis Papillion, the driver Chaney, and serious personal injuries to Carol Mann and to Jack Karam.

The evidence further reveals that renovation of this highway was completed in 1967, and that it is a hot-mix type, two lane, blacktop highway, and that at the place of the accident, it is twenty feet wide, and that at the time of the accident the traffic signs warning of a curve ahead were in place.

The testimony shows that there was a so-called “rut” on the side of the highway where the Chaney vehicle ran off the road. However, the testimony, and the photographs filed in evidence show that the depth of this rut varies from two to six inches below the top of the hard surfaced portion of the highway. The evidence further shows that the shoulder at that point is graveled. The evidence is not clear as to the length of the rut or ruts.

Foster Whittington, who was the Maintenance Superintendent for the Department of Highways, testified that he rides all highways of the Parish at least once a week. He further testified that ruts such as this one are constantly occurring, and that the highway is too narrow. He testified that this curve is not the only bad curve in that highway. Trooper Charlie Manuel testified that the rut took up the major portion of the sharpest point of the curve, and that the curve is sharp enough to require a slow down. He testified that the rut was about the width of an automobile tire. Trooper Manuel further testified that he did not know where the Chaney vehicle entered the rut, he does not know where the Chaney vehicle left the road, but there was a skidmark leaving the rut going to the point of impact approximately seventy-five feet away, and that the Chaney car was sliding sideways at the time.

As for the manner in which Chaney was driving his automobile at the time of the accident, the only testimony on that is that of plaintiff, Carol Mann, whose testimony shows that Chaney was driving in a grossly careless and reckless manner, and at a high rate of speed before and at the time that he entered the curve.

John P. Smith, Jr., who lives near the scene of the accident, testified that the rut had been there for approximately two months, and that he knows personally that there were frequent accidents at this particular curve. Several other witnesses testified that they had seen the rut there on and off.

There was no evidence introduced to show that the structure, design and/or engineering of this particular curve was such as to make it a dangerous curve per se. On the contrary, John Boagni, the Chief Construction and Maintenance Engineer for the State Department of Highways at the time of trial, who was previously Chief Engineer for the Highway District in which this highway is located, testified that there.was a traffic count of approximately 1100 vehicles using this highway daily on an average day, and that the Department had received no complaints about this curve. As a matter of fact, Mr. Boag-ni was the Project Engineer on Louisiana Highway 10 at the time when the project of reconstructing this highway was done in 1967.

The Court is sympathetic with the plaintiffs with regard to both those two who were severely injured and to the survivors of those who were killed as a result of the accident. However the Court cannot get around the recent case of Laborde v. La. Dept. of Highways, 300 So.2d 579, La. Court of Appeals, Third Circuit. If anything, the Laborde case was a stronger case for the plaintiffs than is the case at bar. Laborde apparently involved a situation where there was an erosion and a resulting hole in the traveled portion of the highway, and yet because there was sufficient room in plaintiff’s lane of traffic for plaintiff to pass without striking the hole, the Court denied plaintiff’s recovery. The pertinent language in the Laborde case is cited below.

“The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App. 3 Cir. 1963); Mistich v. Matthaei, 277 So.2d 239 (La.App. 4 Cir. 1973); St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964).”

I find no causal connection between the so-called highway defect of which the plaintiffs complained and the accident. The defect complained of is not that kind of a hazard which is patently or obviously dangerous to a reasonably careful and ordinarily prudent driver. The sole and proximate cause of the accident was the negligence of decedent Chaney, and for that reason the suits of the plaintiffs against the Department of Highways should be dismissed at their costs.”

The pictures filed in evidence reflect this area to be an ordinary curve that one would see while driving on any of the state’s bituminous roadways with the usual dirt and gravel shoulder with ruts and water in the ruts as one would ordinarily expect. During argument counsel for the plaintiff admitted that there was no direct proof in the evidence that the rut in anywise caused or contributed to this accident. He agreed that this court would have to assume or infer that the rut caused the accident. There is nothing in the record that permits us to make this assumption of this inference.

