text:
    Michael P. MICHOT v. DEPARTMENT OF POLICE.
    No. 9429.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Ellis J. Pailet, New Orleans, for Michael P. Michot, appellant.
    Michael A. Starks, Asst. City Atty., for Department of Police, appellee.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

A New Orleans Police Officer, Michael P. Michot, appeals from a decision of the Civil Service Commission of the City of New Orleans upholding his suspension and subsequent dismissal from duty ordered by the Superintendent of Police.

The facts show that Michot had been a New Orleans Police Officer for some eight years when he sustained a back injury while effecting an on-duty arrest on October 18, 1976. He was seen at Charity Hospital from whence he obtained a diagnosis of lumbo-sacral strain and was classified as injured on duty by the Police Department. For two months thereafter he saw no doctors nor received medical attention, until he consulted Dr. D. S. Condie, the physician for the police department on December 17, 1976. Dr. Condie afforded him physical therapy in the form of ultra-sound treatments, together with medicine for the relief of pain, seeing him several times up to January 7, 1977. On that date, a Friday, Dr. Condie ordered him to return to duty the following Monday, and Michot failed to return to work. There is a dispute as to what the doctor’s instructions were on that date, but the facts show that Michot never returned to Dr. Condie, or any other physician for treatment, and never returned to work until after he was ordered to do so on March 9th. He returned to work the next day, and a departmental investigation followed to determine the cause of his long absence.

As a result of the investigation, he was charged with untruthfulness and disobedience of orders, resulting in first his suspension and then subsequent discharge from the department. Appeal to the Civil Service Commission and to this court followed.

As noted by the Civil Service Commission, there is a serious dispute as to some of the facts surrounding this officer’s case. Michot contends that he was in severe pain and could not return to work during the period in question. He further contends that on January 7th the doctor only informed him that he should attempt to return to work if he felt up to it, and that his back pained him so badly he felt he could not return. He explained his lack of attendance from January 7th at Condie’s office as being due to the fact that his back pained him so much in making the trip that he felt it was contraproductive to his cure and that he suffered an attack of the flu towards the end of the period.

It is contended on this appeal that the appointing authority has not borne the burden of proving the charges of untruthfulness and disobedience of orders against him. The solution to this issue is based upon the credibility of the witnesses who appeared and testified. The Commission found that Michot’s story was not credible and believed the testimony of Dr. Condie and other witnesses, the effect of which was that Dr. Condie had indeed told Michot to return to work in January, and that Michot concealed this fact from other officers who made inquiry as to his status. Unquestionably, the records involving this man were poorly handled, and indeed were apparently handled in violation of regulations. Notwithstanding this the record discloses sufficient support for the findings of fact and conclusions drawn by the Civil Service Commission in upholding the dismissal. We find no manifest error and we agree with those findings.

The judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Warren J. ROBERTS v. TENNECO, INC., Tenneco Oil Company, Tennessee Gas Transmission Company, Delta Field Erection, Inc., The Travelers Insurance Company and Liberty Mutual Insurance Company.
    No. 9465.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Donald 0. Collins of Jones, Walker, Waech-ter, Poitevent, Carrere & Denegre, New Orleans, for Liberty Mut. Ins. Co., defendant-appellee.
    Yal A. Sehaff, III, Schaff & Currier, New Orleans, for Warren J. Roberts, plaintiff-appellant.
    Michael D. Meyer, Leach, Paysse & Baldwin, New Orleans, for Travelers Ins. Co., defendant-appellee.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Warren J. Roberts, alleging an injury at work, sued his employer and a number of other defendants in tort. Various defendants filed exceptions and four of the exceptions, primarily no cause of action and prescription, were maintained. Plaintiff’s suit was dismissed against those exceptors. He appeals.

Plaintiff filed suit on November 10, 1975 against Tenneco, Inc., Delta Field Erection, The Travelers Insurance Company, and Liberty Mutual Insurance Company, alleging that he was injured in the course of his employment for defendant Delta on the property of defendant Tenneco on December 6, 1974, when he was struck across his lower back and both legs by a boom of a crane owned by Tenneco and operated by Delta employees laying pipes under a contract with Tenneco. Thereafter, plaintiff filed five supplemental and amending petitions over a period of a year and a half, culminating with the fifth supplemental and amending petition filed on March 18, 1977. In these petitions he not only alleged additional facts concerning the general issue but also included as parties defendant a number of executive officers and employees of the corporate defendants. Exceptions were filed by various defendants, and the trial court maintained four exceptions rendering a separate judgment on each one. We consider each one in turn.

EXCEPTION OF NO CAUSE OF ACTION UNDER ACT 147 OF 1976 (R.S. 23:1032 and 23:1101)

The Travelers Insurance Company is alleged to be the insurer of defendant Ten-neco and its officials and employees. It filed an exception of no right or cause of action contending that Act No. 147 of 1976, amending R.S. 23:1032 and 23:1101, prohibits the filing of suit against the executive officers and other fellow employees because the injured employee’s exclusive remedy is benefits under the Workmen’s Compensation Act. It contends that although the date of the accident occurred prior to the passage of Act 147, the act is remedial in nature and must be given retroactive effect; thus it reasons that plaintiff has no right to pursue a tort action against it as liability insurer of the executive officers. The trial judge agreed, maintaining the exception.

Some time after the judgment was rendered by the trial judge, we considered precisely such a proposition in the case of Green v. Liberty Mutual Insurance Company, 352 So.2d 366 (La.App. 4th Cir. 1977, Writ refused January 30, 1978). In that case we discussed the applicable law and held that the law had no retroactive effect. We are controlled here by the same principles and we conclude that the trial judge erred in maintaining the exception. We also refer to the case of Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3rd Cir. 1978) approving our holding in Green.

Accordingly, the judgment maintaining this exception is reversed and the exception is now overruled.

PEREMPTORY EXCEPTION OF PRESCRIPTION

There exists considerable confusion amongst the parties to this appeal as to which parties defendant have filed this exception of prescription. This apparently arises out of the fact that there were oral exceptions urged at the time of trial. In any event, the only exception in this record is the peremptory exception of prescription filed by The Travelers Insurance Company alleging that the cause of action occurred on December 6, 1974, while the executive officers of Tenneco and their alleged liability insurer, The Travelers Insurance Company, were not named as defendants until March 21, 1977. Travelers therefore urges the prescription of one year as provided in Civil Code Article 3536. The trial court rendered judgment “on the motion of Travelers Insurance Company, on their exception of no cause of action based upon prescription” maintaining the exception and dismissing plaintiff’s suit. We therefore consider only that exception.

The situation is this. Plaintiff filed a tort suit on November 10, 1975 based upon injury suffered December 6, 1974. In that petition he sued Tenneco, Inc., Tenneco Oil Company and Tennessee Gas Transmission Company along with The Travelers Insurance Company as their insurer. He also sued his employer, Delta Field Erection Company, Inc. and its insurer, Liberty Mutual Insurance Company. In that petition plaintiff alleged that he was working for Delta on the property of the Tenneco defendants when he was struck by the boom of a crane owned by Tenneco and operated by Delta. He alleged that the cables of the boom were defective and that the condition was known to “defendant Tenneco, as well as the executive officers, managers, and/or foremen of defendant Delta”. Plaintiff alleged “that The Travelers Insurance Company issued a policy of liability insurance to defendant Tenneco covering its officers, managers and/or employees for negligence,” but he did not make any of those officers, etc. parties defendant. Tenneco’s negligence was alleged to be knowingly permitting defective cables to be used in the operation of its equipment, inviting and offering for use equipment in defective, dangerous and weakened condition, and failing to warn persons using the equipment of its dangerous, weakened and defective condition. The petition prayed for judgment jointly, severally and in solido against the defendants, particularly the Tenneco group and The Travelers Insurance Company.

The plaintiff then amended his petition four times, all of the amendments having to do with Delta and its executive officers, etc., except that in the fourth supplemental and amended petition plaintiff amended the negligence of Tenneco to add permitting use of the equipment of inadequate design and structure for the job. It was not until the fifth supplemental and amended petition filed on March 21, 1977 that plaintiff expanded and particularized the negligence of the Tenneco personnel and named a number of executive officers and employees as parties defendant.

On this appeal a number of arguments have been presented to us concerning the posture of the various defendants, and the manner in which the rules concerning prescription may apply in each case. However, we do not propose to discuss the merits or demerits of the judgment appealed from as it applies to any of those other parties. We have set out above the only matter before us, that is, the exception of The Travelers Insurance Company as insurer of the executive officers of Tenneco. We confine our review only to that exception and the judgment rendered thereon.

We refer to the petition which we have detailed in some pertinent degree above, and we particularly refer to Article VI of the original petition which we quote:

“Plaintiff is informed and believes that The Travelers Insurance Company issued a policy of liability insurance to defendant Tenneco covering its officers, managers and/or employees for negligence and that such policy was in full force and effect on or about December 6, 1974.”

The only allegation as to Travelers’ liability in that petition is Article VI, which, when considered with the other allegations are sufficient to have brought Travelers into this suit, for the purposes of this exception. LSA-R.S. 22:655 grants to injured persons in Louisiana the right of direct action against the insurer within the terms and limits of the policy, and such action may be brought against the insurer alone. While the petition may be subject to other exceptions and contains some vague and general allegations, nevertheless the only allegations of policy coverage of The Travelers Insurance Company is the described policy covering Tenneco’s officers, etc. For the purposes of this particular exception, it is irrelevant to consider the effect of the fifth supplemental and amended petition which brought in the Tenneco officials, etc. by name and particularized the negligent acts alleged to have occurred.

