author: .DOMENGEAUX, Judge.

text:
    J. T. JOYNER, Plaintiff-Appellee, v. HOUSTON GENERAL INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6859.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, Antoon, Dalrymple & Beck, Joseph T. Dalrymple, Alexandria, for defendants-appellants.
    Watson, Murchison, Crews & Arthur, R. Raymond Arthur, Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY, and CUTRER, JJ.
   .DOMENGEAUX, Judge.

This is a workmen’s compensation suit brought by plaintiff, J. T. Joyner, against two insurers, Houston General Insurance Company and Rockwood Insurance Company-

Joy ner was employed as a Game Warden by the Louisiana Department of Wildlife and Fisheries. On December 27, 1975, he suffered a heart attack while in the course and scope of his employment. He was in and out of the hospital several times following the heart attack and did not return to work for several months. On August 9, 1976, he filed suit against the then compensation insurer for his employer, Houston General Insurance Company, for compensation benefits. However, before the case proceeded to trial, Houston General paid the compensation benefits due, as well as certain medical expenses. Rather than dismissing the suit, plaintiff kept the matter in abeyance, awaiting further developments.

Plaintiff returned to work as a Game Warden in the fall of 1976. Compensation benefits were terminated by Houston General on October 17, 1976. Plaintiff continued to work until March 28, 1977, when, in the course and scope of his employment, he suffered a second heart attack. Plaintiff has not returned to work since the date of the second heart attack.

During the interval between the first heart attack on December 27, 1975, and the second heart attack on March 28, 1977, the compensation insurer for the employer changed from Houston General to Rock-wood Insurance Company.

On August 5, 1977, plaintiff filed an amending petition to the original one filed on August 9, 1976, adding Rockwood Insurance Company as an additional defendant. Defendant pleaded for compensation benefits against Houston General or, in the alternative, against Rockwood, as well as for penalties and attorney’s fees.

After a hearing, the trial judge found that plaintiff was permanently and totally disabled as a result of the heart attack occurring on March 28, 1977. Consequently, judgment was rendered against Rock-wood Insurance Company for $95.00 per week from March 28, 1977, for as long as plaintiff remained disabled. Rockwood was also found responsible for medical bills arising after March 28,1977, and it was cast for penalties and attorney’s fees. Additionally, the trial judge found that certain medical expenses incurred after the first heart attack, but before the second heart attack, were still unpaid. He cast Houston General for the cost of these expenses. All court costs, including expert witness fees, were assessed against Rockwood.

From this judgment, both Rockwood and Houston General have appealed. Plaintiff has answered the appeals, seeking an increase in the award of attorney’s fees.

Rockwood contends on appeal that the trial judge should have found plaintiff disabled from the date of the first heart attack, and that, therefore, Houston General should be liable for compensation benefits. In the alternative, it contends that both heart attacks contributed to plaintiff’s disability, and that, therefore, Houston General should be liable in solido with it for compensation benefits. Finally, Rockwood contends that the trial judge was in error in casting it for penalties and attorney’s fees.

Houston General argues on appeal that certain of the hospital bills which it was condemned to pay were unrelated to plaintiff’s first heart attack.

I. THE CAUSE OF PLAINTIFF’S DISABILITY.

At the outset, it is to be noted that neither insurer argues on appeal that plaintiff is not disabled at this time, nor do they deny that plaintiff is entitled to compensation benefits. The only question deals with whether Houston General or Rockwood, or both, should pay.

The law dealing with successive injuries in workmen’s compensation cases was summarized in Scott v. Hartford Accident & Indemnity Company, 302 So.2d 641 (La.App. 3rd Cir. 1974). In that case, we stated:

“If either accident was the sole cause of plaintiff’s disability, only one of the defendant-insurers would be liable for compensation benefits, payable on account of total disability. .
However, if plaintiff’s present disability is due to a combination of both incidents or by virtue of the second accident aggravating the prior injury, both the present compensation insurer and the insurer at the time of the first accident would be liable in solido for compensation benefits. . . .” [Citations omitted]

302 So.2d at pages 644 through 645.

Thus, in the instant case, the threshold issue is primarily one of fact to determine which accident was the disabling one.

The medica] evidence in this case consisted of the testimony of two physicians, Dr. A. E. McKeithen and Dr. Eleanor M. Wors-ley, who treated plaintiff after his first and second heart attacks, respectively.

With regard to plaintiff’s disability after the first heart attack, Doctor McKeithen testified that he recommended that plaintiff return to work after his first heart attack and that such a return was not dangerous as long as plaintiff was careful. The doctor explained that plaintiff was not to do any physical exertion, and he was to stay close to a radio in the event of an emergency. Although the doctor stated that, after the initial heart attack, plaintiff ran a greater risk of becoming ill again than one who had no previous problems, he thought that, considering both plaintiff’s physical and mental well-being, plaintiff should return to his work as a Game Warden.

We think it apparent that plaintiff was not totally disabled after he recovered from his first heart attack under the amended compensation act, specifically La. R.S. 23:1221. Plaintiff returned to the same position in which he was employed prior to the first heart attack. He earned the same or greater wages, and there was no evidence that he was working in substantial pain. Under these circumstances, it cannot be argued seriously that plaintiff was totally disabled at that time. Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3rd Cir. 1978), writ denied 358 So.2d 645 (La.1978); Phillips v. Dresser Engineering Company, 351 So.2d 304 (La. App. 3rd Cir. 1977), writ denied 353 So.2d 1048 (La.1978).

With regard to whether both heart attacks contributed to plaintiff’s disability, the deposition of Doctor Worsley, who treated plaintiff after his second heart attack, is significant. She testified that the initial electrocardiogram run after the second heart attack revealed that plaintiff had scars on the anterior, or front part, of the heart, which the doctor attributed to the 1975 infarction, and evidence of a very recent infarction on the posterior, or rear part, of the heart. Doctor Worsley stated that the two infarctions involved two different areas of the heart and that different vessels to the heart were involved in each. She also stated that the second heart attack did not aggravate the first one.

We think that, under the facts presented in this case, the trial judge was not manifestly erroneous or clearly wrong in determining that the two heart attacks were separate and that only the second one, and not the first one, or a combination of the two, was the cause of plaintiff’s disability.

Admittedly, the issue is a close one. Neither expert testified that, had it not been for the first heart attack, the second one would not have occurred. Conversely, neither testified that the second one occurred as a result of the first one. The medical issue was not that clear cut. In the absence of more specific medical evidence, we simply do not feel that the trial judge can be said to be manifestly erroneous or clearly wrong in his factual determination. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Since plaintiff’s disability in this case can be attributed to the second heart attack, Rockwood Insurance Company was properly cast with the burden of paying compensation benefits.

II. MEDICAL EXPENSES.

Houston General contends on appeal that the medical expenses for plaintiff’s hospitalization from February 15th to March 8th, 1976, and from April 2nd to April 8th, 1976, should not have been awarded because these visits were not connected to plaintiffs first heart attack on December 27, 1975.

Although the hospital charts for these two periods of hospitalization show the patient’s diagnosis as pneumonia, Doctor McKeithen, in his deposition, clearly related these visits back to plaintiff’s initial heart attack. He stated that the conditions necessitating these two periods of hospitalization were merely complications of plaintiff’s initial injury. Under these circumstances, Houston General was properly cast for payment of these medical expenses.

III. PENALTIES AND ATTORNEY’S FEES.

The trial judge found Rockwood liable for statutory penalties and attorney’s fees in. the amount of $2,500.00 for its failure to pay compensation benefits timely. Houston General was not cast for penalties and attorney’s fees.

Rockwood contends that there was a valid dispute as to which insurer was liable for compensation benefits, and that this dispute serves as reasonable justification for its denial of benefits.

A dispute between two insurers as to which one owes compensation benefits is not justifiable grounds for withholding these benefits. The battle is between the two insurers and should not be waged at the expense of the injured workmen. Humphreys v. Marquette Casualty Company, 235 La. 355, 103 So.2d 895 (1958); Carney v. Liberty Mutual Insurance Company, 277 So.2d 175 (La.App. 3rd Cir. 1973).

Plaintiff has answered the appeal, contending that the award of $2,500.00 for attorney’s fees should be increased, and that additional attorney’s fees should be awarded for the prosecution of this appeal. Considering the work involved in the trial of this case, we think the $2,500.00 awarded by the trial judge was within the bounds of his discretion. However, we conclude that the additional sum of $500.00 should be awarded for the services rendered on appeal. Bonnette v. Travelers Insurance Company, 367 So.2d 1261 (La.App. 3rd Cir. 1979); Trahan v. Rockwood Insurance Company, 284 So.2d 659 (La.App. 3rd Cir. 1973); Carney v. Liberty Mutual Insurance Company, supra.

For the above reasons, the judgment of the District Court is amended to increase the amount of attorney’s fees awarded in favor of plaintiff and against the defendant, Rockwood Insurance Company, from $2,500.00 to $3,000.00. In all other respects, the judgment is affirmed.

AFFIRMED AS AMENDED.

      . There was some evidence that plaintiff occasionally experienced chest pains after the first heart attack. However, Doctor McKeithen attributed these pains to indigestion, and it does not appear that they were continually severe.