The plaintiff is cast for all costs of this appeal.

Affirmed.


text:
    Louis PAPILLION et ux., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al., Defendants-Appellees.
    No. 5232.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Donald Soileau, Mamou, for plaintiffs-appellants.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, William J. Dor-an, Jr., Baton Rouge, for defendants-appel-lees.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HUMPHRIES, Judge.

This is a companion case to Mann v. State Farm Mutual Insurance Company et al., La.App., 323 So.2d 509 in which a separate judgment is being rendered by us this date. The plaintiffs are the parents of a guest passenger in the automobile that ran onto the right shoulder, cut back and crossed into the opposite lane of travel and struck an oncoming vehicle.

For the reasons assigned in the companion case the judgment in favor of the Department of Highways and against the plaintiffs is affirmed.

The appellants are assessed for all costs of this appeal.

Affirmed.


text:
    Jack KARAM, Plaintiff-Appellant, v. LOUISIANA DEPARTMENT OF HIGHWAYS, Defendant-Appellee.
    No. 5233.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Alfred Mansour, Mansour, Davis & Ar-mitage, Alexandria, for plaintiff-appellant.

      William J. Doran, Jr., Baton Rouge, for defendant-appellee.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HUMPHRIES, Judge.

This is a companion case to Mann v. State Farm Mutual Automobile Insurance Co. et al., La.App., 323 So.2d 509 in which a separate judgment is being rendered by us this date. The plaintiff is the driver of the station wagon that was struck by a vehicle that ran onto the right shoulder of the road, cut back and crossed into the opposite lane of travel.

For the reasons assigned in the companion case the judgment in favor of the Department of Highways and against the plaintiff is affirmed.

The appellant is assessed for all costs of this appeal.

Affirmed.


author: BEER, Judge.

text:
    Dominick Philip GENNARO v. Mrs. Janet Louise Gouner, wife of Dominick Philip GENNARO.
    No. 7119.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.

      Dennis M. Ferrara, New Orleans, for plaintiff-appellant.
    Reed, Reed, & D’Antonio, Floyd J. Reed, Metairie, for defendant-appellee.
    Before LEMMON, BOUTALL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Dominick Philip Gennaro, seeks reversal of the trial court’s rejection of his motion seeking reduction in child support payments and granting, to the extent of $20 per week, Mrs. Gennaro’s motion to increase same.

Dominick Gennaro is a butcher whose net earnings average approximately $180 per week. This is a slight increase over his income at the time judgment was rendered on the previous rule which was appealed to this court; but he now supports his new wife and their three children, legitimated by his recent marriage. Judgment on the previous rule had resulted in an increase from $35 to $45 for child support. But, on the appeal from that order, this court reversed. See: Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir. 1975). Thus, as a practical matter, we are now dealing with the seeking of an increase from that $35 per week award.

Defendant-appellee is also remarried. Her oldest of the three Gennaro children, Melinda (age thirteen), is retarded. She now requires temporary institutional care at a cost of $18 per week. In addition to caring for the children of the first marriage, Mrs. Gennaro now cares for a child of her new husband from his previous marriage.

Prior to this rule, the weekly support payments of $45 (now reduced to $35) were divided equally between the three Gennaro children. In reasons orally assigned after hearing this rule, the trial judge indicated that the $20 increase was a rounded figure reflecting the necessary cost of temporary institutional care for Melinda in the amount of $18 per week.