Finding that the petition was filed within one year of the accident, we conclude that the trial judge erred in maintaining the plea of prescription as to The Travelers Insurance Company, and we reverse that judgment, overruling the exception of prescription.

EXCEPTIONS OF NO CAUSE OF ACTION BASED ON DISMISSAL OF JOINT TORT FEASOR

The Travelers Insurance Company and Tenneco, Inc. filed exceptions of no cause of action based upon the dismissal by plaintiff of a joint tort-feasor, Delta Field Erection, Inc., from the suit without the reservation of plaintiff’s right to proceed against the other joint tort-feasors. The same exception was filed by Liberty Mutual Insurance Company and Tenneco Oil Company. The court maintained the exceptions in two separate judgments and dismissed plaintiff’s suit.

The situation pertinent to these exceptions is as follows: The original petition was a tort suit against these exceptors and Delta Field Erection, Inc., seeking damages for personal injury. The petitioner alleged that he was injured while in the course of employment for defendant Delta, and alleged the negligence of the personnel of all of the defendants as having caused his injuries. He prayed for judgment against the defendants jointly, severally and in solido. Thereafter several pleadings were filed, but on March 26, 1976, plaintiff filed his third supplemental and amending petition, amending “by deleting sub-paragraph 1(B) in the original petition and in any and all subsequent amending petitions.” This amendment deleted Delta Field Erection as a party defendant.

The issue is now made that the defendants were all made parties in solido and were solidary co-debtors. Therefore excep-tors urge that the release of one of the solidary co-debtors without reservation is a release of all of them. They rely on the provisions of Civil Code Article 2203 which states:

“Art. 2203. The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
“In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.”

Exceptors contend that this article has been frequently interpreted by our courts as requiring discharge of all solidary obligors and refer to the cases of Written v. Travelers Indemnity Company, 304 So.2d 715 (La. App. 3rd Cir. 1974); Clay v. State Farm Mutual Auto Insurance Company, 330 So.2d 380 (La.App. 3rd Cir. 1976); Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir. 1977); Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964); Dodge v. Central Louisiana Electric Company, 257 So.2d 802 (La.App. 3rd Cir. 1972).

We would distinguish the factual and procedural situation in this case from those cited to us. In our case the plaintiff has not entered into a compromise or settlement with the defendant Delta, but has simply dismissed it from the suit without prejudice. We consider that our situation is controlled by the rationale in the case of Mullin v. Skains, 252 La. 1009, 215 So.2d 643 (1968) quoted at 215 So.2d 645:

“***** However, in the case at bar there was no compromise agreement amongst the joint tort-feasors, nor a release by plaintiff with either of the joint tort-feasors. Plaintiffs’ suits were simply dismissed against Mr. Skains by voluntary nonsuit.
“[2,3] While it is well recognized that joint tort-feasors are solidarily liable and plaintiff may elect to sue any one of them, in order to provide a substantive right to contribution between joint tort-feasors the legislature amended Civil Code Article 2103 in 1960 to allow a tort-feasor to enforce contribution against a co-tort-feasor by the use of the third party demand even if the latter was not sued by the plaintiff; and, this court in Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594, recognized that the 1960 amendment incorporated the procedure of Articles 1111 through 1116 of the Code of Civil Procedure into 2103 and held the defendant who does not call in his co-debtor as a third-party defendant may subsequently maintain the right to enforce contribution as set forth in the related articles.”

We note that the pleadings contain the obvious reason for the dismissal, that is, the factual allegations that plaintiff was employed by Delta and was working in the scope and course of his employment. Accordingly, the plaintiff could not maintain a tort against his employer but must seek workmen’s compensation benefits only. R.S. 23:1032. Not being liable in tort as a matter of law, Delta could not be a solidary co-debtor of exceptors.

Accordingly, we hold that the voluntary dismissal of the employer from a tort suit does not come within the rule of Civil Code Article 2203 but is simply the recognition of the plaintiff’s inability to recover from the employer as a matter of law, and such a dismissal can in no way prejudice the rights of the other defendants. We conclude that the trial judge erred in maintaining the exception and dismissing the suit against exceptors, and we reverse his judgment, rendering judgment in favor of plaintiff, overruling the exceptions of no cause of action.

This matter is remanded to the trial court for such further proceedings as may be appropriate consistent with the rulings herein.

REVERSED AND REMANDED.

      . Named were Tenneco, Inc., Tenneco Oil Company and Tennessee Gas Transmission Company, all alleged to be the same corporation.


text:
    Inez LONZO, widow of Ray Field Lonzo et al. v. HOLSUM BAKERIES, INC., et al.
    No. 9550.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    E. John Litchfield, O’Keefe, O’Keefe & Berrigan, New Orleans, for Inez Lonzo, plaintiff-appellant.
    Stewart E. Niles, Jr., of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Holsum Bakeries, Inc. and Travelers Ins. Co., defendants-appellees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Inez Lonzo filed suit against Holsum Bakeries and its insurer, The Travelers Insurance Company, for workmen’s compensation benefits for the death of her husband, a former employee of the bakery. The trial court rendered judgment in favor of the defendants, and she appeals.

The facts are these: On January 29,1970, Mr. Lonzo was in the process of performing his job when he suddenly received a blow of some sort to his upper body. It is disputed whether this blow was to his chest or to his arm and shoulder. He immediately reported this injury to the supervisor and consulted the company doctor shortly afterward. The doctor was of the opinion that the injury was musculoskeletal in nature. Mr. Lonzo then returned to work.

On February 20th, 1970, Mr. Lonzo returned to the doctor’s office and complained that in the middle of the previous night he woke up with chest discomfort. This was diagnosed as having been caused by aortic insufficiency, a disease of the heart caused by a faulty valve. Mr. Lonzo eventually underwent three heart operations between March 6, 1970 and August 14, 1970, on which date he died.

Appellant contends that the trial judge committed error in rendering judgment in favor of the defendants. She argues that there was “an accident” here within the meaning of the Workmen’s Compensation Statutes, and that there was a causal relationship present between the job related accident and Mr. Lonzo’s eventual death. Appellee, on the other hand, contends that the evidence supports the trial judge’s finding that the incident of January 29th was not sufficiently connected to the death to allow recovery under Workmen’s Compensation.

To qualify as an accident under the Workmen’s Compensation Statutes, it is necessary only that the injury be unexpected and unforeseen, that it happened suddenly, and that it produced objective symptoms of injury. Louisiana Revised Statute 23:1021; Ferguson v. H. D. E., Inc., 270 So.2d 867 (La.1972). Heart problems have often been treated as “accidents” under the statute. Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1968); and Vicknair v. Avondale Shipyards, Inc., 220 So.2d 580 (La.App. 4th Cir. 1969).

The major issue in this case, however, focuses on the causal relationship between the accident and the death. It is well settled that disability or death benefits are payable only if the disability or death results from a work related accident. This question is generally one of fact, not law. Roussel v. Colonial Sugar Company, 318 So.2d 37 (La.1975); Jacob v. Godchaux-Henderson Company, Inc., 350 So.2d 274 (La. App. 4th Cir. 1977). The mere development of a heart condition while employed, how ever, does not render the employer liable for workmen’s compensation benefits. Beckham v. City of New Orleans, 327 So.2d 460 (La.App. 4th Cir. 1976).

Recovery of benefits for a heart attack must be conditioned on a connection or nexus between the work and the injury. The attack must, in other words, have some “identifiable beginning at work”. Soileau v. Chet & Kenney’s Auto Parts, Inc., 337 So.2d 604 (La.App. 4th Cir. 1976). Here the appellant has the problem of proving that the accident was in any way connected with the death, and, therefore, that the death was work related. Appellant relies upon the accident in question to serve as the required nexus.

The trial judge found that there was no connection between the accident and the attack. We agree. The heart problems in this case did not occur on the job, as was the case in Roussel, supra, and many of the other cases cited by appellant. Furthermore, the only medical testimony linking the decedent’s heart problems to the accident was from a physician who never treated or even saw Mr. Lonzo. His opinion was based on a hypothesis that the decedent suffered a blow to his chest. However the preponderance of evidence shows a blow to decedent’s arm, without involvement of the chest. The trial judge was correct in finding that this testimony was far outweighed by the opinions of the two treating physicians, who testified that the accident was not related to the heart problems.

Appellant further contends that proof of an accident and the following disability, without an intervening cause, creates a presumption that the accident caused the disability. Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974); St. Pe v. H. P. Foley Electric Company, 341 So.2d 639 (La.App. 4th Cir. 1977). The Louisiana Supreme Court, however, has recently held that this presumption is not irrebuttable, but its effect is to shift the burden to the defendant to negate the causal connection. Haughton v. Fireman’s Fund American Insurance Company, 355 So.2d 927 (La.1978). We find that the trial judge’s decision that appellee has met its burden of proof is amply supported by the record.

For all of the foregoing reasons, the judgment of the trial court dismissing plaintiff’s claim is affirmed.