      . This case is to be contrasted with the case of Scott v. Hartford Accident & Indemnity Co., supra. In the Scott case, a nursing home aide and laborer injured her back two times, with both injuries occurring in the course and scope of her employment. At the time of the first accident, Hartford Accident & Indemnity Company was the insurer; at the time of the second accident, Houston General was the insurer. The issue in the ensuing suit for compensation benefits was whether Hartford or Houston General, or both, were liable. The trial judge found that only the second accident caused plaintiff’s disability. On appeal, we reversed, finding that the medical evidence clearly indicated that the second accident was “an acute re-acceleration or aggravation of the pre-exist-ing condition.” In the instant case, the medical evidence does not indicate an acceleration or aggravation of a pre-existing condition.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    KLEINSCHMIDT, BRASSETTE & ASSOCIATES, INC., and Kleinschmidt & Associates, Inc., Plaintiffs-Appellees, v. Ms. Freddie AYRES, Defendant-Appellant.
    No. 6860.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Peter A. Ciambotti, Lake Charles, for defendant-appellant.
    Cox & Cox, James J. Cox, Lake Charles, for plaintiffs-appellees.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

This is a suit brought by the plaintiffs to recover fees under an oral contract for architectural services rendered the defendant in connection with a proposed construction of a residence. The defendant denies any indebtedness to the plaintiffs. From a judgment rendered in favor of Kleinsch-midt, Brassette & Associates, Inc., in the amount of $1,483.60 and in favor of Kleinschmidt & Associates, Inc., in the amount of $3,120.20, defendant appealed.

Two issues are presented for determination:

(1) In Louisiana, does an architect have an affirmative duty to inform and to give his client some idea of the final cost of a project early in their relationship or on an ongoing basis even though the architect and client have not specified and agreed on a cost limitation for building a structure?
(2) In this case did the defendant benefit from the work product of the plaintiffs to support recovery in quantum me-ruit?

The trial judge favored this court with an excellent written opinion, a portion of which we will quote and with which we agree. Accordingly, we take the liberty of quoting from his reasons:

“The arrangements between Ms. Ayres and Mr. Kleinschmidt for drawing the house plans commenced about the latter part of September, 1976, during a social engagement with friends. While their first conversation was casual and unbusi-nesslike, the defendant knew then that she was expected to pay for the architectural services, because she testified she asked Mr. Kleinschmidt if they were going to cost her ‘hundreds or thousands of dollars’ or words to that effect. Unfortunately, Mr. Kleinschmidt simply told her not to worry about this. Although he testified that later he showed Ms. Ayres his firm’s rate schedule and told her she was to be charged on an hourly basis (except for his own time), the court concludes the proof falls short of establishing that there was a meeting of the minds of these two parties as to just how much the architectural fee was going to be or exactly how it was to be computed.
“Nor does the evidence reflect that either party mentioned the anticipated cost of constructing the house at any time before the plans were completed. Ms. Ayres simply told Mr. Kleinschmidt and his staff what she wanted and they draw the plans therefor, with some suggestions and differences which they thought were advisable from an architectural standpoint. Some of the latter were unacceptable to Ms. Ayres. Also, at times she requested other things that she wanted in the house. The plans were changed accordingly.
“Ms. Ayres said she expected the plans to be completed by the end of 1976, but they were not presented to her in final form until March, 1977. There is a dispute between the parties as to just which of them was responsible for the delay and also whether or not it was unreasonable. The record does not reflect that the defendant expressed any great dissatisfaction to plaintiffs or took any positive action in this regard.
“In any event, Ms. Ayres was satisfied with the completed plans, at least until she received her first construction bid of $145,000.00. Later Mr. Kleinschmidt got a bid from another contractor for $125,-000.00 or $129,000.00. Shortly thereafter, Ms. Ayres went on a vacation and lost interest in the project. She testified at the trial that she did not know if she is going to have the house built.
“There was testimony by a witness experienced in construction work that the plans lacked some specification details. However, a contractor who testified on behalf of the defendant felt the plans were sufficient to obtain bids. The court concludes that the plans were complete from an architectural standpoint.”

The record fully supports these findings of fact by the trial court; thus no manifest error exists in this regard.

The defendant contends that plaintiffs cannot recover any fees as they failed to advise their client of the final cost of construction. The law in this regard is as follows:

An architect employed to prepare plans and specifications for a building, with the understanding that the construction would be accomplished within certain cost limitations, cannot recover compensation for his services when the building cannot be erected except at a cost materially in excess of the amount specified. MacDonnell v. Dreyfous, 144 La. 891, 81 So. 383 (1919); Tsoi v. Ebenezer Baptist Church, 153 So.2d 592 (La.App. 4th Cir. 1963); Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367 (1953).

On the other hand, where an architect is employed to prepare plans and specifications for a building and there are no cost limitations agreed upon, such architect can recover compensation for his services irrespective of the costs of construction. Moossy v. Huckabay Hospital, Inc., 283 So.2d 699 (1973). Further, if no cost limitations are agreed upon, the architect has no obligation to inquire into or to keep himself informed of his client’s financial status. 6 C.J.S. Sec. 28, Architects, p. 494; Guirey, Srnka & Arnold, Architects v. City of Phoenix, 9 Ariz.App. 70, 449 P.2d 306 (1969); Texas Delta Upsilon Foundation v. Fehr, 307 S.W.2d 124 (1957).

The record fully supports the trial court’s finding that “no such cost limitation was ever discussed or understood by the parties.” Ms. Ayres’ testimony in this regard is as follows:

“Q. Ms. Ayres, in fact, you didn’t really discuss money at all about this project during the whole course of the project, did you?
“A. We did not.
“Q. You were not really concerned about the cost per square foot, and didn’t ask him how much it would cost per square foot, did you?
“A. No.”

Under the above authorities and the facts of this case, the plaintiffs were under no duty to inform defendant of the costs of construction. The failure to so inform defendant would not be a bar to recovery of the architectural fee.

The defendant further contends that the plans did not benefit the defendant, thus recovery cannot be allowed.

The trial judge in his reasons for judgment concluded that there was no meeting of the minds of the parties as to how much the architectural fee was going to be or exactly how it was to be computed. In view of this, recovery was allowed on the basis of quantum meruit.

The trial court correctly resolved the contention of the defendant as follows:

“The defendant’s contention that she has not received any benefit from the house plans is not well taken. She accepted the final plans and they were submitted to two contractors, who bid on the construction of the home. Although Ms. Ayres said that both bids greatly exceeded the amount which she expected to spend, apparently such figures were not prohibitive and beyond all consideration because she indicated at the trial that she may still build the home at some time in the future.”

We find no manifest error in this conclusion.

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

AFFIRMED.

      . Kleinschmidt & Associates, Inc. became the successor of Kleinschmidt, Brassette & Associates, Inc. during the time the house plans were being prepared.

      . In Moossy the contract for architectural services contained no cost limitation. The fee of the architect was based upon a percentage of the estimated project cost. The architect estimated the cost at $499,210. The lowest bid was $821,018. The Supreme Court, after observing that no cost limitation was contained in the architectural employment contract, allowed recovery by the architect for his services, awarding the contract percentage (7% of 75%) of the estimated cost of $499,210.00.

      . The computation of the hourly charges is not contested.


author: GUIDRY, Judge.

text:
    Scriven W. GOURDON, Plaintiff-Appellee, v. ROCKWOOD INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6867.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Antoon, Dalrymple & Beck, Joseph T. Dalrymple, Alexandria, for defendants-appellants.
    Watson, Murchison, Crews & Arthur, William P. Crews, Jr., Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

This is a workmen’s compensation suit. The trial court found plaintiff to be totally and permanently disabled and awarded him judgment against defendants, the State of Louisiana, through the Department of Highways, and its insurer, Rockwood Insur-anee Company, for weekly benefits of $85.00 during the period of his disability, all unpaid medical and travel expenses, penalties and $2500.00 attorney’s fees. Defendants have appealed questioning correctness of the judgment only insofar as it allows recovery to plaintiff of expenses incident to treatment received and to be received from Doctors of Chiropractic and travel expenses attendant thereto. Plaintiff has answered the appeal and seeks an increase in the amount of attorney’s fees awarded.

The record reflects that plaintiff suffered a ruptured disc, probably at the L-5/S-1 level, as a result of an accident which occurred on June 14, 1976. He refused to undergo myelographic study and has likewise refused to submit to corrective surgery. Beginning approximately one year prior to trial plaintiff sought and received chiropractic treatments from licensed Doctors of Chiropractic for relief from pain. He continues to receive periodic treatments as the relief afforded is temporary and will admittedly not resolve his problem.

At trial Dr. George T. Shaw, Doctor of Chiropractic, testified that the treatment afforded plaintiff was manipulation or adjustment of the vertebra by use of an “activator gun” in the area near L-5 and that when adjusted plaintiff experienced a relaxation of the musculature and some relief from pain. Dr. Shaw further testified that the relief was only temporary and therefore there was a necessity for periodic treatment. With reference to the chiropractic treatments received by him plaintiff testified as follows:

“Well he was adjusting my back and getting it straight and I say the man done me good. He really done me good. But as far as getting me well, he didn’t get me well. Nobody else can do that; there’s nobody else . . . ”

Appellants contend they should not be condemned to reimburse plaintiff for the expenses incurred for these chiropractic treatments because the medical evidence in the record reflects such treatment to be unnecessary, being of no benefit and possibly injurious.

The applicable law, LSA-R.S. 23:1203 states in pertinent part:

“In every case coming under this Chapter, the employer shall furnish all necessary medical, surgical and hospital services, and medicines, or any non-medical treatment recognized bv the laws of this state as legal.” (Emphasis ours)

The State of Louisiana has recognized and authorized the practice of chiropractic by persons duly licensed and registered pursuant to LSA-R.S. 37:2801 et seq. It is not disputed that the expenses for which plaintiff seeks reimbursement were incurred for treatments received from duly licensed chiropractors. This being so the only further inquiry concerns whether the treatments were necessary.

At the outset we observe that under the cited statute the injured employee is entitled not only to all necessary medical and non-medical treatment which will serve to cure his disability but he is as well entitled to all such treatment as is necessary to relieve the pain which he suffers as a result of his disability. Although, it is true that the medical doctors who testified are in general agreement that there is no rationale for the chiropractic treatments received and that plaintiff should not derive any benefit therefrom, Dr. Shaw testified that his chiropractic adjustments, although ineffective as a cure for plaintiff’s condition, did afford relief from pain. Plaintiff testified that he derived considerable benefit from the treatments by way of relief from pain.