An award for the support of a child must be subject to modification if there is a serious change in the child’s needs. Since the party seeking the increase clearly has the burden of proving that the increase is warranted, the determination of whether this burden of proof has been met is properly within the discretion of the trial court, who must give consideration to the income of the mother, as well as that of the father. LSA-C.C. Article 227; Burks v. Burks, 293 So.2d 923 (La. App. 2nd Cir. 1974). The court must also consider the needs of the child in relation to the ability of those obligated to pay. Tjaden v. Tjaden, 294 So.2d 846 (La.App. 2nd Cir. 1974). This includes consideration of the fact that, as in this case, the father has remarried and incidental to this second marriage there are additional expenses for which he is responsible. Marcus v. Burnett, 282 So.2d 122 (La.1973). Finally, the change in the child’s needs must be clear. In Wingo v. Cook, 306 So.2d 370 (La.App. 3rd Cir. 1975) the wife had custody of the minor child who developed serious mental and emotional problems. Because of these problems it became necessary that the child be hospitalized and furnished psychiatric care. The wife sought an increase in weekly child support payments. The court stated:

“We have decided that the father’s obligation to support his child is not limited to the amount of support he was ordered to pay by the last judicial decree. We hold that the father may be ordered to pay extraordinary medical expenses incurred for treatment of the child in addition to the support payments which he previously was ordered to make.”

In discussing the previous judgment rule upon which the wife sought an increase in the support payments, the court stated:

“The judgment rendered at that time does not contemplate the unusual and extraordinary expenses incurred on account of an accident or severe, unforeseen or protracted illness of the child. The extraordinary expenses incurred under those circumstances were not within the contemplation of either the mother or the father or of the court at the time the earlier judgment ordering support was rendered. The law imposes upon the parents the obligation of supporting and maintaining the child, and we think equity demands that either or both of the parents be required to pay or to contribute according to their means to those extraordinary expenses which were not foreseen at the time the earlier judgment of support was rendered. The obligation of the father to pay or contribute to those extraordinary expenses should not be limited to the amount of support he previously was ordered to pay.” (Emphasis ours.)

Taking all of the circumstances into account, we cannot conscientiously say that there have been drastic overall changes in the ability of either of Melinda’s parents to pay for this necessary care. But there are now serious changes in Melinda’s needs which were not previously apparent. In view of this, we do not find that the trial court abused its discretion in granting the increase although we believe that it should have been limited to the actual amount of the institutional care which is $18 per week.

Accordingly, taking into account our ruling in Gennaro, supra and the conclusions noted above, the judgment of the Civil District Court for the Parish of Orleans dated July 15, 1974 is amended as follows:

It is ordered, adjudged and decreed that Dominick Philip Gennaro, plaintiff-appellant herein, shall continue to pay the sum of $5 per week to be applied against past due alimony commencing July 9, 1974;

It is further ordered, adjudged and decreed that the rule to increase child support be and it is hereby made absolute and accordingly, the child support payments heretofore fixed in the sum of $45 per week and thereafter reduced to $35 per week are now hereby increased in the amount of $18 per week to a total of $53 per week payable on Tuesday of each and every week.

The judgment, as amended, is affirmed. The amendment is effective as of the date this judgment is rendered.

Amended and affirmed.

      . This is the most recently filed rule in this matter. Previously this court took action with respect to an earlier rule which will be discussed in the body of this opinion.

      . The general rule announced in Pettitt v. Pettitt, 261 So.2d 687 (La.App.2nd Cir. 1972) deals with “any change in the needs of the child” even including “increased advantages.” The need here is clearly more compelling than the needs which Pettitt, supra, recognizes as a proper basis for a change in support payments.


author: STOULIG, Judge. SCHOTT, Judge

text:
    B & G CRANE SERVICE, INC., d/b/a Sun Erection Company v. Ray LAMASTUS et al.
    No. 7128.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.

      Windhorst, Heisler, de Laup, Wysocki & Klein, Henry L. Klein, New Orleans, for plaintiff-appellee.
    Cabral, Daniel & Merlino, Harry R. Cabral, Jr., Metairie, for defendants-appellants.
    Before STOULIG, SCHOTT and MORIAL, JJ.
   STOULIG, Judge.