AFFIRMED.


text:
    Pamela M. CHANCELLOR, wife of/and William L. Chancellor v. SCHWEGMANN BROS. GIANT SUPER MARKETS, INC.
    No. 9589.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Garland R. Rolling, Metairie, for Pamela M. Chancellor and William L. Chancellor, plaintiffs-appellants.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, C. T. Williams, Jr., New Orleans, for Schwegmann Bros. Giant Super Markets, Inc., defendants-appellees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This appeal is concerned solely with the workman’s compensation portion of a case arising from injuries suffered by Mrs. Pamela M. Chancellor in a pedestrian-automobile accident. The accident occurred after work on a public highway and the basic issue is whether the accident arose out of and in the course of Mrs. Chancellor's employment, particularly as to the application of the threshold doctrine to the facts of this case. Mrs. Chancellor appeals from a judgment dismissing her claim against her employer, Schwegmann Bros. Giant Super Markets, Inc.

The facts are stipulated. Mrs. Chancellor was employed at one of defendants’ stores on the Airline Highway in Jefferson Parish near its intersection with North Howard Avenue. She had finished work and punched out at 6:39 P.M. and left the store with the intention of returning home. She travelled by public transit and was attempting to cross the Airline Highway to the other side in order to catch the bus at the intersection. The traffic is controlled by traffic lights which Mrs. Chancellor concluded were not working properly. She had successfully crossed one side of the highway, and as she attempted to cross the other side, she was hurrying because of the non-functioning of the light and was struck by an automobile. Schwegmann’s does not provide transportation to or from work for its employees.

The appellant contends that although she had finished work, the fact that the accident site was sufficiently adjacent to Schwegmann’s premises, coupled with the hazard of the highway to which she was regularly subjected, calls for the application of the threshold doctrine. We disagree and affirm the judgment appealed from.

One of the elements an employee must prove in securing coverage of the benefits of the Workmen’s Compensation Law is that the injury was received “by accident arising out of and in the course of his employment”. LSA-R.S. 23:1031. Numerous cases have held that the coverage of the law does not apply to an employee who is simply going to work or returning from work. One of the exceptions to that rule is the threshold or proximity rule as recognized and established in the case of Templet v. Intracoastal Truck Line, Inc., 255 La. 193, 230 So.2d 74 (La.1969). The court noted that this rule was applied in the case of Walker v. Lykes Bros.-Ripley S.S. Company (La.App.Orl.1936), 166 So. 624, and quoted with approval the following language from that case:

“Furthermore, the application of the exception to the general rule is without pertinence, unless the location of the master’s premises is such that, contiguous thereto, there are hazards which the plaintiff necessarily encounters in going to or departing from work which peculiarly subject him, by reason of his employment, to greater risks than those to which the general public is exposed." * * (230 So.2d 79)

The court also noted that the rule was correctly stated by Professor Wex Malone in his work “Louisiana Workmen’s Compensation Law and Practise”. In considering these rules we additionally refer to the cases of Fife v. Allied Super Markets, Inc., 284 So.2d 561 (La.App. 3rd Cir. 1973) and Verret v. Travelers Insurance Company, 166 So.2d 292 (La.App. 1st Cir. 1964).

Considering the facts in this case we cannot find that the employee faced any unusual, peculiar or greater hazard than the general public encountered. While it may be said that the crossing of a major thoroughfare such as the Airline Highway exposes one to a special risk that an individual would not encounter in crossing a less important and less used thoroughfare, there is no evidence in this case to show that the situs of the accident has any particular dangers not encountered in other portions of the highway or comparable thoroughfares. We agree with the findings of the trial court.

The judgment is affirmed at appellant’s costs.

AFFIRMED.


author: SCHOTT, Judge.

text:
    WINSTON NETWORK, INC. v. TAC AMUSEMENT COMPANY.
    No. 9379.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.

      Lawrence L. Lagarde, Jr., New Orleans, for defendant-appellant.
    Robert E. Birtel, New Orleans, for plaintiff-appellee.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff, a judgment creditor of George P. Mandella, made a seizure on September 15, 1975, of Topaz Lounge 123, operated by him in New Orleans. While the seizure was in effect plaintiff’s counsel was contacted by Dickie Lyons, an employee of defendant. Thereafter the seizure of Mandella’s lounge was called off, and on October 8, 1975, defendant paid plaintiff $500 on account of Mandella’s debt.

Plaintiff brought this suit for the balance of Mandella’s debt ($1021.25 plus interest, attorney’s fees and costs). According to plaintiff, Lyons had agreed that if the seizure were called off defendant would pay half of the debt immediately and the rest within ten days.

Defendant denied that the agreement was made by Lyons and denied his authority to bind the company in any event. Defendant also took the position that plaintiff’s suit was one to enforce the promise by defendant to pay the debt of a third person (Mandella), which was not susceptible to proof by parol evidence under LSA-C.C. Art. 2278, after a trial judgment was rendered in favor of plaintiff as prayed for.

The trial judge gave no reasons for judgment initially, but in denying defendant’s application for a new trial he stated that Art. 2278 was inapplicable to the facts of this case, quoting from Fuselier v. Hudson, 93 So.2d 266 (La.App. 1st Cir. 1957):

“. . . where the promisor has a material interest in making the promise, and receives consideration therefor. In such an instance the promisor binds himself to pay the debt, making his own obligation the primary obligation. Coreil v. Vidrine, 188 La. 343, 177 So. 233; Collier v. Brown, 19 La.App. 567, 141 So. 405; Wallenburg v. Kerry, 16 La.App. 221, 133 So. 823.”

On appeal defendant contends that Art. 2278 applies here and disputes the trial court’s finding that it had a material interest in promising to pay Mandella’s debt. It also contends that Lyons’ promise was not binding on it because he had no authority to make the contract.

On the first issue it was established that defendant was rather deeply involved in Mandella’s business. It had placed its coin machines in the various locations where Mandella operated lounges with the understanding that Mandella would receive commissions from the proceeds of the machines. Some of Mandella’s loans, as well as the lease on one of Mandella’s locations, were guaranteed by defendant. The exact amount of such loans outstanding at the time of plaintiff’s seizure was not established, but between April, 1975, and the date of the seizure defendant had paid either to Mandella or his creditors the sum of $7334, and by May, 1977, just before trial this amount had grown to $46,172. Significantly, Mandella was discharged in bankruptcy in April, 1976, on his petition filed in December, 1975. Most of the payments defendant made on the loans to Mandella were subsequent to the institution of his bankruptcy proceedings. These facts and reasonable inferences therefrom liken the case to Wallenburg v. Kerry, 16 La.App. 221, 133 So. 823 (2nd Cir. 1931), in which the court found the provisions of Art. 2278 inapplicable with the following:

“The weight of authority interpreting statutes of this kind is to this effect: That, if the agreement to pay the obligation of a third person is merely a collateral undertaking, it comes within the statute of frauds; but, if such agreement is independent, not made primarily to answer for another, but is impelled from pecuniary or business motives, accruing to the promisor, then it does not fall within the statute, and parol testimony is admissible to establish same.”

Also, the arrangement defendant had with Mandella by which his loans were being paid out of defendant’s machines likens the case to Fabacher v. Crampes, 166 La. 397, 117 So. 439 (1928) where the court held:

“. . . the prohibition against the admission of parol evidence to prove a promise to pay the debt of another, does not apply (1) when the promise is made, upon adequate consideration, to the debt- or himself, or (2) when the promise, even though made to the creditor, is given with the consent of the debtor, and the promisor has in his hands, or afterwards receives, money or property belonging to the debtor, to be applied to the debt. For in both these eases it is an original and direct undertaking by the promisor towards the debtor himself, and not at all a collateral undertaking to pay the debt of another.”

From the foregoing we have concluded that the trial judge correctly dealt with the first issue of parol proof, and turn now to the issue of whether or not defendant was bound to the agreement made by Lyons.

Defendant is a partnership composed of John J. Elms, Jr. and his two sisters. Dick-ie Lyons was a public relations representative of the company. The only contact plaintiff had with defendant was through Lyons. According to Lyons he had authority from his supervisor and from Elms to pay the $500 but not to assume the entire balance. Elms testified that he told Lyons to see if it was possible to avoid a seizure of Mandella’s place by loaning him some more money, and he admitted authorizing Lyons to commit the $500.

As in Radiophone v. Oxford Bldg. Services, Inc., 347 So.2d 327 (La.App. 4th Cir. 1977), it seems clear that Lyons was not authorized by defendant to contract in its behalf, but:

“. . . The issue is whether plaintiff might reasonably have assumed from the circumstances that Richard had authority to act for the corporation or whether its representatives had the obligation to verify with the defendant the agency relationship before it could be bound.”

The court there decided the case for the plaintiff on the basis of C.C. Art. 3000, which provides:

“Powers granted to persons, who exercise a profession, or fulfill certain functions, or doing any business in the ordinary course of affairs to which they are devoted, need not be specified, but are inferred from the functions which these manda-taries exercise.”

However, the facts of that case were quite different. The person contracting for defendant was the manager of defendant’s facility at the airport and supervised 21 employees. The equipment sold was demonstrated at defendant’s office at the airport. The court held that it was not unreasonable for plaintiff’s representative to infer that she was dealing with a representative who was authorized to bind his company-

In Dart Distribution, Inc. v. Foti Enterprises, Inc., 271 So.2d 705 (La.App. 1st Cir. 1972), the court held a corporation liable for carpets purchased by its representative for his personal use. But the transaction had been preceded by numerous transactions in which the representative had made purchases for defendant. Thus, the case fell squarely under the aegis of Art. 3000, there being a logical inference of authority in the particular disputed transaction flowing from previous dealings between plaintiff and the agent.