Our learned trial brother did not render written reasons for judgment however, we assume that he concluded on the basis of the evidence presented that the treatments received by plaintiff were both beneficial and necessary. We discern no manifest error in this conclusion. Further, we observe that in the recent case of Druil-het v. Trinity Universal Insurance Company et al, 361 So.2d 40, this court recognized that in actions ex delicto denial of incurred expenses for chiropractic treatment, when the accident relationship is unquestioned, solely on the basis of medical evidence that

such treatment is of no benefit and contraindicated, represents a failure to comply with the legislative intendment of LSA-R.S. 37:2801 et seq. We know of no valid reason why this rationale should not apply with equal force in an action for workmen’s compensation.

Plaintiff-appellee has answered the appeal requesting an increase in the attorney’s fees awarded. We believe that plaintiff is entitled to an increase in attorney’s fees so as to compensate him for the services rendered by his counsel on appeal and consider the sum of $500.00 to be adequate in this regard.

For the above and foregoing reasons we amend the trial court judgment so as to increase the attorney’s fees awarded from the sum of $2500.00 to the sum of $3000.00. In all other respects the judgment appealed from is affirmed at the cost of appellants.

AMENDED AND AFFIRMED.


author: FORET, Judge.

text:
    Michael W. NEWELL, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee.
    No. 6870.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Francis E. Mire, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard by Frederick L. Cappel, Lake Charles, for defendant-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   FORET, Judge.

This is a suit for workmen’s compensation benefits. The central issue presented on appeal is whether the trial judge erred in determining that the plaintiff had failed to prove any disability arising from a job-related accident.

The plaintiff, Michael W. Newell, was injured on August 11, 1977, while employed by Vincent Construction Company as a pipefitter. At the time of the accident, the defendant, United States Fidelity & Guaranty Company, provided workmen’s compensation insurance to plaintiff’s employer. The defendant paid compensation to the plaintiff from the time of the injury through November 8, 1977.

Plaintiff suffered a fracture at the base of the distal phalanx of his left long finger. He was taken to a nearby hospital where he was examined and treated by Dr. David Drez. A “Reardon” pin was inserted into the bones of the finger in order to hold it in its proper position while the bone healed. This pin was removed on September 20, 1977, and the plaintiff continued to see Dr. Drez until after October 20, 1977, at which time Dr. Drez informed the plaintiff that the fracture had healed as well as could be expected and that no further medical treatment was necessary.

Thereafter, plaintiff returned to work for Hick’s Plumbing Company but continued to complain of pain in his finger. On January 3, 1978, the plaintiff was sent by his attorney to Dr. Norman Morin for an examination. Dr. Morin concluded that Mr. Newell suffered from a five (5%) percent disability of his left hand. This was the only occasion on which Dr. Morin had the opportunity to examine the claimant.

In February of 1978, plaintiff filed this suit to recover compensation for total and permanent disability of his left hand and for penalties and attorney’s fees. The trial court therein held that the plaintiff had failed to sustain his burden of proof in establishing his disability and correspondingly dismissed his claim. Plaintiff now appeals.

It is well settled that a workmen’s compensation claimant must prove a permanent and total disability by a reasonable preponderance of the evidence. Furthermore, if the claimant alleges disability because of pain, then he must establish the reasonable existence of that condition by a preponderance of the evidence. The mere claim of pain without some proof is not sufficient to show such residual disability as would prevent a claimant from carrying on the same or similar work. Barre v. Hong-Kong Restaurant, Inc., 346 So.2d 318 (La.App. 4 Cir. 1977).

Whether pain suffered by a workmen’s compensation claimant is substantial enough to be disabling is a question of fact to be decided by the trial court and it depends upon an evaluation of the plaintiff’s credibility and upon the preponderance of both the medical and lay testimony. Lucas v. Insurance Co. of North America, 342 So.2d 591 (La.1977); Armstrong v. Gulf States Fishing, etc., 338 So.2d 779 (La.App. 4 Cir. 1976).

Medical testimony was given in this case by both Dr. Drez and Dr. Morin. Testifying on behalf of the plaintiff, Dr. Morin stated that Mr. Newell suffered a five (5%) percent partial permanent disability of his left hand. However, at no point in his testimony did Dr. Morin indicate that the plaintiff experienced substantial pain. Instead, he speculated that if there was pain, it would be of an extremely mild nature and would have absolutely no effect in restricting or preventing the claimant from returning to the same type of work he was engaged in prior to the accident.

Dr. Drez, the plaintiff’s treating orthopedist, indicated that there was no remaining disability of Mr. Newell’s hand as a result of the fracture. He testified that the finger had healed in an excellent anatomical alignment and that there was no evidence of scaring on the articular surface of the broken joint. In Dr. Drez’s opinion, there was no medical reason for any continuing pain to result from the accident of August 11, 1977.

Clearly, the question of whether the plaintiff continues to suffer pain from his injury is a factual determination to be made by the trial court. Findings of a trial court on factual issues in a workmen’s compensation case are entitled to great weight and are not to be disturbed except on a showing of manifest error. Stokes v. Continental Insurance Co., 345 So.2d 1200 (La.App. 1 Cir. 1977). A careful review of this record indicates that there is ample support for the trial judge’s determination of the issues raised on this appeal. Therefore, the holding of the trial judge in denying the plaintiff compensation is correct.

The appellant further asserts that he should be entitled to recover for the impairment of his left hand under LSA-R.S. 23:1221(4)(e, o). Despite the 5% disability factor that Dr. Morin assigned to plaintiff’s hand, it is apparent that he has suffered only an injury to his left long finger and there is no evidence that this caused a significant loss of use or function of the entire hand. Under this section of the Louisiana Workmen’s Compensation Act, he may, in such a circumstance, recover only for the injury to his finger based on that schedule (R.S. 23:1221(4)(c)) and not based on the hand. Babineaux v. Great American Insurance Co., 245 La. 718, 160 So.2d 591 (1964); Johnson v. Insurance Co. of North America, 236 So.2d 825 (La.App. 3 Cir. 1970); Cain v. St. Paul Fire & Marine Ins. Co., 201 So.2d 286 (La.App. 3 Cir. 1967); Harrison v. Abry Brothers, Inc., 350 So.2d 278 (La.App. 4 Cir. 1977), writ refused.

Testifying at trial, Dr. Morin assigned a 15% disability factor to plaintiff’s finger (Tr., pg. 69). Assuming, arguendo, such a disability, recovery is based (R.S. 23:1221(4)(c)) on 66%% of his weekly wages for twenty (20) weeks, with the 15% disability factor. This results in $33.20 a week for twenty (20) weeks or $664.00. As plaintiff has already been paid $1330.00 (temporary total disability for fourteen (14) weeks at $95.00 per week), immediately after he was injured, this amount must be subtracted dollar for dollar from any potential recovery for the finger. LSA-R.S. 23:1223; Fields v. Sperry Rand Corp., 343 So.2d 339 (La.App. 2 Cir. 1977), writ refused; Ennis v. Plant Service Construction Co., 316 So.2d 168 (La.App. 4 Cir. 1975), writ refused; Romero v. Argonaut Ins. Co., 227 So.2d 623 (La.App. 3 Cir. 1969).

Plaintiff cites Mullins v. National Food Stores of La., Inc., 175 So.2d 19 (La.App. 4 Cir. 1965) in support of his argument that an injury to a finger may result in a compensable hand disability. We factually distinguish Mullins by noting that there the injury to the (left index) finger of plaintiff necessitated its amputation and translated into a significant (25%) impairment in the functioning of the hand. These circumstances do not appear in our present case, and especially considering the differing medical testimony adduced at trial, we are unable to consider plaintiff entitled to any more than compensation for 15% disability to his left long finger.

Plaintiff also argues that a new provision of R.S. 23:1221(3) controls. However, careful reading of this provision in context shows that it only applies to recovery under that section of the workmen’s compensation law and not to recovery under R.S. 23:1221(4). R.S. 23:1223 applies and any possible recovery under the schedule for the finger injury is presently moot because, as noted above, he has already received workmen’s compensation payments in excess of those granted for this particular finger injury.

Finally, this Court affirms the action taken by the trial court in disallowing plaintiff’s claim for the $170 bill of Dr. Morin. We agree that this visit was for consultation, not treatment, and is therefore not recoverable. See Ducote v. Roy O. Martin Industries, Inc., 338 So.2d 1221 (La.App. 3 Cir. 1976); Caldwell v. Exxon Corp., 320 So.2d 319 (La.App. 4 Cir. 1975); Butts v. Ins. Co. of North America, 352 So.2d 745 (La.App. 3 Cir. 1977), writ refused, January 30, 1978; Milligan v. Bayou Vista Manor, Inc., 355 So.2d 569 (La.App. 3 Cir. 1978).

For the above and foregoing reasons, the action of the trial court is affirmed, and all costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . “(4) In the following cases, the compensation shall be as follows:

      (c) For the loss of any other finger, or a big toe, sixty-six and two-thirds per centum of wages during twenty weeks.”

      . § 1223. Deductions from benefits
      Where compensation has been paid under subdivisions (1), (2), or (3), of R.S. 23:1221, the amount of such payment shall be deducted from any compensation allowed under subdivision (4) thereof or under Sub-part C of this Part.

      .R.S. 23:1221(3)

      “provided further that for any week during which the employee is paid any compensation under this subdivision (3) the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision (3).”


author: DOMENGEAUX, Judge.

text:
    John W. HANCOCK, Plaintiff-Appellant, v. SAFECO INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6872.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.
    C. Edward Karst, Alexandria, Stafford, Trimble, Randow & Smith by James T. Trimble, Jr., Alexandria, Edward A. Ka-plan, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This suit involves a tort action brought by the tenant of an apartment complex against the maintenance man, owners, and insurer of the complex in order to recover for personal injuries sustained when a refrigerator fell down a flight of stairs.