Plaintiff, B & G Crane Service, Inc., doing business as Sun Erection Company, was awarded an $869 judgment against defendant,- Lamastus & Associates, Inc., representing the balance due for remedial iron and steel work. Defendant contends we should reverse because the trial judge admitted parol evidence to alter and contradict the terms of a written contract contrary to the provisions of C.C. art. 2276, which provides:

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

Defendant, as general contractor of the Star Chrysler building, entered into a written agreement to subcontract to plaintiff the erection of the structural steel. The extent of the work plaintiff was obliged to perform was set forth in Section 5. We quote:

“SECTION 5 — STRUCTURAL STEEL —COMPLETE NO EXCEPTIONS AS APPLICABLE TO STRUCTURAL STEEL ERECTION. This subcontract agreement includes specifically the unloading, erecting, aligning, plumbing and welding of the structural steel for the new service building, the two steel stairs and the railing on the roof of the new service building.
Sun Erection Co., Inc. is to receive all materials F.O.B. Truck Delivery Job Site, tentative delivery May 24, 1971. All grouting, field painting and testing is excluded except cost of retesting due to original work not meeting specifications and cost of certification of welders. This subcontract agreement does not include the furnishing of any material that forms a permanent part of this job other than welding rods.”

The contract also provided:

“(b) This subcontract contains the entire agreement between the parties and all additions thereto or changes therein shall be in writing and shall not be binding unless same are in writing.”

The steel furnished plaintiff by the defendant was ordered from Howell Steel in Jackson, Mississippi. Most of it was defective on arrival and required aligning, straightening and welding to conform to the contract specifications.

Arleigh Hays, plaintiff’s estimator, explained that the original contract did not contemplate remedial work of the material furnished. While he was aware the contract recited written authorization for “additions,” he did the remedial work at the verbal request of James Wishardt, defendant’s superintendent on the job. He explained the general contract was virtually completed and rather than delay the project waiting for written approval and consultation with the steel supplier, he “took the man [Wishardt] at his word” and agreed to undertake the straightening on verbal authorization.

At the time of the trial, Wishardt was no longer employed by defendant; he was working for a firm in Slidell, Louisiana, and was not available to appear. Defendant’s president, Ray Lamastus, testified he instructed Wishardt and Huey Breaux, his office engineer, to authorize no extra work verbally, and specifically in the case of the defective railing, to hold up the job until the matter was settled with the fabricator.

Lamastus acknowledged that he at no time communicated these thoughts directly to plaintiff’s representatives, and his testimony is somewhat vague as to how often he was on the job site while the remedial work was underway. The trial judge found these facts which we quote from his written reasons for judgment:

“The evidence is quite clear. Plaintiff had nothing to do with supplying the handrails; its job was simply to erect them. As delivered, the rails were defective and had to be remedied before they could be used. The remedial work was done by the plaintiff. The job superintendent and project engineer for the general contractor knew an extra was to be incurred; they saw the work being done and authorized it, if not specifically, then certainly tacitly. Neither the superintendent nor the engineer stopped the work or instructed the plaintiffs not to proceed with the extra work until written authorization for it was given.”

We do not view the Sun remedial work as an addition to or a change in the original contract, because the written agreement is restricted solely to the erection of fabricated steel to be furnished by the general contractor. As we view it, Wishardt’s request that plaintiff remedy the defective material was beyond the scope of the subcontract and constituted a separate verbal contract which was proved by the uncontradicted testimony of plaintiff’s representatives.

At the time the original agreement was signed both plaintiff and defendant were assuming the material would be supplied to the job in a usable condition. When it arrived in a defective state as the contract neared completion, a situation presented itself that had not been foreseen at the time the written agreement was signed. Had defendant engaged another local subcontractor to remedy» the defects rather than returning it to the fabricator, there would be no question that it entered into a separate agreement for the performance of this job. The fact that plaintiff had the steel-erecting subcontract prior to undertaking the remedial work — the responsibility of the supplier — would not then change the character of the new service from a separate contract to an addendum on the original. We therefore think the trial court properly admitted parol evidence and plaintiff proved defendant’s indebtedness by a preponderance of the evidence.