There is no evidence that our plaintiff ever dealt with Lyons before the day of the seizure. There was no basis for plaintiff to think that Lyons had his employer’s authority to bind it to pay off another’s debt. The inference which plaintiff drew of Lyons’ authority was based solely upon Lyons’ statements to plaintiff’s attorney. Plaintiff makes much of a letter its attorney wrote to Lyons on the day after the seizure confirming that defendant would pay Mandella’s debt, but there is no evidence that anyone other than Lyons ever saw the letter. There is no evidence that Elms or any other authorized agent of defendant did or said anything which would lead plaintiff to believe that Lyons was authorized to bind defendant.

In the final analysis, plaintiff’s only contact with defendant was through Lyons and it acted at its own peril when it failed to inquire into his authority to bind defendant.

Accordingly, the judgment appealed from is reversed and there is judgment in favor of defendant, TAC Amusement Company, and against plaintiff, Winston Network, Inc., dismissing its suit at its cost.

REVERSED AND RENDERED.

      . The debt amounted to $2155.79 but plaintiffs attorney testified that when he received $500 from defendant he thought this was close enough to half and he believed defendant was in good faith.


text:
    Levere C. MONTGOMERY, Jr. v. Glenn SNYDER et al.
    No. 9413.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.
    Tucker & Schonekas, Gibson Tucker, Jr., New Orleans, for defendant-appellant.
    Faris, Ellis, Cutrone, Gilmore & Lauten-schlaeger, Camille A. Cutrone, New Orleans, for plaintiffs-appellees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

In response to a partition suit defendant Glen Snyder filed exceptions of prematurity and no cause of action contending that the immovable property sought to be partitioned was owned by a partnership consisting of himself, his co-defendant and plaintiff. His exceptions were overruled and in due course a judgment was taken against him on the merits. From this judgment Snyder has appealed.

The only issue raised on appeal relates to the initial exception of prematurity. Arguing that the immovable property belonged to a partnership, Snyder contends that the only action available to plaintiff was for a dissolution of the partnership. However, the record does not support this position.

This property was purchased in the name of a corporation in 1971 and on the same day the corporation executed a counter-letter in favor of the individual plaintiff and defendants, declaring that the property was owned by them in the proportions of one-third interest for each. In order for a partnership to own real estate the articles must be in writing and recorded in accordance with LSA-C.C. Art. 2836. There is no indication that such a partnership was ever established.

To support his position defendant placed in evidence some leases between a partnership composed of the three individuals and various tenants in the shopping center located on the property sought to be partitioned, but there is no evidence to show that this partnership ever owned the real estate or was ever the subject of written and recorded articles of partnership which would authorize it to own any real estate in accordance with the cited article.

It is clear that the real estate sought to be partitioned was owned by the three individuals as co-owners. The remedy of partition was available to plaintiff and defendant’s exceptions were properly overruled. The judgment appealed from is affirmed.

AFFIRMED.


text:
    Leopold C. MARQUEZ, Individually and as father and guardian of and for the Use and Benefit of his minor child, James A. Marquez v. CITY STORES COMPANY (Owners of Maison Blanche Stores), Travelers Insurance Companies and Commercial Union Insurance Companies, and Otis Elevator Company.
    No. 9430.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.

      Drury, Lozes & Curry, James H. Drury and Robert H. Wood, Jr., New Orleans, for defendants-appellees Otis Elevator and Commercial Union Ins.
    Ralph E. Orpys, Metairie, for plaintiff-ap-pellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald 0. Collins, New Orleans, for defendants-appellants City Stores Co. (Owners of Maison Blanche Stores) and Travelers Ins.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

This suit arose out of an accident which occurred on February 21, 1976, in which plaintiff’s three and one-half year old child, James, was injured while riding the escalator at the Maison Blanche store in the Lake Forest Plaza in New Orleans. Defendants were City Stores Company, the owner of the store, its insurer, Travelers Insurance Company, Otis Elevator Company, which had constructed the elevator and was under contract with Maison Blanche to maintain it, and its insurer, Commercial Union Insurance Companies. City Stores and Travelers filed a third-party demand against Otis and Commercial seeking indemnification. From a judgment in favor of plaintiff and against City Stores and Travelers, but dismissing the main demand of plaintiff as well as the third-party demand of City Stores and Travelers against Otis and Commercial, City Stores and Travelers have appealed. Plaintiff answered the appeal, seeking recovery against Otis and Commercial along with City Stores and Travelers.

We are favored with findings of fact by the trial judge which for the most part are supported by the evidence. He found that the plaintiff, his wife and their two minor children were on the escalator traveling from the second floor to the first floor prior to the accident. Plaintiff was standing ahead of his wife with his son on the same step to his left when the child’s left foot got caught in the space between the moving stair tread of the escalator and the side panel or skirt. The child was wearing soft rubber shoes at the time and the left shoe with a cut along the front side in the area of the great toe is in evidence and demonstrates how the child sustained the injury. While these findings are supported by the evidence, the trial judge also said the following:

“The father was asked to explain how this accident happened. He said he could not, that all he knew was that the child was not misbehaving and that they were just standing on the escalator, minding their own business. Suddenly, he was aware of the fact that the three and one-half year old’s left foot was caught in the side of the escalator. He picked the child up, saw the torn tennis shoe and blood. . . . ”

Plaintiff testified that as he was coming down the escalator it started “shaking like an earthquake” so he held on tightly to his son, and looking down he saw a flash of light underneath the escalator and that the escalator opened up as it vibrated. Then suddenly all of this unusual activity in the escalator discontinued and he discovered that his son was injured. He did say at one point that he saw the child’s foot between the side of the escalator and the steps.

Mrs. Marquez also testified that she felt the escalator shaking “like an earthquake” and upon reaching the next floor found that James had been injured.

Considering that the findings of the trial judge are silent as to the testimony of plaintiff and his wife that the escalator shook like an earthquake and that there was a flash of light under the steps of the escalator, it seems that he did not find this testimony convincing. The technical witnesses called by defendants during the course of the trial said it was impossible for the escalator to have shaken or for any light to appear under the steps. The escalator was routinely serviced a few days after this incident and there was no indication whatsoever of any defect in its operation which surely would have to have been obvious had the escalator malfunctioned in the manner plaintiff and his wife said it did.

The trial judge’s findings continue as follows:

“There are no safety switches or devices on this escalator to stop it in the event anything gets caught in its sides, except at the very top and bottom. This accident happened about midway up the escalator. Those safety switches are really there for the protection of the equipment itself as distinguished from the protection of the customers. The Otis Elevator expert could not explain why a ridge, a strip or a guard could not have been put on the stair tread to prevent soft rubber objects from getting into the open clearances. There is a sign at the bottom of the escalator (plaintiffs had not reached it yet) which warned against bare feet, etc. But there are no warnings against tennis shoes, soft rubber footwear, etc. Further, there is nothing at all in evidence to even suggest that there are any safety switches or other devices for the protection of customers using this escalator.”

The trial judge then concluded that plaintiff was entitled to a judgment against defendant, City Stores, and its insurer, but he dismissed the third-party demand by them against Otis and its insurer. He reasoned that City Stores relied in its third-party demand exclusively on the maintenance and service contract with Otis, but no negligence was shown in the performance by Otis of this contract. His findings continued:

“It is to be noted that City Stores did NOT sue Otis Elevator in a products liability suit. There is no issue before this Court in this case of faulty design or sale of unsafe equipment. If there was, this Court would have no trouble in finding this escalator to be defective in design and unsafe for customers’ use and indemnifying City Stores. But as previously indicated, no such issues have been pleaded or presented. City Stores has hung its hat on its service and maintenance contract with Otis and has alleged that Otis was a joint tortfeasor (alternately) because it did not properly service or maintain the escalator . . . .”

Considering first the question of the liability of City Stores to plaintiff, it is difficult to reconcile this conclusion with the findings of the trial judge. Otis constructed and installed the escalator in the store. The absence of safety switches or devices to stop the escalator in the event that an object gets caught, and the absence of a ridge, strip or guard to prevent soft rubber objects from getting caught in the open clearance between the stairs and the side panel tend to show that Otis, as installer, rather than City Stores was liable. The absence of a sign to warn against tennis shoes along with bare feet on the escalator is also of greater significance against Otis than against City Stores. There is no evidence to suggest that the absence of such safety switches or devices, ridge, strip or guard, or warnings created risks of harm which were reasonably foreseeable by City Stores. Furthermore, with respect to the safety switches or devices there is no evidence to show how they would have prevented this particular accident from occurring.

In Cannon v. Holmes, 274 So.2d 799 (La. App. 4th Cir. 1973), writ denied, 277 So.2d 677, this court considered the liability of the store owner for an injury sustained by a passenger on an escalator. We held that defendant was charged with a high degree of care but that the burden was on the plaintiff to prove negligence on the part of the defendant except in the situation where there was proof of an unusual occurrence or defect in the mechanism or operation of the escalator, in which case, the burden would shift to defendant to exculpate itself. We followed Vallette v. Maison Blanche Co., 29 So.2d 528 (La.App.Orl.1947). Having rejected the testimony, as we are certain the trial court did, that the escalator shook like an earthquake and there was a flash of light under the steps of the escalator, we have no factual basis for the application of the Vallette case to the instant case. We reach the same result as we did in the Cannon case, namely, that this accident could not have been anticipated by City Stores even with the exercise of all human care, vigilance and foresight reasonably suggested under the circumstances.