Plaintiff, John W. Hancock, rented a furnished apartment in the Bayou Rapides Apartments in Alexandria, Louisiana. The Bayou Rapides Apartments are owned by Eddie Knippers, I. W. Knippers, Sidney Cox, and Lamar Cox. The insurer is Safeco Insurance Company.

On December 30, 1976, plaintiff and his wife discovered that the refrigerator in their apartment was not working properly. After several calls were made to the manager’s office reporting the difficulty, Mr. Grady Sitton, the complex’s maintenance man, came out to investigate. This occurred at approximately 5:00 P.M. At this time, plaintiff was in his apartment.

Sitton discovered that the refrigerator was defrosting and would not switch on; however, inasmuch as the day fell before New Year’s Eve, Sitton suggested that plaintiff wait until after the holidays to have the refrigerator repaired. When plaintiff complained of his food spoiling, Sitton offered him the use of another refrigerator until the one in the apartment could be repaired.

The extra refrigerator was located in a second floor apartment in another building of the complex. Plaintiff’s apartment was located on the first floor. A problem was presented with regard to moving the refrigerator from its storage location to plaintiff’s apartment. Moving the refrigerator entailed the necessity of going down a flight of stairs, consisting of fourteen steps.

Mr. Sitton’s helper for the day had already left, and, therefore, Sitton and Hancock agreed that in order to bring the refrigerator down, both would work together in moving it. Mr. Sitton obtained a dolly, and he and plaintiff went to the storage room and strapped the refrigerator to the dolly. Sitton then rolled the refrigerator to the second floor landing of the staircase and instructed plaintiff to get in front of the refrigerator in order to support some of its weight. Sitton was to hold onto the handles of the dolly. The idea was to move the wheels of the dolly down the staircase, one step at a time.

Hancock and Sitton began to move the refrigerator down the steps in this fashion. However, after going down about three or four steps, control of the refrigerator was lost, and it came sliding down the stairs, pushing Hancock in the process. When Hancock reached the ground, he was able to throw his body out of the path of the refrigerator; however, the refrigerator either struck or landed on plaintiff’s left heel, causing a bone fracture.

Plaintiff filed suit in tort against Sitton, the owners of the Bayou Rapides Apartments, and their insurer, Safeco Insurance Company. The owners and Safeco filed a third party demand against Sitton, alleging that Sitton was not covered by the insurance policy and that they would be entitled to reimbursement if they were found liable for damages as a result of Sitton’s negligence. Both Safeco and the owners requested and were granted a trial by jury.

After the evidence was adduced, the jury returned a verdict in favor of all three defendants and against the plaintiff. The jury made specific findings of fact that: (1) Sitton was not guilty of negligence; (2) Sitton was not working in the course and scope of his employment; (3) Hancock was contributorily negligent; and (4) Hancock had assumed the risk. Judgment was rendered accordingly, dismissing plaintiff’s suit at his costs.

From this judgment, plaintiff appeals, listing the following eight grounds of error:

(1) The trial court erred as a matter of law in failing to instruct the jury on the doctrine of res ipsa loquitur, despite plaintiff’s request to do so and an objection for failure to do so;

(2) The jury erred in not finding defendant, Grady Sitton, guilty of negligence proximately causing plaintiff’s injury;

(3) The jury erred in finding plaintiff guilty of contributory negligence causing the accident;

(4) The jury erred in finding that plaintiff had assumed the risk of injury to himself under the circumstances of this case;

(5) The jury erred in finding that Grady Sitton was not acting in the course and scope of his employment with Bayou Rap-ides Apartments at the time of the accident;

(6) The trial court erred as a matter of law in allowing counsel for Safeco and the owners of Bayou Rapides Apartments to cross-examine its own employee, Grady Sit-ton, despite plaintiff’s objection;

(7) The trial court erred as a matter of law in failing to give the jury the opportunity to assess liability against the owners of Bayou Rapides Apartments, and in failing to instruct the jury concerning the lessor’s legal obligations under the Civil Code and the liability that could arise from a lessor’s negligence in fulfilling those obligations; and

(8)The trial court erred in entering judgment dismissing plaintiff’s claim against the lessor and the liability insurer without the jury making a specific finding thereon.

With regard to plaintiff’s first specification of error, we feel that this case is not a proper one for the application of res ipsa loquitur.

Res ipsa loquitur is a rule of circumstantial evidence which is applied in cases where the facts are such as to indicate that the negligence of the defendant, rather than some other as-plausible explanation, is the most probable cause of the injury. The principle serves as an aid to the plaintiff because, when properly applied, it gives rise to an inference of negligence which the plaintiff places in the scales along with the other facts of the case in order to prove his position by a preponderance of the evidence. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

The test of applying res ipsa loqui-tur is simply: Do the facts of the case indicate that the negligence of the defendant is the most plausible explanation of the accident? Stated differently, the test is: Are the facts of the case such as to suggest an explanation for the accident, other than the negligence of the defendant, which is just as plausible as one explaining the accident in terms of the defendant’s negligence? When it can be shown reasonably that the accident could have occurred as a result of one of two or more causes, the rule cannot be invoked. Taylor v. CNA Insurance Group, 300 So.2d 479 (La.1974); Boudreaux v. American Insurance Company, supra.

Turning to the record in the instant case, only three witnesses were able to testify as to the events occurring during the actual operation of moving the refrigerator. These witnesses were plaintiff, defendant Sitton, and Scott Kuykendall, a fourteen year old who had witnessed the accident.

The testimony of Hancock and Sitton was consistent to the extent that neither could see the actions or movements of the other once they began to move the refrigerator down the stairs, because both testified that the refrigerator blocked their views.

Mr. Sitton stated that, all of a sudden, the entire weight of the refrigerator depended upon his support when he began to go down the steps. He testified that this weight was too much for one person to support, and, therefore, the handles of the dolly simply pulled through his hands. As a consequence, the refrigerator fell down the stairs.

Mr. Hancock stated that he was supporting the refrigerator from the bottom when, all of a sudden, the entire weight of the refrigerator came on him. He could no longer hold it and had to “ride” it down the steps.

Scott Kuykendall, who was twelve years old at the time of the accident, but fourteen years old at the time of trial, testified that he was standing on the second floor in the vicinity of the staircase landing, watching the moving operation. He stated that, all of a sudden, the refrigerator seemed to get away from Sitton, and it went down the stairs. He also stated that he could not see Hancock when the refrigerator actually slipped.

We do not think that the facts of this ease indicate that the negligence of Sitton is the most plausible explanation of the accident. Under the above testimony, which is the only information available as to the actual occurrence of the incident, it is obvious that there are at least two explanations for the accident. It is just as reasonable to draw the inference that the accident occurred as a result of Hancock letting go of his end of the refrigerator, as it is to draw the inference that the accident occurred as a result of Sitton letting go of his end of the refrigerator.

Under these circumstances, the test for applying res ipsa loquitur is not met, and, therefore, we find that the trial judge was not in error by refusing to instruct the jury of the rule.

Plaintiff next contends that the jury erred in failing to find negligence on the part of Sitton.

We have carefully reviewed the evidence in this case and feel that plaintiff did not discharge his burden of proving negligence on the part of Sitton.

As indicated above, the testimony of neither Sitton nor plaintiff indicates which one of the pair was negligent, if either actually was. Plaintiff advances three theories of potential liability on the part of Sitton. He claims that Sitton was inattentive while going down the stairs, that Sitton should have warned Mr. Hancock of the potential dangers involved when moving a heavy refrigerator down a flight of stairs, and that Sitton should have warned plaintiff that the dolly had come loose before the refrigerator came down on plaintiff.

Sitton himself testified that he was paying close attention to what he was doing, and that he was watching his steps very carefully when going down the staircase. This testimony is uncontradicted. With regard to Sitton knowing about the difficulty in moving the refrigerator, and failing to warn plaintiff thereof, it is to be pointed out that both plaintiff and Sitton loaded the refrigerator onto the dolly. Both must have realized that the refrigerator was heavy. Furthermore, it takes no particular expertise to realize that moving a refrigerator down a flight of stairs is a difficult operation. We do not feel that Sitton was negligent in failing to warn plaintiff of the dangers involved.

The fact that Sitton did not inform plaintiff that the dolly had come loose is also not negligence on the part of Sitton within the context of this case. The accident occurred in a matter of seconds. Plaintiff was immediately below the refrigerator when it began to fall. Obviously, Sitton did not have time to tell plaintiff of this fact.

Having found no error on the part of the jury in absolving Sitton from negligence, it is unnecessary to discuss plaintiff’s third, fourth, and fifth specifications of error, dealing with contributory negligence, assumption of risk, and whether Sitton was acting in the course and scope of his employment, respectively.

Plaintiff’s next specification of error is that the trial judge should not have permitted counsel for Safeco and the owners of the apartments to cross-examine co-defendant Sitton during the trial.

As pointed out above, Safeco and the owners, as third party plaintiffs, filed a demand against Sitton, as third party defendant, contending that Sitton would not be covered by Safeco’s policy, and contending that, if acting in the course and scope of his employment, Sitton would be responsible to his employer or to Safeco, as the insurer, for any damages they would have to pay as a result of his negligence. Thus, Sitton was an adverse party to Safeco and the owners insofar as the third party demand was concerned. As an adverse party, counsel for the third party plaintiff had the right to cross-examine Sitton under Article 1634 of the Louisiana Code of Civil Procedure. Thus, the trial judge was not in error by permitting cross-examination. See Soprano v. State Farm Mutual Automobile Insurance Company, 246 La. 524, 165 So.2d 308 (1964); Giraud v. Clark, 354 So.2d 752 (La.App. 4th Cir. 1978).