For the reasons assigned, the judgment appealed from is affirmed, costs to be borne by the appellant.

Affirmed.

SCHOTT, J., concurs with written reasons.

SCHOTT, Judge

(concurring).

The language of the contract between the parties prescribed that “all additions” to the contract work “shall be in writing and shall not be binding unless same are in writing.” In my opinion the work of aligning, straightening and welding the steel performed by plaintiff was clearly an addition to the work contracted for. For that reason I would hold that plaintiff is not entitled to recover except for the principles found in McGowan-Rigsby Sup., Inc. v. Charles Carter & Co., Inc., 268 So.2d 716 (La.App. 1st Cir. 1972) and Roff v. Southern Construction Corporation, 163 So.2d 112 (La.App. 3rd Cir. 1964). In the latter case the Court recognized the general rule that in a situation such as the instant case where the contract provides for no claims for extra work unless there is a written order the provision is enforceable subject to certain exceptions.

“However, recovery for extras based on parol evidence has been permitted in spite of a stipulation that authority for extra work must be in writing: (1) when the alteration was necessary and had not been foreseen ... (2) when the alteration was so great that it cannot be supposed to have been made without the knowledge of the owner . (3) when the owner was aware of the extra work and made no objection to it . . .”

The evidence shows that the defects in the handrails were unforeseen and an alteration was necessary before they could be installed. Furthermore, the trial judge found that defendant “saw the work being done and authorized it, if not specifically, then certainly tacitly.” These elements fit the exceptions discussed in the Roff case and I would allow recovery on that basis.

      . Ray Lamastus, president of Lamastus & Associates, Inc., was cited individually as a defendant. An exception of no cause of action was properly maintained. Chrysler Realty Corporation was cited as a defendant because it owned the building into which the iron and steel were incorporated; however it was never served with a copy of the petition. The suit against it was severed.

      . The pipes warped when subjected to the hot dip process of galvanizing. They were guard rails which were to slip into sleeves embedded in concrete. In order to align the bent pipes with the sleeves it was necessary to heat and straighten them.

      . The subcontract involved erection of fabricated steel, whereas the remedial work is to overcome a deficit in the processing by the supplier in its fabrication.


author: MORIAL, Judge.

text:
    MID-CONTINENT UNDERWRITERS, INC. and Surplus Underwriters, Inc. v. H. A. RODRIGUE et al.
    No. 7129.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.

      Donald V. Organ, New Orleans, Abraham Gerber, Metairie, for plaintiffs-appel-lees.
    Hammett, Leake, Hammett, Hayne & Hulse, Michael E. Wanek, New Orleans, for defendants-appellants.
    Drury, Lozes & Curry, Robert H. Wood, Jr., New Orleans, for defendant in recon-vention.
    Before STOULIG, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

This is an appeal from a district court judgment ordering defendants to pay plaintiffs the balance of premiums on two excess coverage maritime insurance policies.

On or about December 7, 1970 Griffin and Zimmer Contracting Company, Inc. (Griffin and Zimmer) through its agent, H. A. Rodrigue, Inc., entered an order for excess maritime coverage with placing broker, Mid-Continent Underwriter, Inc. (Mid-Continent).

The total excess maritime coverage- requested was $75,000.00 for each person and $275,000.00 for each accident for the period from January 13, 1971 to January 13, 1972. Mid-Continent secured two policies to meet the request. One policy from Old Reliable Fire Insurance Company stated a premium of “$7.50 per $100 of entire payroll.” The other, issued by Employers’ Surplus Lines Insurance Company quoted a premium rate of “$3.00 per $100 of total payroll.”