This case is readily distinguishable from Tarantino v. City Stores Co. (Maison Blanche Div.), 278 So.2d 149 (La.App. 4th Cir. 1973), writ den. 281 So.2d 741, in which the plaintiff recovered for injuries sustained by a three year old child who fell on a descending escalator and got her hand caught in the escalator’s tooth comb plate. Recovery was allowed in that case because an inference arose from the evidence that the accident occurred because of improper maintenance which made it possible for the tooth comb plate to become improperly aligned.

A more difficult issue in this case is the question of City Stores’ strict liability under LSA-C.C. Art. 2317, which provides as follows:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

In Loescher v. Parr, 324 So.2d 441 (La. 1975), the Supreme Court interpreted this article to provide a basis of strict liability on the owner of a defective thing independently of the “modifications” in Arts. 2318-2324.

In Leaber v. Jolley Elevator Corporation, 354 So.2d 746 (La.App. 4th Cir. 1978), writ denied, 356 So.2d 1010, we held that a building owner was liable for injuries caused by its defective elevator but we based our decision not only on Art. 2317 but also on Art. 2322, because the cause was a vice in the original construction of the building. In Adamson v. Westinghouse Electric Corporation, 236 So.2d 556 (La.App. 4th Cir. 1970), we found Art. 2322 applicable in the case where the cause of plaintiff’s injury was a defective electrical switch on an elevator, but the approach seems inconsistent with the decision of the Supreme Court in Davis v. Royal-Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1971).

Returning to Loescher v. Parr, supra, although strict liability was imposed upon the owner of a thing which caused damage one of the elements which the plaintiff had to prove in the case was the presence of a defect or vice in the thing through which the damage occurred. As to proof of this element, we do not find that our plaintiff carried his burden.

In order for an escalator to function there must be some point between the moving stairs and the stationary frame holding the stairs. The national standards for safe escalator construction provide that this opening may not exceed % of an inch, and in this case the opening was not more than 8/i6 of an inch. While the trial judge stated that it happened before that persons wearing tennis shoes, rain footwear or similar soft rubber shoes got caught in the opening, there is no evidence in the record that such ever happened before. There is evidence that seven months after the accident a piece of a tennis shoe got into this opening and caused the escalator to stop. This does not prove that the opening constituted a defect or vice in the escalator. We know only that plaintiff’s child somehow managed to get his shoe caught and ripped open in this very narrow space. We are inclined to the view that this accident was much in the nature of a freak accident as was plaintiff’s in Cannon v. Holmes, supra.

Pertinent to this discussion is Norberg v. Sears Roebuck & Co., 321 So.2d 795 (La. App. 4th Cir. 1975), in which plaintiff was denied recovery when his four year old son somehow managed to get his hand caught in the handrail guard of the escalator. The child had inserted his hand into a small one-quarter inch opening between the handrail and a guard placed around it. The court commented:

“Considering its location and physical condition, it is very improbable that anyone could accidentally get his hand caught in the opening through any normal or foreseeable use of the escalator.”

In that case the court specifically declined to apply Art. 2321 as interpreted in Holland v. Buckley, 305 So.2d 113 (La.1974). However, the court did not consider Art. 2317 or the Supreme Court’s interpretation of that article in Loescher v. Parr, supra.

We have concluded that to impose liability on City Stores in this case would be to make the store owner the insurer of the safety of its customers and to relieve the plaintiff of any burden of proof whatsoever beyond the occurrence of an accident on the escalator. In effect, we would have to hold that an escalator is an inherently dangerous instrument since it consists of moving parts which present the possibility, however remote, that some freak accident might occur. We simply do not find any basis in the jurisprudence for such a result. Even the Loescher case imposes on plaintiff some burden of proving that there was a defect or vice in the thing, i. e., the escalator belonging to defendant. We cannot conclude that the opening between the stairs and the frame in this case was a defect or vice, like the rotten inside of the tree in the Loescher case.

The trial court in his reason speculated that a ridge, strip or guard might have prevented the accident. Aside from the fact that there is no evidence as to how such a guard might be constructed it seems clear that there will necessarily remain some space between moving parts and a stationary frame, be it side panel, as in this case, or the edge of a ridge, strip or guard as suggested by the trial judge. Thus, even with these additions to the escalator a child might still find a means of getting his foot caught between the moving and the stationary parts.

We have therefore concluded City Stores and its insurer are not liable to plaintiff under either a tort or a strict liability theory-

The liability of Otis and its insurer is not before us on this appeal. City Stores and its insurer appealed but plaintiff only answered this appeal. He did not take his own appeal. Consequently he cannot secure any relief in this court against Otis and its insurer since the judgment in their favor became final. LSA-C.C.P. Art. 2133. Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir. 1976), Alleman v. Sentry Ins. Co., 257 So.2d 799 (La.App. 3rd Cir. 1972), writ denied 261 La. 466, 259 So.2d 915.

Accordingly, that portion of the judgment appealed from in favor of plaintiff is reversed and there is judgment in favor of defendants, City Stores Company, d/b/a Maison Blanche, and Travelers Insurance Company, and against plaintiff, Leopoldo C. Marquez, dismissing his suit at his cost.

REVERSED AND RENDERED.


author: SCHOTT, Judge. LEMMON, Judge, BEER and GARSAUD, Judges,

text:
    Dr. Joseph D. DUVIGNEAUD v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al.
    No. 9383.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearings Denied Nov. 20, 1978.
    Writ Refused Jan. 12, 1979.

      Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for defendant-appellant.
    Joseph W. Nelkin, New Orleans, for plaintiff-appellee.
    Before LEMMON, GULOTTA, SCHOTT, BEER and GARSAUD, JJ.
   SCHOTT, Judge.

On October 5, 1975, Joseph Calecas, Jr. drove his car to the New Orleans Lakefront accompanied by Everett Rowe and a large dog belonging to Mrs. Rowe. Calecas parked his vehicle on the lake side of Lake-shore Drive and got out of the car to observe some sailboats. The dog was in the back seat and the car windows were open. In the next few moments with Rowe still in the right front seat of the car, the dog jumped through an open window on the left side, ran around the front of the car and then into Lakeshore Drive, where he ran into a motorbike being operated by Dr. Joseph D. Duvigneaud. This caused Duvig-neaud to fall as the motorbike went out of control, and to sustain multiple fracture of the patella. Rowe was not aware that the dog had jumped from the car until he saw it coming from the front to the right side of the car.

Duvigneaud filed suit against Government Employees Insurance Company (GEI-CO), alleging its liability by reason of the uninsured motorists coverage provisions of the policy issued by GEICO to Duvigneaud. He contends that Calecas was negligent in failing to secure the animal in the car by rolling up the windows, and that this constituted “use” of the vehicle so as to make Duvigneaud’s policy with GEICO applicable.

Duvigneaud’s case against GEICO was tried to a jury who returned a general verdict in favor of Duvigneaud and against GEICO, awarding $1,100 in special damages and $8,900 in general damages. From a judgment entered in accordance with this verdict GEICO has appealed.

GEICO contends that 1) there was no proof of negligence on the part of Calecas, 2) there was no coverage by its policy for this incident, and 3) the trial judge committed error in failing to give the jury two proposed instructions, 4) Rowe’s conduct constituted an independent intervening cause of the accident, and 5) the award of $1,100 for special medical expenses was beyond the scope of the policy.

There is evidence in the record from which the jury could conclude that Calecas was negligent. Both he and Rowe described this dog as a large playful puppy, and he described an incident prior to the one sued on in which the dog had jumped from a car through an open window although on that occasion he was commanded to do so. This was a popular recreation area on a beautiful October Sunday afternoon. A great deal of activity was taking place. Finally, Rowe gave the impression that another dog in the area caught his dog’s attention provoking his exit from the car. Apparently the jury concluded that Calecas, as the owner of the car, had some duty to restrain the animal inside the automobile and that his leaving through an open window and becoming involved in a mishap was reasonably foreseeable.

On coverage, the policy provides under “Protection Against Uninsured Motorists” as follows:

“The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; . . .”

It seems unnecessary to labor the point that an ordinary “use” of any vehicle is the transportation of things be they animate, such as a dog, or inanimate. Thus, coverage did not even present an issue in Huskey v. Maryland Cas. Co., 53 So.2d 174 (La.App. 2nd Cir. 1951), where an accident was caused by a bundle of sugar cane which fell from defendant’s truck in the path of plaintiffs’ vehicle. In the instant case, Calecas’ negligence in failing to secure the animal arose out of the use of his automobile in transporting the animal around.

This case is easily distinguished from Speziale v. Kohnke, 194 So.2d 485 (La.App. 4th Cir. 1967), writ refused, 250 La. 469, 196 So.2d 534, where this court held that injury resulting from the actions of passengers throwing firecrackers from a moving automobile did not arise out of the use of the automobile. The court reasoned that the tortious acts were deliberate acts by the passengers as opposed to acts of the owner or driver arising out of the use of his automobile.

In Tillman v. Canal Insurance Co., 305 So.2d 602 (La.App. 1st Cir. 1974), writ refused, La., 307 So.2d 630, where the negligence of a truck driver in leaving a spill of gravel on a highway contributed to a fatal accident, the court found that the negligence did not arise out of the use of the automobile because it was not the spillage itself but leaving it unattended after it spilled which caused the accident. In the instant case the accident happened immediately following the dog’s exit from the car. The Tillman case would perhaps be applicable if the dog had been out for a time and had subsequently caused the accident.