In any event, we have also reviewed the testimony of Sitton while being cross-examined by third party plaintiffs and fail to find any reversible error in such testimony, even if the scope of permissible cross-examination was exceeded. The period of cross-examination was very brief, and most of the information elicited from Sitton was mere reiteration of what had already been revealed.

The final two specifications of error are bound together. Plaintiff maintains that two requested jury charges, dealing with the lessor’s duty to repair leased premises and the lessor’s responsibility for negligent execution of these repairs, should have been given, and that judgment should not have been entered dismissing plaintiff’s claim against the apartment complex, without the jury making a specific finding thereon. Plaintiff had alleged in his pleadings that the owners of the Bayou Rapides Apartments were independently negligent in failing to provide adequate help to Sitton in order to move the refrigerator.

The requested jury charges read as follows:

“PLAINTIFF’S REQUESTED JURY CHARGE NO. 17
The Lessor is bound to deliver the thing leased in good condition and free from any repairs. During the continuance of the lease he ought to make all repairs which may accidentally become necessary.
Under Louisiana Law the Lessor must maintain the property in such condition as to serve the purpose for which it is leased. LSA-CC Articles 2692, 2693 et seq.; Bialy v. Katz, 273 So.2d 360 (La.App. 3rd Cir. 1973); Billeaudeaux v. Soileau, 303 So.2d 810 (La.App. 3rd Cir. 1974).
PLAINTIFF’S REQESTED JURY CHARGE NO. 18
Where a Lessor undertakes to make a repair and does so negligently, and injury results, then liability may be fixed upon the Lessor. Vignes v. Barbarra, 5 So.2d 656 (La.App.Orl.1942) and cases cited therein.”

Although plaintiff may be correct in maintaining that an apartment complex could be liable independently for providing an inadequate staff, we do not feel that the requested jury charges reflect such a theory of liability. Under the facts of this case, we fail to discern a corollary between the landlord’s duty to repair in a non-negligent fashion, and a landlord’s duty to provide an adequate staff. Any responsibility to repair on the part of the landlord did not have causal connexity to the accident which occurred.

Since the requested jury charges were not reflective of the theory of liability urged, we find that the trial judge did not err by rejecting them.

Thus, the only basis for assessing liability against the owners of the apartments and their insurer remaining at the close of trial came by way of vicarious liability. Since the jury specifically found Sitton free from negligence, it follows that the apartment owners, and their insurer, Safeco, could not be vicariously liable. Thus, we discern no error on the part of the trial judge in entering judgment dismissing plaintiff’s claim against them.

For the above reasons, the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.

      . La.C.C.P. Art. 1634 provides:
      “Any party or his representative may be called as a witness and cross-examined by the adverse party without the latter vouching for his credibility, or being precluded from impeaching his testimony, and immediately thereafter the witness thus called may be examined or cross-examined to the extent otherwise permitted by law upon the subject matter of his examination in chief by such adverse party. The court may permit the recall and further cross-examination of the party or of his representative as often as it deems such action to be in the interest of justice.
      ‘Representative’ as used in the paragraph above and in Article 1428(2) means an officer, agent or employee having supervision or knowledge of the matter in controversy, in whole or in part, whether or not he is in the employ of or connected with the party at the time his testimony is taken.”


author: CULPEPPER, Judge.

text:
    Edna SIMMONS, Individually and on behalf of her minor daughter, Jane Simmons, Plaintiff and Appellant, v. CITY OF LAKE CHARLES et al., Defendants and Appellees.
    No. 6873.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Hunt,' Godwin, Painter & Roddy, David Painter, Lake Charles, for plaintiff and appellant.
    Plauché, Smith, Hebert & Nieset, James R. Nieset, Lake Charles, Woodley, Barnett, Cox, Williams & Fenet, Robert W. Fenet, Lake Charles, Levingston, Ezell & Liles, Henry R. Liles, Lake Charles, for defendants and appellees.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries. Plaintiff’s 13-year old daughter was riding her bicycle on a public street in the City of Lake Charles on December 31, 1974 when the tire of her bicycle struck an alleged “irregular place, or hump” where the concrete driveway into the residence of Mr. and Mrs. Mark J. Bellard ended on the concrete street. The bicycle fell, and she suffered head injuries. Named as defendants in plaintiff’s original petition filed on December 31, 1975 are: (1) The City of Lake Charles and its liability insurer, Signal Insurance Company; (2) Mark J. Bellard, alleged owner of the driveway, and his liability insurer, Republic Insurance Company; (3) Southern Construction Company, which is alleged to have constructed the street. In a supplemental petition, filed more than one year after the date of the accident, plaintiff alleges that Mrs. Louisa Erny Bel-lard is the owner of the abutting property, rather than her husband, Mark Bellard. The Bellards and their liability insurer filed an exception of prescription on the basis that suit was filed against the actual owner of the property more than one year after the accident. They also filed a motion for summary judgment on the basis that the alleged defect at the end of their driveway is located in the city street, not on their private property, and that the only allegations of negligence on the part of the Bel-lards is that they knew of the defect in the street and failed to correct it. The Bellards contend they had no duty to correct defects in the street of which they had knowledge, their only duty being to refrain from creating defects in the street. The district judge sustained the motion for summary judgment “on the grounds of prescription and non-ownership of the property where the accident is alleged to have occurred.” The plaintiff appealed.

The substantial issues are: (1) Was the defect in the street? (2) As a matter of law, what is the duty of the owner of property adjoining a city street as to defects in the street? (3) Based on the pleadings, affidavits and other documents which may be considered on the motion for summary judgment, is there a genuine issue of material fact as to whether the Bellards breached their duty not to create the defect in the street which caused the injuries to plaintiff’s child?

NON-OWNERSHIP OF PROPERTY

In support of their motion for summary judgment, the Bellards filed an affidavit stating that the residence which they own is located on Lot 9, Block N of Greinwich Terrace, Tract No. 2. Attached to their affidavit is a copy of a plat of a survey by a registered surveyor showing the location of their dwelling and the driveway which extends from their property line a distance of 18 or 20 feet out into the street. Since plaintiff alleges the defect in the street which caused the injuries is at the end of the Bellard driveway, the affidavit by the Bellards and the attached plat show that the defect in question is in the street on property owned by the City of Lake Charles and not on property owned by the Bellards. Neither the plaintiff nor the City of Lake Charles, as third party plaintiff, filed any affidavits or other documents to contradict the Bellards’ affidavit that the defect is in the street. Thus, there is no genuine issue of material fact in this regard. LSA-C.C.P. Articles 966 and 967; Tubbs v. Louisiana Power & Light Company, 349 So.2d 994 (2d Cir. 1977).

DUTY OF OWNER OF PROPERTY ABUTTING STREET

In her petition, plaintiff makes the following allegations of negligence on the part of the Bellards:

“5.
“On or about December 31, 1974, at approximately 4:00 o’clock P.M., the daughter of petitioner, was riding her new bicycle on North General Wainwright Street in the CITY OF LAKE CHARLES in a subdivision known as Greinwich Terrace, when she hit an irregular place where the street connected with the driveway of MARK J. BELLARD. This irregular place, or hump, in the pavement caused JANE SIMMONS to lose control of the bicycle and fall down on the concrete, hitting her head, causing grevious and serious injuries to her scalp, skull and brain.
******
“8.
“Defendant, MARK J. BELLARD, is the owner of the residence at 3317 North General Wainwright Street and his driveway was pushed upward by the slipping or movement of the curve of General Wainwright in a Northerly direction at the intersection of North General Wainwright and East General Wainwright. MARK J. BELLARD was aware of this slippage and of the fact that his driveway was being forced up, creating a dangerous condition, and did nothing to remedy the conditions. BELLARD’S failure also caused the injury of JANE SIMMONS.
“9.
“The improper construction of the street by SOUTHERN CONSTRUCTION COMPANY caused it to slip in a Northerly direction when used by normal traffic, for which it should have been designed. The slipping to the East of the street caused driveways in the area to buckle or raise up as the street slid under them. The CITY OF LAKE CHARLES, after it accepted the street, was made aware of the movement of the street and did nothing to correct the condition. The homeowner, MARK J. BELLARD, was aware that this was happening to his driveway and did nothing to rectify the situation and fix his dangerous driveway. The negligence of all the defendants, when joined together, caused the injuries JANE SIMMONS suffered.”

Plaintiff filed a supplemental and amending petition stating that actually Mrs. Louisa Erny Bellard is the owner of the property in question, rather than her husband, Mark Bellard, and she makes this allegation as to the Bellards’ negligence:

“ ‘Mark J. Bellard, who normally did the repair work around the house and Louisa Erny Bellard, the owner, were both aware of the slippage and the fact that their driveway was being forced up, creating a dangerous condition and did nothing to remedy the conditions. The Bel-lards’ failure to do so caused the injuries of Jane Simmons.’ ”

On the basis of these allegations by plaintiff that the defect was at the end of the Bellards’ driveway, and the Bellards’ affidavit and attached plat of survey showing that the end of their driveway is in the city street approximately 20 feet from the Bellards’ property line, the motion for summary judgment should be granted. The jurisprudence is clear that the owner of the property adjoining a city street is not liable for injuries sustained as a result of a defect in the street. The one exception to this rule is that the abutting property owner may be liable where he creates the defect. St. Paul v. Macenroth, 246 La. 425, 165 So.2d 273 (1964); Snow v. City of Shreveport, 287 So.2d 647 (La.App. 2d Cir. 1974, writ refused). In the present case, plaintiff does not allege that the Bellards created the defect in the street. Plaintiff alleges only that they knew of the defect and failed to correct it.