Both policies were mailed to H. A. Rodrigue, Inc., and no written objections were made concerning any policy provisions. Thereafter, Griffin and Zimmer, through its agent, H. A. Rodrigue, Inc., paid a provisional premium of $6,000.00 on one policy and $2,500.00 on the other. The agent’s commission was deducted from the payment and the Remainder was remitted to Mid-Continent.

At the end of the policy period, Griffin and Zimmer’s total payroll was computed and, after certain deductions was found to be $132,184.12. Adjustments on the provisional premiums were made in accordance with policy provisions and Griffin and Zimmer was billed an additional total of $5,379.80 ($3,913.80 plus $1,466.00) for the two policies.

Griffin and Zimmer refused to pay the additional premiums and this suit was instituted against H. A. Rodrigue (Rod-rigue), H. A. Rodrigue, Inc., Employers Insurance Agency of Louisiana, Inc. a/k/a The Rodrigue Company, Inc., and Griffin and Zimmer. An exception of no cause of action was filed on behalf of H. A. Rod-rigue, H. A. Rodrigue, Inc., Employers Insurance Agency of Louisiana, Inc., a/k/a The Rodrigue Company, Inc. A hearing on this exception was continued indefinitely by the trial court. Thereafter, answers were filed by all named defendants except Rodrigue, and H. A. Rod-rigue, Inc.

Surplus Underwriters, Inc., as the underwriting agent for Old Reliable Fire Insurance Company was authorized to collect the premiums due on its policy. Mid-Continent after having paid Employers’ Surplus Lines Insurance Company the premium due under its policy, was given an assignment to collect that sum from defendants.

Defendant Griffin and Zimmer, in addition to its answer, filed a reconven-tional demand alleging that the endorsement placed on the policy of Surplus Underwriters, Inc., effectively provided no coverage due to its exclusion of “. masters and members of the crew of any vessels which are owned or chartered by the insured.” It demanded the return of the provisional deposit. Although Rod-rigue had no recollection of the transaction, evidence at the trial conclusively established that a separate policy covering this excluded risk was placed through Mid-Continent and that the said policy became effective and covered the same period as the other two policies. Accordingly, the reconventional demand of Griffin and Zimmer, being without substance, was rightfully dismissed by the trial court. We shall devote no further consideration to this issue.

The trial judge, after considering the law and the evidence, rendered judgment jointly and insólido against all defendants. All defendants appeal and allege that the policies are ambiguous and should be reformed to reflect the true intention of the parties. Rodrigue specifically asserts on appeal that the trial court erred in holding his company liable for the obligations of his client. We reverse the judgment holding Rodrigue and H. A. Rodrigue, Inc., liable and affirm as to all other defendants.

Defendants assert that no additional premiums are owed. Rodrigue alleges that when he negotiated the contracts with Mid-Continent he believed premiums would be based only on Griffin and Zimmer’s offshore or “wet” payroll and not on its “total” payroll. He stated that due to the fact this was an excess maritime policy he understood only maritime exposure was to be used in calculating the premiums. Rod-rigue further testified that when he received the insurance certificates he questioned why they specified “total” payroll but was assured that only the “wet” payroll would be used in calculation of premiums. It is to be noted though that no written objections concerning this discrepancy were made by Rodrigue, or anyone else, after the receipt of the certificates.

The language in the insurance certificates specifies either “total” or “entire” payroll with no mention of a “wet” payroll. A contract is supposedly the full integration of the will of the parties. As stated by the Third Circuit in Capizzo v. Traders and General Insurance Company, 191 So.2d 183, 187 (La.App. 3 Cir. 1966):

“ . . . when the provisions of a written contract are clear and unambiguous, the contract cannot be varied, explained or contradicted by parol evidence, and the meaning or intent of the contracting parties must be sought within the four corners of the instrument.”
There is no ambiguity whatsoever in the wording of the insurance certificates and accordingly parol evidence from Rod-rigue cannot be used to vary their clear terms. Premiums must be computed using the “total” payroll.