In Baudin v. Traders & General Insurance Company, 201 So.2d 379 (La.App. 3rd Cir. 1967), the court analyzed the jurisprudence interpreting the provision “arising out of” the use of the automobile and found that the following tests have been used:

“(1) The dangerous situation causing injury must have its source in the use of the automobile; (2) The chain of events resulting in the accident must originate in the use of the automobile and be unbroken by the intervention of any event which has no direct or substantial relation to the use of the vehicle; (3) The accident must be a natural and reasonable incident or consequence of the use of the vehicle for the purposes contemplated by the policy, although not necessarily foreseen or expected; (4) The accident must be one which can be ‘immediately identified’ with the use of the automobile as contemplated by the parties to the policy; (5) The accident must be of a type reasonably associated with the use of the automobile as contemplated by the contracting parties; (6) The accident must be one which would not have happened ‘but for’ the use of the automobile.”

We have concluded that this case meets all these tests. This accident was a consequence of Calecas’ use of his automobile to transport this large playful animal to a busy place, and his negligence consisted in failing to secure the animal with the foreseeable result that the animal jumped out of an open window and practically immediately and directly caused Dr. Duvineaud to be injured.

We see no error in the instructions of the trial judge. One of the two instructions proposed by GEICO and rejected by the trial judge was merely a quotation from the policy of the coverage which is quoted hereinabove. We fail to see why it was necessary for the trial judge to give the instruction. He repeatedly instructed the jury that they were to decide if Calecas was negligent in the use of his automobile. This was a proper issue for the jury to decide. The other instruction requested by GEICO would have been misleading. It included the following:

“Therefore, you must determine whether or not the act of a dog jumping out of a window of a parked uninsured motorist’s vehicle constitutes use of that uninsured motorist’s vehicle.”

Obviously, the crux of this case is not the dog jumping but, rather, the owner’s conduct with respect to the dog which might and did jump from the car.

On the issue of Rowe’s intervening negligence, the jury was properly instructed that the issue was the negligence of Calecas as the proximate cause of the accident. Ca-lecas was the owner and operator of the car. He was responsible for transporting the dog and securing it in this area. When he got out he should have rolled up the window of the car so that the dog couldn’t get out. Rowe was getting ready to leave the car himself, checking traffic before opening his door, when he saw the dog already out of the car. Nothing in this sequence of events suggests a transfer of responsibility from Calecas to Rowe for securing the animal in the few moments after Calecas got out.

The final issue raised by GEICO is that a portion of the award, $1,100 for medical expenses, was beyond the scope of uninsured motorists protection. The argument seems to be that the policy would not provide coverage for plaintiff’s medical bills under the medical pay provisions of the policy, so it must follow that the bills are not recoverable under the UM provisions. We disagree. The latter provisions are broad, providing recovery for “damages . because of bodily injury.” The medical expenses surely come within this definition. GEICO’s reliance on Crenwelge v. State Farm Mutual Automobile Ins. Co., 277 So.2d 155 (La.App. 3rd Cir. 1977), is misplaced. That case held that the medical pay provision in policies were not subject to “stacking” as are UM provisions. The case is inapplicable to the issue raised by GEICO here.

Accordingly, the judgment is affirmed at defendant’s cost.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

BEER and GARSAUD, JJ., dissent and assign reasons.

LEMMON, Judge,

concurring.

The insurer contracted to provide plaintiff with the following uninsured motorist protection:

“The company will pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . sustained by the insured, caused by accident and arising out of the ownership maintenance or use of such uninsured automobile . . . ”. (Emphasis supplied)

Thus, the general issue of coverage presents two questions: Is the uninsured motorist (Calecas) liable for damages, and does plaintiff’s accidental injury arise out of the use of the uninsured automobile?

As to the latter question, Calecas at the time of the accident was using his car, in part, to transport and confine an otherwise unsecured animal while he and his friend were in the course of an automobile trip and were momentarily stopped to view sailboats. If his failure to secure the animal in the course of so using the automobile was such as to render him liable for damages, then the policy provides coverage for such use, because there was a causal relationship between this failure in the use of the car and the accident. The risk created by leaving the unsecured animal in an open vehicle during a momentary stop in the course of an automobile trip had its source in the use of the car and arose from such use.

The more difficult question is whether Calecas’ creation of that risk was a legal cause of the accident.

Calecas had the duty to secure his automobile during the momentary stop so as to prevent the animal (whether his or his passenger’s) from escaping into the adjacent lane of travel and causing a hazard to passing motorists. Had Calecas secured the animal or the car which contained the animal, the accident would have been prevented. By converse reasoning, Calecas’ failure to do so was a cause in fact of the accident.

The duty to secure the animal or the car is designed to prevent exactly what happened. Furthermore, there is an ease of association (the duty-risk counterpart of foreseeability) between the injury and the duty to prevent the reasonably anticipated act of an unrestrained dog’s jumping out of an open window of a car momentarily stopped adjacent to a lane of travel.

Calecas’ omission was a legal cause of the accident, resulting from a risk created by Calecas’ use of the uninsured automobile.

BEER and GARSAUD, Judges,

dissenting.

GEICO contends that the following proposed jury charges were erroneously rejected by the trial judge:

CHARGE A:
“Government Employees Insurance Company has introduced into evidence it’s policy of insurance insuring plaintiff’s automobiles on the date of the accident. Government Employees Insurance Company claims plaintiff has no right to recover under its policy with him and plaintiff claims he does. The uninsured motorists coverage of Government Employees Insurance Company policy states:
‘The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.’ ”
CHARGE B:
“Under Louisiana law for an accident to arise out of the use of a vehicle there must be some causal relationship between the accident and the use of the uninsured vehicle.
“Louisiana law further states the accident must be a natural and reasonable incident or consequence of the use of the vehicle for the purposes contemplated by the policy of insurance. The accident must also be one which can be ‘immediately identified’ with the use of the automobile as contemplated by the parties to the policy. Furthermore, the accident must be of a type reasonably associated with the use of the automobile as contemplated by the contracting parties. The accident must be one which would not have happened but for the use of the automobile in question.
Baudin v. Travelers [Baudin v. Traders & General Insurance Company, La. App.] 201 So.2d 379.
“Therefore you must determine whether or not the act of a dog jumping out of a window of a parked uninsured motorists vehicle constitutes use of that uninsured motorists vehicle.”

In rejecting the proposed charges, the trial judge observed:

“If Calecas is found to be negligent in this case, the negligence would have to be covered by the defendant’s policy, for the negligence and resulting injury would necessarily arise out of the ‘ownership, maintenance or use of the uninsured automobile,’ which is covered by the policy in question.
“Thus, if the jury finds Calecas negligent, and that his negligence proximately caused the accident and injury, it would necessarily follow that Calecas’ acts of commission, and omission, are out of the ‘ownership, maintenance or use’ of the car, for there is nothing which Calecas did or failed to do related to the dog which is not also related to the use of the automobile.”

In our view, the trial court’s rejection of GEICO’s proposed charges, coupled with the incomplete and incorrect instructions which were given to the jury, essentially deprived GEICO of its right to have the jury address and decide the issue of coverage. By taking away from the jury the right to decide whether or not the events which form the basis for this litigation did, in fact, arise from the “ownership, maintenance or use” of the Calecas automobile, the trial judge committed error. The jury, not the trial judge, was the proper arbiter of this factual issue. Thus, the jury verdict and the resulting judgment should be set aside and a new trial ordered. Accordingly, we respectfully dissent.


text:
    Sidney L. BARDFIELD v. NEW ORLEANS PUBLIC BELT RAILROAD et al.; Joseph P. BURNS v. NEW ORLEANS PUBLIC BELT RAILROAD et al.
    Nos. 9384, 9385.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearings Denied Nov. 20, 1978.

      Kronlage, Dittmann & Caswell, Albert S. Dittmann, Jr., New Orleans, for plaintiffs-appellants Sidney L. Bardfield and Joseph P. Burns.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, R. Patrick Vance, New Orleans, for defendant-appellee New Orleans Public Belt Railroad.
    Normann & Normann, Charles E. Leche, New Orleans, for defendant-appellee American Marine Corporation.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiffs, Sidney L. Bardfield and Joseph P. Burns, have appealed from judgments dismissing their suits against New Orleans Public Belt Railroad (Public Belt) and American Marine Corporation (American). Plaintiffs sought damages for personal injuries sustained in separate accidents which occurred on August 22, 1969.

Both plaintiffs were employed as longshoremen scheduled to work at American’s facility on the Mississippi Riverfront in New Orleans and were both guest passengers in separate automobiles, traveling on a road leading to American’s facility. This road was on the property of the Board of Commissioners of the Port of New Orleans (the Dock Board), and was crossed over by train tracks belonging to Public Belt. These tracks were part of a spur track serving American’s facility but the spur had not been used for some time prior to the date of the accidents.

Hurricane Camille had occurred in the New Orleans area on August 17, 1969, and the severe flooding accompanying the hurricane had washed away the ballast between the rails and for a short distance on both sides of the tracks. As each one of the automobiles reached the crossing the front end of the automobile dropped with great force into the depression where the ballast had been causing injuries to each passenger. The hole was filled with water at the time so that its condition was not apparent to the drivers.