GENUINE ISSUE OF MATERIAL FACT

The final issue is whether the pleadings, affidavits and other documents which may be considered on the motion for summary judgment show that there is a genuine issue of material fact as to whether the Bellards created the defect in the street. As stated above, plaintiff’s petition does not allege that the Bellards created the defect. Plaintiff alleges only that the Bellards knew of the defect and failed to correct it. Furthermore, plaintiff filed no opposing affidavits or other documents raising any issue as to whether the Bellards created the defect. Nevertheless, in her brief filed in this Court, plaintiff relies on the allegation in the third party demand by the City of Lake Charles that the Bellards were negligent in the “Creation of conditions which caused the defect.” Additionally, plaintiff relies on an affidavit filed by the City of Lake Charles in opposition to the Bellards’ motion for summary judgment. The affidavit in question is by a Mr. John Jaynes, an investigator for the City. In this affidavit, Mr. Jaynes states that during his investigation “Mr. and Mrs. Bellard indicated that since 1967 the driveway had been repaired several times by Mr. Bellard and that Mrs. Bellard paid to have the driveway repaired once.” Attached to this affidavit is Mr. Jaynes’ handwritten statement of what the Bellards told him. It is noteworthy that this handwritten statement contains no indication that the Bellards told Mr. Jaynes that they had repaired the driveway. Thus, the question is whether the above quoted statement from Mr. Jaynes’ affidavit may be considered on the motion for summary judgment, and whether, if considered, it is sufficient to raise a genuine issue of material fact.

We conclude the affidavit of Mr. Jaynes may be considered. In a trial on the merits, Mr. Jaynes’ testimony would be admissible as an out of court statement by a party to the suit. Farris v. Baker, 240 So.2d 410 (La.App. 2d Cir. 1970).

Although the affidavit by Mr. Jaynes may be considered, it is not sufficient to raise a genuine issue of material fact. The affidavit states only that Mr. and Mrs. Bellard told Jaynes that they had repaired the driveway several times. There is nothing in the affidavit indicating specific facts as to the nature of these repairs and, thus, nothing to indicate that these repairs in any way created any hazard or defect in the street. If Mr. Jaynes were permitted to take the witness stand and testify at the trial that the Bellards told him they had repaired the driveway several times, this would clearly not be sufficient to find liability on the part of the Bellards.

We recognize the established rule that all reasonable doubts are to be resolved against the granting of summary judgment, that summary judgment procedures are not a substitute for trial on the merits, and that summary judgment should not be granted where the materials considered show that there is a genuine issue of fact which should be tried on the merits. Parker v. South Louisiana Contractors, 340 So.2d 322 (La.App. 1st Cir. 1976).

However, LSA-C.C.P. Article 967 provides in pertinent part:

“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits, or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” (Emphasis supplied)

In the present case, the Bellards’ motion for summary judgment was supported by their affidavit and attached plat showing that they did not own the property where the accident occurred. Under the law, they are not liable unless they created the defect in the street. Plaintiff’s petition does not allege that the Bellards created the defect. Plaintiff did not seek to amend her petition to allege that the Bellards created the defect, nor did she introduce any affidavits or other material to show that they created the defect. Instead, plaintiff, on appeal, relies on the allegation in the city’s third party demand that the Bellards created the defect, and on the affidavit by Mr. Jaynes that the Bellards told him they had repaired the driveway. Even if we consider, as plaintiff suggests, the affidavit by Mr. Jaynes, it does not “set forth specific facts showing that there is a genuine issue for trial,” within the meaning of this requirement in LSA-C.C.P. Article 967. The affidavit is clearly deficient in that it does not set forth “specific facts” as to the nature of the repairs or the way in which such repairs could have created a defect which could have caused the accident.

Having concluded there is no genuine issue of material fact as to whether either Mr. or Mrs. Bellard could have created a defect in the street which could have caused the accident, we do not reach the issues regarding prescription.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    Donald R. BATES, Plaintiff-Appellant, v. GARRETT MARINE SUPPLY, INC., et al., Defendants-Appellees.
    No. 6875.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Evans & Bradley by Mitchell M. Evans, DeRidder, for plaintiff-appellant.
    Welton P. Mouton, Jr., Lafayette, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This appeal results from an intersectional automobile accident which occurred on November 17, 1976, in Lafayette, Louisiana. Plaintiff, Donald R. Bates, was operating his own automobile. He filed suit against the alleged responsible parties, and, after trial, was awarded judgment in the amount of $4,310.76. This consisted of $2,000.00 for personal injuries, $429.50 for medical expenses, $1,500.00 for damages to his automobile, $256.26 for car rental, and $125.00 for expert witness fees. He appeals, questioning the adequacy of the amount awarded him for personal injuries. The defendants were Mrs. Isabel Garrett, the driver of the other vehicle, Garrett Marine Supply, Inc., the owner of the vehicle, and the liability insurer, Hartford Accident & Indemnity Company. They have answered the appeal, seeking a reduction in the judgment and, alternatively, contending that the trial court erred in holding Mrs. Garrett guilty of negligence and/or Mr. Bates free of contributory negligence.

The trial judge, who rendered written reasons, found that Mrs. Garrett ran a stop light, thereby causing the accident, as Mr. Bates was properly proceeding through the intersection. He found that Mrs. Garrett’s negligent failure to stop her car at the control light was the sole cause of the accident, and that plaintiff committed no act of negligence contributing to the collision. Our thorough review of the record discloses no manifest error and, in fact, shows that the factual findings are correct.

Defendants argue that, if Mrs. Garrett had lawfully entered the intersection prior to Mr. Bates, she would have pre-empted it, and the doctrine of pre-emption would thereby bar plaintiff from recovery under La.R.S. 32:232.

The record provides no basis for finding that Mrs. Garrett was lawfully within the intersection or that Mr. Bates had entered the intersection immediately after receiving a green signal without allowing a reasonably sufficient time for vehicles already in the intersection to clear.

Defendants also argue that La. R.S. 32:124 should bar plaintiff from recovery, inasmuch as that statute placed a duty on plaintiff, who was leaving a shopping center roadway, to yield to all traffic on the public highway, notwithstanding the fact that the shopping center exit was controlled by the traffic signal in question. We disagree. Our laws must be construed together so as to give meaning to all provisions, if such an interpretation is possible. To hold that this statutory provision applies even when a traffic control signal is in operation at an intersection, and is, at the time of the accident, in favor of the crossing motorist, would not only create havoc, but would leave La.R.S. 32:232 without meaning.

We turn now to the question of damages for personal injuries. Plaintiff is a forty-two year old male school teacher, who taught the fifth, sixth, and seventh grades for some eight years. At the time of trial he was still employed in that profession, in the same capacity, and by the same School Board.

Initially, he complained of pain in the right thumb, right hand, and knees as a result of the accident. There is no objective evidence of trauma to the thumb and hand, and no medical evidence of trauma to the knees. There was, however, some evidence of osteo-arthritic changes in the thumb of the right hand which, according to the medical evidence, were of long-standing, and not caused by the accident.

Plaintiff’s principal claim on the inadequacy of the award has to do with the state of anxiety which he claims was caused or brought about as a result of the accident. We find that the medical testimony does not establish the accident as the cause of plaintiff’s anxiety but instead, only moderately, if at all, aggravated a pre-existing condition.

The trial court found that the personal injuries suffered by the plaintiff were minimal. As a result of having been slightly shaken up in the accident, Mr. Bates experienced “mild to moderate anxiety and nervousness.” This finding is supported by the testimony of one of the expert witnesses, Dr. James J. Fournet, a general practitioner, who was plaintiff’s treating physician. Doctor Fournet testified that Mr. Bates did have a normal anxiety type reaction, which is “not at all unusual for anybody that has been ‘shook-up’ or involved in an accident,” and that the degree of this condition was only “mild to moderate, at the outside.”

Furthermore, both Doctor Fournet and the other expert witness, Dr. Giles R. Morin, a psychiatrist, testified that the condition complained of by plaintiff was one which, for the most part, existed prior to the accident. Mr. Bates had reported similar nervous symptoms to Doctor Fournet prior to the accident. Doctor Morin found plaintiff to be primarily schizoid (a quiet, introspect, somewhat withdrawn individual, with accompanying anxieties), and such a personality “is usually developed within the first six years of life.” After several visits and a thorough examination of Mr. Bates, Doctor Morin was of the opinion that, if the accident contributed at all to plaintiff’s condition, it did so only slightly.

We add also that, although plaintiff alleged a post traumatic neurosis or conversion reaction, the medical evidence is conclusive that he does not experience either of these phenomena.

Even though a tort-feasor takes his victim as he finds him, before recovery can be granted for the aggravation of a pre-existing condition, plaintiff must establish by a preponderance of the evidence a causative link between the accident and his current status. The record is replete with evidence to sustain the trial court’s finding that the accident contributed only slightly, if at all, to plaintiff’s condition. Under these circumstances, the $2,000.00 award is not an inappropriate grant for plaintiff’s personal injuries caused by the accident.

Plaintiff correctly calls our attention on appeal to the fact that the trial judge assessed expert witness fees in the sum of $125.00 per witness, whereas the judgment only includes such fees for one expert. Two medical experts testified, namely Doctors Fournet and Morin. We also note that the expert witness fee was included as part of the judgment. Under La.R.S. 13:3666, expert witness fees are taxed as costs. Accordingly, we will reduce the amount of the judgment to delete the $125.00 figure, and will fix the expert witness fees at the sum of $250.00, to be taxed as costs, and to be paid by defendants.

For the above and foregoing reasons, the judgment of the trial court is reduced from the sum of $4,310.76 to the sum of $4,185.76, and the expert witness fees are fixed at the sum of $250.00. In all other respects, the judgment of the trial court is affirmed. All trial court costs are assessed against defendants.

Costs on appeal are assessed one-half to plaintiff-appellant and one-half to defendants-appellees.

AFFIRMED, AS AMENDED.