The judgment holding Rodrigue, H. A. Rodrigue, Inc., and The Rodrigue Company liable jointly and insólido with Griffin and Zimmer is partially erroneous. Evidence presented at the trial established that the placing broker, Mid-Continent, was paid directly by The Rodrigue Company, after it had deducted its commission from the premiums received from the insured. Mid-Continent had no independent dealings with the insured and all negotiations were conducted through the agency. There is also evidence of an agreement between the parties which specified that the producing agent would be held fully responsible for the collection and payment of all developed premiums. Upon this set of circumstances, the trial court was correct in holding The Rodrigue Company liable, for it was primarily responsible for the collection and payment of premiums. Rod-rigue and H. A. Rodrigue, Inc. though cannot be held liable. Neither Rodrigue nor H. A. Rodrigue, Inc., ever filed an answer to the plaintiffs’ petition and no default judgment was taken against them. They were never joined as parties to the suit and consequently cannot be cast in judgment.

For the aforestated reasons, the judgment of the trial court holding H. A. Rod-rigue and H. A. Rodrigue, Inc., liable is reversed. In all other respects, the judgment is affirmed and all costs are to be paid by remaining defendants.

Reversed in part, affirmed in part.

      . The total payroll was in fact $149,160.60. A representative of Mid-Continent testified that as a matter of custom in these type policies the “clerical office payroll” is not normally included in “total payroll” in order to give a “break” to the insured.

      . Defendants point out that in the endorsement on one of the policies the term “offshore payroll” is used. Plaintiffs claim this was purely a clerical error as evidenced by the fact that next to it was the figure of $132,184.12, the “total” payroll calculation. In any event, whatever the reason for the term’s use, defendants could not possibly have been misled or prejudiced by it for the endorsement was not received until well after the expiration of the policy period.


text:
    LOUISIANA LIVESTOCK SANITARY BOARD, Plaintiff-Appellee, v. Joseph A. PICKETT, Sr., Defendant-Appellant.
    No. 5207.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.

      Preston N. Aucoin, Ville Platte, for defendant-appellant.
    Joel B. Dickinson, Baton Rouge, for plainti f f-appellee.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HUMPHRIES, Judge.

This is an appeal from a judgment in favor of the Louisiana Livestock Sanitary Board and against the defendant-appellant, Joseph A. Pickett, Sr. ordering the latter to present and restrain his cattle for identification and testing as provided by R.S. 3:2221. We affirm.

The defendant consigned 19 head of cattle for sale at Guilbeau-Kennedy Stock Yards, Inc., Opelousas, Louisiana on June 19, 1974. All of the cattle were tested and one cow tested positive for brucellosis. This test was confirmed at the brucellosis testing laboratory in Baton Rouge, Louisiana. The defendant was sent a letter by certified mail on July 23, 1974 demanding that he present and restrain his cattle on September 3, 1974 in order that they could be tested for brucellosis. He refused the certified mail. The veterinarian and another employee of the department arrived at the defendant’s farm on the designated date and were informed by the defendant that he did not have his cattle penned and he was not ready to have them tested. Following this complete rejection of the law, the Livestock Sanitary Board, as was its legal duty, brought this action seeking the aid of the court in carrying out this mandate of the law.

The defendant-appellant contends that the plaintiff board failed to sustain the burden of proof. He contends that they did not prove that the brucellosis infected cow was over 8 months of age or that the defendant had a herd of cattle, or for that matter any cattle at all.

The particular provision of law at issue is R.S. 3:2221 which provides as follows:

“A. Any person owning or having charge of any male or female cattle over eight months of age in a herd which has shown evidence of brucellosis infection, or has intermingled with or otherwise been exposed to brucellosis infected animals, upon at least thirty days prior written notification by an authorized agent of the Livestock Sanitary Board shall present and restrain the cattle for identification and testing, and such infected herds shall be retested until these herds have become classified brucellosis negative as defined in Regulation 17 of the Livestock Sanitary Board. Cattle in open range country shall be worked at a time to correspond to the normal procedure for handling such cattle.”