Plaintiffs originally brought suit against the two appellees along with the State of Louisiana, the City of New Orleans and the Dock Board. Their suits against these other defendants were dismissed by judgments prior to the one appealed from and these parties are not before the court. Third-party demands were also filed by Public Belt and American against various parties and against each other, but these third-party demands are likewise not before us on this appeal.

In dismissing plaintiff’s suits, the trial judge gave the following reasons:

“This condition in the roadway between these railroad tracks was caused by an act of God — Hurricane Camille. Its flood waters washed away the shells and fill between the tracks and it was humanly impossible for the defendants to correct the situation any sooner than they did. The defendants did not cause the washout and did not unreasonably delay their remedy of the situation.”

The facts do not support exonerating defendants on the Act of God theory. On August 18, the day after the hurricane, the assistant chief engineer of the Orleans Levee Board inspected this area and found that the ballast had been washed away from the tracks to the extent that the cross-ties between the rails were exposed and an automobile could not be driven over the gap. Furthermore, a report was made on August 20 by a Dock Board harbor policeman that the storm had washed away the ballast from the tracks and left a large hole which “could cause an auto accident or injury to persons entering or leaving the wharf.” Finally a harbor police captain testified that he discovered and reported the condition on the 21st of August. It may be that the hurricane prevented the responsible party from correcting the situation before August 22 when these accidents occurred, but the evidence establishes that the responsible party should have known about the condition and had ample time in which to erect warnings or barricades in order to protect from harm those individuals who would use the road on the date of the accidents.

However, the problem with this case is to determine whose responsibility it was to take appropriate action. In making this determination not only are appellees candidates for this responsibility but also the Dock Board. However, if the Dock Board were responsible plaintiffs would still not be entitled to recovery because the judgments dismissing the suits against the Dock Board are now final.

The relationship between Public Belt and American at the time of the accident was governed by a switch track contract which contained the following pertinent provisions:

“3. COMPANY shall bear all costs of maintaining, repairing, and renewing the TRACK, the actual work of such maintaining, repairing, and renewal to be done when deemed necessary by the RAILROAD, by and with materials furnished by RAILROAD and COMPANY agrees to pay all bills for such material, maintenance, renewal and repairs within thirty (30) days after receipt thereof. . ..”
“4. The RAILROAD shall be owner of the TRACK and shall have sole control of it, and shall have the right to use the entire TRACK for any lawful purpose not inconsistent with the proper handling of the business of the COMPANY. In case the ownership of the RAILROAD in the TRACK includes any part of the same lying beyond the right of way or streets or Other Public Places occupied by the RAILROAD, the materials in such part of the TRACK shall be and remain personal and shall not become a part of the realty.”

The vice president and secretary of American testified that this crossing was a part of the Public’ Belt’s spur track used to serve American’s yard. All maintenance on the tracks would be done by Public Belt and a bill for the repairs would be sent to American. However, use of the spur track had been discontinued in February, 1968, when the Public Belt “spiked out” the spur track, that is, drove spikes in the switch from the main line into the spur to prevent it from being activated. Thus, at the time of the accidents it is difficult to see how American could have any responsibility for the condition of the tracks at this crossing. It no longer had any use for the track and Public Belt, as the owner of the track, had taken appropriate action to shut off American from any use of the track. The crossing was located not on American’s property but on the property of the Dock Board. The conclusion is inescapable that American had no responsibility and consequently is not liable to plaintiffs for their injuries.

The road which plaintiffs had taken and across which Public Belt’s tracks were laid belonged to the Dock Board. As the owner of that road the Dock Board would seem to have a duty to protect the traveling public from defects and hazards on its road. The road crossed over the tracks and ordinarily the duty of protecting the traveling public would be the same for that portion crossing the tracks as for the rest of the road. See Bangs v. City of New Orleans, Dept. of Streets, 196 So.2d 324 (La. App. 4th Cir. 1967). However, as already stated, we would be unable to afford plaintiffs any relief with respect to the Dock Board at this stage of the proceedings even if there were a factual basis for the Board's liability.

As for Public Belt, we have considered if LSA-R.S. 45:323 and 324 are applicable. Assuming that the road in question is a public street, R.S. 45:323 provides that railroads “owned and operated by a political corporation” are specifically excluded, and Public Belt falls in this class. See Art. 14, § 26 of the Constitution of 1921.

R.S. 45:324 places the following statutory duty on railroads: “Where railroads, tram-roads, dirt or plank roads cross any highway, the corporation shall so construct the works as not to hinder, impede or obstruct its safe and convenient use . . . ” This statute has been interpreted to impose on a railroad a continuing duty to keep a crossing in repair and has provided a basis for liability where the failure on the part of the railroad to keep such a crossing in repair causes injury to a traveler on such a road. Darby v. New Orleans T. & M. R. Co., 139 La. 213, 71 So. 490 (1916); Homeland Insurance Co. v. Thompson, 12 So.2d 62 (La.App. 1st Cir. 1943); Brandon v. Texas & New Orleans R. Co., 169 So. 254 (La.App. 1st Cir. 1936).

However, we have concluded that the road where this accident occurred is not a “highway” as used in the statute. First, R.S. 32:1(25) defines a highway as one which is publicly maintained and open to use by the public. While the Dock Board is a public agency and its roads are maintained by the public in a sense, this definition in R.S. 32:1 connotes maintenance by the state or a political subdivision in the exercise of its function to maintain public roads. Second, such a road was treated by this court in Potter v. Board of Com’rs of Port of New Orleans, supra, as a private wharf road as opposed to a public road. Finally, in Rothe v. White, 158 So.2d 329 (La.App. 1st Cir. 1963) the court made a distinction between a highway and

“. a privately maintained right of way, which was not open to the use of the public in the same sense as a public highway or road. It was intended to be used by any member of the public who wished to transact business within any of the establishments located within the Choctaw Village shopping center.”

In the same way, the road where the subject accident occurred was intended to be used by any member of the public who wished to transact business on the dock to which the road led, but it was not intended for the use of the public in general as in the case of a highway. We have thus concluded that R.S. 45:324 is inapplicable and cannot afford a basis for Public Belt’s liability to plaintiffs.

Plaintiffs have attached much significance to the obligation of maintenance placed on Public Belt in its contract with American but this does not provide a basis for concluding that Public Belt had a duty in favor of plaintiff which it breached with resulting liability. This contract’s purpose was to assign rights and obligations between those parties while the spur was in use. Once the spur was spiked out American no longer had any interest in it and Public Belt no longer had any reason to maintain it for American’s benefit.

The injured plaintiffs must look first to the owner of the property for recovery. Recovery from Public Belt would require a showing that it assumed the Dock Board’s liability. No such showing was made here. If such a transfer of responsibility existed it would have been evidenced by some agreement between the Dock Board and Public Belt, and no such agreement is in the record. Moreover, the actions of the Dock Board indicated there was no such agreement. The record shows that the Dock Board’s Harbor Police regularly inspected for just such conditions as occurred here. Their reports went to the engineering department of the Dock Board which then performed the necessary repairs. This procedure was not disputed by any of the employees who testified.

In order to hold Public Belt liable to plaintiffs there must be some basis for assigning to it a duty toward those who use this private road. Plaintiffs have not demonstrated such and we have found no basis for such a duty in our own research. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . The suits against the Dock Board were dismissed in November, 1970, based on the controlling jurisprudence to the effect that the Board was immune from suit. This jurisprudence was subsequently overruled by the Supreme Court in Board of C. of P. of New Orleans v. Splendour, S. & F. Co., 273 So.2d 19 (1973).

      . In Potter v. Board of Com’rs of Port of New Orleans, 148 So.2d 439 (La.App. 4th Cir. 1963), this court considered the Dock Board’s duty to a plaintiff using a wharf road as the duty owed to a licensee as distinguished from an invitee and limited that duty to the warning of defects actually known to the Board.


author: BEER, Judge.

text:
    Alvin PIERRE v. TIMES-PICAYUNE PUBLISHING COMPANY et al.
    No. 9260.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.

      Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr., New Orleans, for defendant-appellant.
    Edward J. Norton, Jr., New Orleans, for plaintiff-appellee.
    Borrello & Huber, Stephen L. Huber, Me-tairie, for intervenor-appellee.
    Before REDMANN, LEMMON and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, Alvin Pierre, filed this claim for damages against Earl F. Suhre, Sr., R. E. Neumann, Inc. (Suhre’s employer) and Neumann’s insurer, United States Fidelity and Guaranty Company, for injuries resulting from an automobile collision. Trial on the merits resulted in judgment being rendered from the bench against defendants-appellants on the liability issue. A few weeks thereafter, the court determined that Pierre’s general damage award should be set at $15,000. Appellants contend that the trial court erred in its finding of liability and then abused its discretion in awarding general damages in the amount of $15,000.

The accident occurred shortly before 7:00 a. m. on October 17, 1974, at the “T” intersection of the River Road and Hooker Access Road in St. Charles Parish. The weather was fair and clear. Preparatory to making a left turn from River Road to Hooker Access Road, Suhre claims to have decelerated to 15-20 mph and engaged the turning indicator. Just short of the intersection, he noticed two oncoming cars in the left or downriver lane of River Road. The first was close to the intersection, and the second (Pierre’s) was approximately 125 feet behind the first. He continued at 15-20 mph without braking and, as soon as the first vehicle passed, he executed a moving left turn and accelerated. Pierre, however, contends that he was thereby obliged to swerve his vehicle into the oncoming (upriver) lane in an unsuccessful attempt to avoid a collision with Suhre. Consequently, his vehicle glanced off the rear of Walter Mellerine’s vehicle and collided head on with that of F. E. Vasderling. There was no contact between the Suhre and Pierre vehicles. Suhre testified that he first became aware of the accident when informed of same by his passenger after they had traveled approximately 150 feet on Hooker Road.