      .The pertinent part of La.R.S. 32:232 reads as follows:
      “Whenever traffic is controlled by traffic-control signals exhibiting the words “Go,” “Caution,” or “Stop,” or exhibiting different colored lights successively at a time, or with arrows, the following colors only shall be used and said terms and lights shall indicate and apply to drivers of vehicles and pedestrians as follows:
      (1) GREEN alone, or GO:
      (a) Vehicular traffic facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. But vehicular traffic, including vehicles turning right or left, shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection or an adjacent cross walk at the time such signal is exhibited.”

      . La.R.S. 32:124 reads as follows:
      “The driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right of way to any pedestrian as may be necessary to avoid collision, and shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.”

      . Plaintiffs first treating physician, Dr. Richard M. Miers, did not testify.


text:
    Leola Nelson STUBBS, Plaintiff-Appellant, v. Lloyd LEE and Gayle Dunn Lee, Defendants-Appellees.
    No. 6877.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Gold, Little, Simon, Weems & Bruser by Eugene J. Sues and Larry Feldman, Jr., Alexandria, for defendants-appellees.
    Gravel, Schley & Van Dyke by Harold A. Van Dyke, Alexandria, Downs & Downs by James C. Downs, Alexandria, for plaintiff-appellant.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is a suit by a tenant, Leola Nelson Stubbs, against her landlords, Lloyd and Gayle Lee, seeking damages due to personal injuries incurred by plaintiff as a result of an accident occurring on the rented premises. After trial on the merits, the trial court rendered judgment in favor of defendants and against plaintiff, dismissing plaintiff’s suit. From this judgment plaintiff appeals. We affirm.

On November 26, 1976, plaintiff was a tenant in an apartment owned by defendants. The apartment was equipped with a retractable bed, known as a “Murphy bed.” The bed, when in a raised position, was stored in a closet. Attached to the bed is a hinge device equipped with counterbalanced springs which facilitates the raising and lowering of the bed. This device is attached to the floor inside the closet by wood screws.

On this occasion, the bed was in a lowered position and plaintiff was in the process of storing some clothes in the extra space in the closet. While plaintiff was stooped over placing the clothes, she was struck across the face by a part of the hinge device which had suddenly come loose from the floor.

The trial court, in reasons for judgment, concluded that the screws had become loosened by use, allowing the apparatus to jump upward, striking plaintiff and causing facial injuries. The trial court concluded that, under the facts presented, the plaintiff and her husband were aware of the loosened screws and were under the duty to repair same under the provisions of LSA-C.C. Art. 2716. The trial court concluded that such repair was not an obligation of the landlords under the provisions of LSA-C.C. Art. 2695.

The issue presented on appeal is whether LSA-C.C. Art. 2695 or Art. 2716 is applicable to the facts herein.

Article 2695 provides as follows:

“The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

Article 2716 provides as follows:

“The repairs, which must be made at the expense of the tenant, are those which, during the lease, it becomes necessary to make:
To the hearth, to the back of chimneys and chimney casing.
To the plastering of the lower part of interior walls.
To the pavement of rooms, when it is but partially broken, but not when it is in a state of decay.
For replacing window glass, when broken accidentally, but not when broken either in whole or in their greatest part by a hail storm or by any other inevitable accident.
To windows, shutters, partitions, shop windows, locks and hinges, and everything of that kind, according to the custom of the place.”

Article 2716 enumerates certain minor repairs which, during the existence of the lease, must be made at the expense of the tenant. The courts of Louisiana have viewed these enumerated items in Article 2716 as non-exclusive.

In the case of Vignes v. Barbarra, 5 So.2d 656 (Orl.App.1942), the plaintiff sought recovery for damages incurred when a screw pulled out of the ceiling causing the porch swing, in which plaintiff was seated, to fall. In denying the plaintiff recovery, the court stated:

“. . . It is true, of course, that by Article 2716 of the Civil Code it is required that certain repairs be made by the lessee, and we think it is also true that such things as hammock hooks, porch or swing hooks, etc., should be properly included among those things, and that they are contemplated by the last paragraph of the article, which places among the repairs to be made at the expense of the defendant, those ‘To windows, shutters, partitions, shop windows, locks and hinges, and everything of that kind, according to the custom of the place.’ ”

The lease herein, between the plaintiff and the defendant, was oral, and, there being nothing which would impose any additional burden on the lessor or relieve the lessee from making the minor repairs enumerated in Article 2716, the lessee is bound to make these minor repairs. We view the screws which secured the “Murphy bed” to the floor as one of those minor repairs envisioned by Article 2716.

Where an injury results from the failure of a tenant to make the repairs, which under LSA-C.C. Art. 2716 must be made at his expense, there can be no recovery against the lessor. Daniels v. Zurich Insurance Company, 184 So.2d 773 (La.App. 2nd Cir. 1966). The trial court correctly ruled that plaintiff was barred from recovery.

For the reasons assigned, the judgment of the district court is affirmed, and all costs of this appeal are assessed against the plaintiff.

AFFIRMED.

      . Hutchins v. Pick, 164 So. 173 (Orl.App.1935), shutter door within contemplation of Art. 2716; Daniel v. Zurich Insurance Co., 184 So.2d 773 (La.App. 2nd Cir. 1966), window cord within contemplation of Art. 2716; Lowe v. Home Owners Loan Corporation, 1 So.2d 362 (Orl.App.1941), door knob included in Art. 2716.


author: SWIFT, Judge.

text:
    Reginald KANE, Plaintiff-Appellant, v. Gilman BRAQUET, Jr., et al., Defendants-Appellees.
    No. 6884.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Writ Refused April 23, 1979.

      Walton J. Barnes and George L. Clauer, III, Baton Rouge, for plaintiff-appellant.
    Landry, Watkins & Bonin, William 0. Bonin, New Iberia, J. Minos Simon, and David A. Hurlburt, Lafayette, for defendants-appellees.
    Before WATSON, SWIFT and STOKER, JJ.
   SWIFT, Judge.

The plaintiff, Reginald Kane, has brought this tort action for damages against the defendants, Gilman Braquet, Jr., Mayo Romero, Sr., Avery Island, Inc. and Mcll-henny Company. The trial judge sustained a peremptory exception of no cause of action filed by all of the defendants except Braquet, and the plaintiff has appealed. We affirm.

According to the petition, at approximately 10:30 P.M. on March 2, 1977, the plaintiff was on his way to work with International Salt Company at its salt mine on Avery Island, Louisiana. At the entrance to the island which is owned by Avery, he stopped at a guard house and on being identified was admitted by the guard, Romero, an employee of Avery and Mcll-henny. Shortly after Kane had passed, Gil-man Braquet, Jr. stopped at the gate. Although intoxicated, he was admitted by Romero without requiring him to produce any identification or recognizable authorization. Upon gaining access Braquet proceeded to International’s parking lot on that portion of the island leased from Avery where he shot Kane in the abdomen.

The allegations of the petition, as amended four times, dealing with exceptors’ liability are as follows:

3-A.
“Petitioner shows that Avery Island, Inc. has established certain rules for the purpose of governing access to Avery Island, Inc. and, for the purpose of maintaining those rules, it also maintains a toll gate at the only road entrance to Avery Island. The toll gate is manned by a guard or gate keeper employed by Avery Island, Inc., in part, for the purpose of enforcing its rules and regulations with regard to access. Avery Island, Inc. has established, among others, these rules and regulations:
1. No vehicle will be admitted without proper State or Parish inspection stickers, and in proper operating condition according to State and Parish laws and regulations, no vehicle which may cause damage to the road will be admitted.
2. All vehicles and persons seeking admission to Avery Island must be identified at the toll gate as being properly entitled to enter the property, and vehicles entering the property shall be subject to inspection at the time of entering and upon leaving the property, Avery reserves the right to refuse admission to any vehicle previously involved in a violation of these rules.
3. No fire-arms of any kind may be brought on the property without the written permission of Avery.
4. Should any person or persons violate any of the above rules and regulations, Avery shall call the attention of International to such a violation, and in the event of a repetition of the violation of any of the above rules and regulations by said person or persons, Avery shall bring the same to the attention of International and shall advise International that thereafter such person or persons shall be refused admittance to Avery Island unless his, her or their presence on Avery Island shall be under the supervision of an acredited (sic) representative of International to insure compliance with all of the above rules and regulations.
5. No known criminal or undesirable person shall be admitted entrance to Avery Island at any time unless a court order, N.L.R.B. decision or arbitration decision under the agreement between International Salt Company and the International Chemical Workers provides otherwise.
6. Flagrant disregard or violation of the above or posted regulations which are acknowledged by International as being reasonable, or a moral conduct are recognized by both International and Avery as sufficient grounds to classify a person as undesirable.
3-B.
“In addition to the above described rules and regulations, the guard or gate keeper at the toll gate maintained by Avery Island, Inc. had received specific verbal instructions classified as rules by Avery Island, Inc. to keep persons in an intoxicated condition off of the International Salt Company mine premises.
3-C.
“The guard or gate keeper maintained at the only entrance to Avery Island by road was charged, in addition to the above described items, with issuing a decal identification sticker which is normally or frequently placed on the windshield of vehicles authorized to enter Avery Island.
3-D.
“The guard or gate keeper maintained at the toll gate entrance to Avery Island was additionally charged with selling permits to visitors to Avery Island who are not otherwise authorized to enter the premises. The described permit is in the form of a numbered ticket, imposing upon persons so permitted to enter, certain rules and regulations, violation of which is contractually deemed an act of trespass. The rules and regulations imposed upon paying visitors, not otherwise authorized to be on the premises, include the following, to-wit:
a. Admission is strictly for non-commercial purposes.
b. No fire-arms of any kind may be used on the property.
c. All vehicles entering the property do so with the express agreement on the part of the occupants to permit inspection of said vehicle by the company for improper contents before leaving.
d. The company reserves the right to refuse admission to any person it sees fit.
e. Violation of the above rules shall be considered an act of trespass.
3 — E.
“Other than a game warden, resident of Avery Island, Inc., who enforces game regulations, and the occasional use of a radar gun for the enforcement of speeding regulations, the toll gate and guard or gate keeper maintained and employed by Avery Island, Inc. constitute the only means by which Avery Island, Inc. attempts enforcement of its rules and regulations.
3-F.
“At the time the defendant, Gilman Bra-quet, Jr., was admitted to Avery Island by the defendant guard, he had no authorized purpose for being on the premises; he had no personal identification authorizing him to enter; he had not displayed upon his vehicle the decal identification sticker authorizing his vehicle to enter the premises; he was not entering Avery Island for any touristic purposes; he was otherwise not known to the defendant guard; he was not an employee of International Salt Company, the Mcllhenny Company, Avery Island, Inc., nor was he authorized or expected as a guest or business associate of any other person authorized to be on the premises.
3-G.
“The defendant, Gilman Braquet, Jr., at the time that he was admitted to Avery Island by the defendant guard, was highly intoxicated, having a blood alcohol level greatly in excess of .10 grams percent (.10g%). The defendant, Braquet, was also visibly intoxicated and visibly agitated.
3-H.
“The defendant guard, as well as being a direct employee of Avery Island, Inc., was supervised by officers and employees of both Avery Isalnd, (sic) Inc. and the Mcll-henny Company; he should therefore be considered under the law as the joint employee of Avery Island, Inc. and the Mcll-henny Company, or alternatively, the direct employee of both.
* * * * * *
5.
“Petitioner avers that Mayo Romero, Sr., the defendant guard, was guilty of negligence in not refusing admission to the defendant Braquet who was not authorized to secure entry upon the property of the defendant owner or in failing to turn back the defendant Braquet before he could inflict damages to the persons or properties of others who were, in fact, authorized to be on the grounds of the defendant owner; the defendant Romero was further negligent in not inquiring in more detail, as to his job requirements and his duties before undertaking the task for which he accepted employment; further, the defendant Romero failed to adequately inform himself as to Braquet’s purpose for entering onto the defendant lessee’s and defendant sublessee’s property.
6.
“Petitioner further shows that the defendant guard, Mayo Romero, Sr., failed in his obligation to his employer, his employ er’s lessor and his fellow employees; that if he had performed those duties for which he was employed, the defendant, Braquet, would not have been allowed to enter onto the property of Avery Island, Inc. to commit an unlawful act; particularly, but not exclusively, the defendant guard:
a. Failed to protect the premises and to protect persons lawfully upon or authorized to be upon the property.
b. Failed to control the entry of unauthorized people.
c. Failed to adequately inspect the personal identification of the defendant, Braquet.
d. Failed to adequately inspect the vehicular identification on the vehicle of the defendant, Braquet.
e. Failed to keep out a trespasser.
f. Failed to prevent interference with the normal business activities of Avery Island, Inc., the Mcllhenny Company, or the International Salt Company by a trespasser.
g. Failed to prevent the entry of a visibly or highly intoxicated person.
h. Failed to perceive or chose to ignore the obvious danger to the employees of International Salt Company and others by allowing a visibly intoxicated person on the premises.
i. Failed to perceive or chose to ignore the intoxicated condition of Braquet.
j. Failed to do or performed other acts of negligence which will be proved at the trial of this cause on the merits.
* * * * * *
6-B.
“Avery Island, Inc. leases a portion of the premises known as Avery Island to International Salt Company for industrial purposes, particularly, but not exclusively, for the mining of salt. Under the law and under the terms of the lease between the parties, Avery Island, Inc. was required to and responsible to maintain the leased premises in a condition fit for the use intended and to keep the sub-lessee in peaceable possession thereof. Avery Island, Inc. undertook to comply with that obligation by imposing and enforcing the rules and regulations hereinabove described. The failure to provide to International Salt Company and its employee Reginald Kane, premises free from the intrusion and interference (sic) by any unauthorized persons was the cause of the dangerous condition which resulted in plaintiff’s injury.
7.
“Petitioner further shows that the defendant owner, Avery Island, Inc., additionally contributed to the incident here sued upon by its:
a. Failure to properly educate its guard or gate keeper.
b. Failure to adequately train its guard or gate keeper in his duties to protect the premises and the persons on the premises.
c. Failure to require adequate identification of people and/or automobiles entering the premises.
d. Failure to enforce its rules and regulations with regard to proper identification of people and automobiles enter— (sic) its premises.
e. Failure to provide to its guard a means for confirming the identification of people entering the premises.
f. Failure to provide to its guard an adequate description or list of persons authorized to enter the premises.
g. Failure to provide an adequate number of guards and guard locations.
h. Failure to generally protect the premises from intrusion by unauthorized persons.
i. Failure to prevent or require prevention of the entry of intoxicated persons on the premises.
j. Failure to enforce its reasonable rules and regulations with regard to access, ingress and egress to Avery Island, Inc.
k. Failure to perform other acts or performing other acts which contributed to the occurrence of the incident here sued upon, all of which will be proved at the trial of this cause on the merits.

7-A.

“Alternatively, petitioner shows that the defendants, Avery Island, Inc. and the Mcllhenny Company, are strictly liable to the petitioner for the damages caused to him by the creation of an unreasonable risk of harm to petitioner by the defendant, Mayo Romero, Sr., in as much as Mayo Romero, Sr. is a person for whom Avery Island, Inc. and the Mcllhenny Company are answerable and legally responsible, separate and apart from any direct negligence by Avery Island, Inc. or the Mcllhenny Company.

7-B.

“Petitioner shows that the defendant Romero failed in his obligation to his employer, his employer’s lessee and sublessee and your petitioner, who had every reason to believe that an unauthorized person would not be allowed on the defendant owner’s property to commit an unlawful act.

8.

“The defendant owner should have had qualified security personnel or should have employed a supervisor to review the actions of their security personnel; certain rules should have issued or certain standards should have been fixed by the defendant owner for its security personnel so as to have an operating procedure to follow when an unauthorized vehicle or an unidentified person attempted to enter onto their property.’’

Generally speaking, it appears that the plaintiff contends his injuries resulted from negligence of Romero in failing to determine that Braquet had no authority to be on Avery Island and admitting him when he was an obvious danger to the plaintiff and other employees of International by reason of his intoxicated and agitated condition. The liability of Avery and Mcllhen-ny is allegedly based on respondeat superior as the joint or direct employers of Romero. In addition, Avery is alleged to have been independently negligent in failing to enforce its rules and regulations against unauthorized persons being on the island and its inadequate training and supervision of its gate keeper as to his duties in this respect. The adoption and enforcement of such rules were allegedly undertaken by Avery in compliance with its obligations under law and its lease to International to maintain the premises in a condition fit for their intended use and in peaceable possession of International.

In consideration of an exception of no cause of action, of course, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand it must be overruled. The court should maintain a petition and afford the litigant an opportunity to present his evidence when it can reasonably do so. The exception cannot be sustained unless the allegations of the petition exclude every reasonable hypothesis of fact other than those showing the plaintiff cannot recover as a matter of law; that is, unless plaintiff has no cause of action under any evidence admissible under the allegations of the petition. Haskins v. Clary, 346 So.2d 193 (La.1977).

Considering these allegations most favorably toward the plaintiff, we are unable to conclude that the evidence admissible thereunder would establish a cause of action against the exceptors.

Under the prevailing duty-risk formula of tort liability, for the plaintiff to establish a cause of action against a defendant, the initial question that must be determined is whether there is a causal relation between his act or omission and the resulting injury to the plaintiff. If so, then it must be determined whether there is a’ duty on the part of the defendant to protect the plaintiff from the type of harm he suffered, and finally, whether there has been a breach of that duty. Owens v. New Orleans Maintenance, Inc., 349 So.2d 494 (La.App. 4 Cir. 1977).

As in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), where the plaintiff tripped over a ladder left by the defendant in an upright position on the premises but laid subsequently on the ground by a third person, if Romero had not permitted Braquet to pass through the gate onto the island the shooting would not have occurred. Therefore, it may be said that this had something to do with the harm. However, we are convinced that Romero’s actions were not a substantial factor in causing the shooting.

Like the Supreme Court in Frank v. Pitre, 353 So.2d 1293 (La.1978), where a sheriff was exonerated from liability to a policeman who had been shot in a barroom by a prisoner that had been released from jail on a weekend pass, if it was negligence for Romero to admit Braquet to Avery Island under the circumstances alleged in this case we do not believe such act sufficiently contributed to the plaintiff’s injury to create liability on the part of the exceptors. Also, see DuCote v. Voorhies, 350 So.2d 1289, 1292 (La.App. 3 Cir. 1977) wherein this court said:

“In order for the negligent conduct to be a cause in fact of plaintiff’s harm, it must be shown to be a substantial factor in causing plaintiff’s injury. Some direct relationship is required between the negligent conduct complained of and the resulting injury. The negligent conduct must be a necessary ingredient of the resulting injury. The injury must be the natural, probable and foreseeable consequence of the negligent conduct. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); Jones v. Robbins, 289 So.2d 104 (La.1974).”

The mere fact that a person is intoxicated or agitated is no indication that he is going to shoot another person.

We are also convinced that there was no duty on the part of exceptors under these circumstances to protect the plaintiff from the type of harm which he suffered. Although Avery did install a gate keeper and attempted to maintain some control over the entry of persons on the island, there is no indication that it did so or that its rules and regulations were adopted for the benefit of International or its employees. On the other hand, we believe that such action was taken for its own benefit and it neither expressly nor impliedly agreed to protect International or its employees from any harm from third persons and particularly from harm resulting from their criminal conduct.

For these reasons, the judgment of the trial court sustaining the peremptory exception of no cause of action filed by Mayo Romero, Sr., Mcllhenny Company and Avery Island, Inc. and dismissing this suit as to these defendants is affirmed. The costs of this appeal are assessed to the appellant.

AFFIRMED.