The provision of law quoted above does not require that the infected cow be over 8 months of age. The law provides that a person having a cow over 8 months of age in a herd which has shown evidence of brucellosis infection or exposure is subject to the regime provided by the statute.

The second contention is equally untenable. The defendant resists the demands of the board on the grounds that it was not shown that he owned a herd of cattle. He contends that his resistance to the authority of the board and the law has successfully prevented the State of Louisiana from sustaining its burden of proof and therefore he has successfully thwarted the law and he should be exonerated by this court. He proudly points to his acts of resistance: the refusal of the certified letter; the failure to have the cattle penned; and the successful assertion, in the lower court, of the Fifth Amendment when called to the stand under cross-examination. There was sufficient evidence, adduced at the trial, that the defendant did have a herd of cattle. The veterinarian, who went to the defendant’s farm to test the cattle, testified that the defendant stated that he didn’t have his cattle penned as he was not ready for them to be tested. This is an admission on his part that he did have cattle. Since there is evidence in the record to support the finding of fact by the trial judge we must affirm. Additionally, if the defendant did not have any cattle it is more logical to assume, as perhaps did the trial judge, that the defendant would inform the authorities that he had no cattle rather than taking the course of employing an attorney and going through a trial and an appeal from that trial. If the defendant had no cattle it is hard to understand how he could successfully invoke the provisions of the Fifth Amendment.

We are constrained to pass upon the successful assertion of the provisions of the Fifth Amendment by the defendant when called under cross-examination. The procedure followed in the lower court is not the proper procedure to follow in invoking the Fifth Amendment. The defendant was called to the stand under cross-examination and after being asked if he were the defendant in the case and replying in the affirmative he was asked the following question, and answered, as quoted:

“Q. On June 19, 1974 did you sell to the Guilbeau-Kennedy Livestock barn certain cattle as listed on this list?
A. I refuse to testify on the grounds that it may tend to incriminate me. I invoke the Fifth Amendment of the United States in Article 1, Section 11 of the Louisiana Constitution of 1921.”

Following this the court called counsel to the bench and an off the record discussion ensued. The court then sustained the objection, although no objection had really been made — the defendant just invoked the Fifth Amendment. The proper procedure to follow, in civil cases, is to permit the witness to remain on the stand and be asked each question and invoke the privilege after each question and the judge rule as to whether that particular question is incriminating. McCormick Evidence HB., Chapter 13, Section 124, page 258.

(T)he accused in a criminal prosecution has a privilege not to be called or sworn as a witness at the State’s instance. His is a privilege to stay off the stand. The ordinary witness, that is, any witness except such an accused, has no such broad exemption. He must submit to be called and sworn by either party and to answer all questions except incriminating ones. The practical difference is substantial, since the ordinary witness has the burden, generally, of sifting out the incriminating questions and claiming privileges as to them — no easy task.

Not because it is an issue in the case, but because counsel has argued it, we pass upon the correctness of the ruling of the trial court in holding that plaintiff was not obligated to pay costs prior to the commencement of this action. The defendant filed a motion to dismiss because of the failure of the plaintiff to deposit advance costs with the Clerk of Court on the filing of these pleadings. The trial judge denied the motion and the defendant-appellant reurges its motion on appeal. We agree with the ruling of the trial judge. The law is found in R.S. 13:4521 and plainly provides that neither the State nor any of its boards or commissions shall be required to pay court costs in any judicial proceedings.

In accordance with the reasons herein-above expressed, it is

Ordered, adjudged and decreed that the appellant, Joseph A. Pickett, Sr. present and restrain his cattle for the purpose of brucellosis testing and identifying at 9:00 o’clock A.M. on the 35th day from the effective day of this judgment.

The appellant is cast for all costs in the lower court and for this appeal.

Affirmed.