Pierre testified that he was approximately 100 feet from the intersection and traveling about 40 mph when he saw Suhre make the left turn across his lane. If Suhre did signal a turn, he did not see it. He “touched” his brakes and swerved.

Suhre’s passenger, Cozzins, testified to hearing the squeal of brakes after they had traveled about 100 feet on Hooker Road. He looked back and saw plaintiff’s car hit a rut on the edge of the downriver lane of River Road and bounce across into oncoming traffic where it was hit by a truck.

Walter Mellerine’s vehicle was traveling behind Suhre’s truck. On direct examination, Mellerine testified that he did not see Suhre’s indicator light or brake light before his vehicle made the left turn. He stated that he saw Pierre’s oncoming car and anticipated the collision when Suhre turned left. Before Pierre swerved, Mellerine accelerated to avoid involvement of his vehicle. Even so, Pierre hit Mellerine’s rear bumper just as the Mellerine vehicle was about even with the intersection.

Suhre contends that he fulfilled the twofold duty imposed by LSA — R.S. 32:104(A&B): appropriate signal and turning when such a maneuver could be executed with reasonable safety. He further contends that Pierre was negligent in breaching a two-fold duty to keep a proper lookout and to maintain a safe speed and proper control of his vehicle.

To reverse, we must conclude that the trial court manifestly erred in finding that this record supports Pierre’s version of Suhre’s negligent actions and fails to support Suhre’s claim that Pierre was contribu-torily negligent.

It is well settled that the burden rests heavily on the left-turning motorist to explain how the accident occurred and to show that he was free from negligence. Louisiana Power and Light Company v. Doussan, Inc., 235 So.2d 122 (La.App.4th Cir. 1970). Accord, Fernandez v. Aetna Casualty & Surety Company, 180 So.2d 828 (La.App.4th Cir. 1965).

The giving of a signal is immaterial if the turn can not be made safely, and our inquiry must be less with respect to whether an emergency stop could have been made than whether the left turning driver could safely negotiate the turn without causing observable motorists to execute an emergency stop. Casimere v. Ryder Truck Rental, Inc., 324 So.2d 855 (La.App.4th Cir. 1975). In Casimere, which involved a speeding plaintiff, we observed:

“As to any right to assume other motorists will obey the law, this right flows to right of way motorists and lessens their duty of lookout at intersections. On the contrary, a greater duty of look-out is imposed on left-turning motorists.” 324 So.2d at 862.

The trial court concluded that Suhre had failed to overcome the evidentiary burden properly imposed upon a left-turning motorist and that Pierre’s evasive action was a reasonable response to the apparent emergency created by Suhre’s actions. We conclude that the trial court’s appreciation and analysis of the evidence of liability is supported by the record and is not manifestly in error.

The trial court awarded $15,000 in unitemized general damages for “pain and suffering.”

Pierre was hospitalized for eleven days following the accident. His injuries were diagnosed as low back sprain and a hairline fracture of the transverse process.

The deposition of the attending orthopedist, Dr. Hamilton, was the only expert medical evidence. Dr. Hamilton testified that the sprain was more significant than the fracture but that neither injury was medically significant.

On the third day of his hospitalization, Pierre was able to get up from bed, exercise and walk about. The doctor believed that Pierre was “psychologically overplaying the existing trauma” and that within two months from the date of the accident Pierre’s condition had sufficiently improved to the extent that he could resume his paper route and his job as a die cutter. Dr. Hamilton felt that the injury should have taken no more than three months to completely heal and that the low back sprain had, in fact, cleared as of December 16, 1974 — two months post-accident, although Pierre contended that he was unable to return to his job as a die cutter until January and did not return to his paper route at all.

Although the trial court’s written reasons for judgment mention the length of plaintiff’s hospital stay (11 days) and the length of his alleged disability (5 months), emphasis was placed on the deposition testimony indicating the doctor’s surprise that Pierre returned to work as soon as he did, considering the injury. Careful analysis of Dr. Hamilton's deposition (particularly at page 51, lines 2-22) suggests that the trial court may have either misread or misinterpreted the doctor’s comment. Dr. Hamilton stated that his surprise was related, not to the seriousness of the injury, but to his subsequently incorrect assumption that Pierre’s “excessive reactions” would be an indication of his unwillingness to return to work within a reasonable time. Pierre’s inappropriate and dramatic behavior and his resistance to physio-therapy caused Dr. Hamilton to believe (erroneously, he acknowledges) that Pierre would be slow in returning to work.

At any rate, what is most apparent from this record is the fact that there is no conflict to resolve with respect to the medical expert testimony or other evidence of Pierre’s alleged injury. Dr. Hamilton was the treating physician and the only medical expert called to testify.

Based upon all of the evidence in this record, we conclude that the trial court has manifestly erred in its general damage award of $15,000. Indeed, this record is hard pressed to support an award of one-third of that amount, and, were we setting the award, it would be substantially lower than one-third of the amount awarded.

However, we must accord Pierre his full Coco v. Winston prerogatives, and, though we are strongly of the view that a $5,000 award is considerably higher than is justified by this record, we acknowledge that such an amount represents the stretehed-out maximum limit of an award that we would not disturb.

Accordingly, the judgment of the 29th Judicial District Court for the Parish of St. Charles is amended so as to reduce the general damage award to $5,000 and, thus amended, is, in all other respects, affirmed.

AMENDED AND AFFIRMED.

      . This suit was consolidated for trial with plaintiffs workman’s compensation suit against the Times-Picayune which third-partied defendants-appellants.

      . Defendant introduced an excerpt from plaintiffs deposition at p. 60 in which he stated that he had no chance to apply his brakes.

      . The transverse process is a small process of bone which extends outward laterally from each lumbar vertebra and whose function is muscle attachment.

      . 341 So.2d 332 (La. 1976).


text:
    Martha LOKER v. TULANE UNIVERSITY OF LOUISIANA, St. Paul Fire & Marine Ins. Co., Beta XI Chapter of Beta Theta PI and Chris Green.
    No. 9376.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Writ Refused Dec. 1, 1978.
    Murray, Murray, Ellis, Braden & Landry, Stephen B. Murray, New Orleans, for plaintiff-appellant.
    Drury, Lozes & Curry, James H. Drury, Robert Wood, New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Martha Loker, was injured on November 2, 1974, when riding in the Tulane Homecoming Parade aboard a truck decorated and sponsored by Beta Theta Pi fraternity. As the decorated truck executed a left turn from Broadway onto Maple Street, a part of the decoration, which was a replica of an outhouse, fell and knocked her off the side of the flatbed into the street.

Appellee, Commercial Union Insurance Company, the Owners’, Landlords’ and Tenants’ insurer of the local chapter of Beta Theta Pi, urged certain policy exclusions in support of its motion for summary judgment which was denied, and trial on the merits ensued. However, at the conclusion of the trial, the court granted the motion, and Loker now appeals.

The case was fully tried on its merits with evidence adduced on the issues of negligence, coverage and quantum. However, the judgment which has dismissed the Loker claim against Commercial Union, was handed down without written reasons, and we must, therefore, focus our consideration on the correctness, vel non, of its dismissal of appellant’s claim. Appellant suggests that it must be inferred from the maintaining of the summary judgment motion that a finding of no coverage is the basis upon which the judgment was rendered.

Little testimony or other evidence was presented to support the allegations of negligent construction of the truck decorations or lack of supervision of the float riders who were allowed to sit upon the outhouse structure which failed to support their weight. The lay testimony of Herbert Ashe and Michael Schornstein was less than conclusive of negligence though they did testify that the float decorations — including the failed “outhouse” — were assembled at the fraternity house premises and then installed on the flatbed truck by fraternity members. They observed several persons seated atop the “outhouse” prior to its collapse but were unable to verify the cause.

Though the record is devoid of specific evidence of improper construction, it is obvious that the “outhouse,” primarily a decoration, collapsed while under the weight of the riders who were seated on top of it.

Assuming, arguendo, that this combination of circumstances does constitute a basis for liability, the issue of coverage then becomes relevant. Accordingly, appellant’s able counsel strenuously urges that Martha’s injury results from “use” of the insured premises, contending that the construction (and subsequent placement on the flatbed truck) of the failed outhouse took place at the fraternity’s premises and that its construction and placement was a reasonably anticipated “use” of the fraternity premises.

In our view, Martha’s unfortunate injury arose from the “use” of the motor vehicle, whose insurer has already settled with her. Since appellee’s Owners’, Landlords’ and Tenants’ policy is quite clear with respect to excluding occurrences which result in bodily injury arising from the “use” of a motor vehicle, we conclude that the trial court was not manifestly in error in resolving the coverage issue in favor of appellee and, thereby, concluding that summary judgment was, after all, the appropriate remedy-

In summary, we conclude that the record supports the finding that Martha’s injury resulted from the “use” of that motor vehicle, but not from the “use” of the Beta house premises.

For these reasons, the judgment of the Civil District Court for the Parish of Orleans is affirmed, at appellant’s cost.

AFFIRMED.