author: STOULIG, Judge. LEMMON, Judge, LEMMON, Judge,

text:
    Carroll A. PITRE v. Robert J. BOURGEOIS, Perrin Rittiner, d/b/a Rittiner Equipment Company, and the Travelers Insurance Company.
    No. 9969.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied June 11, 1979.

      Robert J. Neal, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, for Robert J. Bourgeois, Per-rin Rittiner, d/b/a Rittiner Equipment Company, and Travelers Insurance Company, defendants-appellees.
    Leach, Paysse & Baldwin, Philip A. Fant, New Orleans, for Goodyear Tire and Rubber Company, defendant-third party defendant-appellee.
    William V. Renaudin, Jr., New Orleans, for Crescent Ford Truck Sales, Inc., defendant-third party defendant-appellee.
    McGlinchey, Stafford, Mintz & Hoffman, William F. Bologna, New Orleans, for Ford Motor Company, defendant-third party defendant-appellee.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Carroll J. Pitre, has appealed a judgment dismissing his suit for damages sustained when his automobile was struck by two wheels which became detached from a sweeper as both vehicles were proceeding on the expressway approach to the Greater New Orleans Bridge. Named defendants were Robert J. Bourgeois; Perrin Rittiner, doing business as Rittiner Equipment Company; and the Travelers Insurance Company, the driver, owner, and insurer of the owner respectively. Also joined as third party defendants in the third party petition of Bourgeois, Rittiner, and Travelers and as original defendants in the amended pleadings of the plaintiff were Crescent Ford Truck Sales, Inc., seller of the chassis on which the sweeper was mounted; Ford Motor Company, the manufacturer; and Goodyear Tire and Rubber Company, the vendor of the tires which it installed on the sweeper within weeks of the accident.

On January 2,1974, two right rear wheels of the sweeper came off without warning, rolling backward and striking the Pitre vehicle following it. Plaintiff lost control of his car and struck the bridge guard railing.

Although Pitre’s freedom from fault is beyond dispute, the issue before us is whether one or a combination of any of the defendants was guilty of actionable negligence. The fact that two wheels came off a truck chassis as it was being driven in a manner for which it was manufactured indicates that somewhere along the line there was a breach of the duty of care owed to motorists who would be on the road while the sweeper was being operated.

The evidence establishes the chassis was a 1974 one-ton F350 Ford truck, purchased new by Rittiner on September 25, 1973, to which Rittiner’s personnel attached a Timco air vacuum sweeper. The sweeper had a capacity load of between 1000 and 1200 pounds of debris. On December 18, 1973, Goodyear Tire and Rubber Company installed four steel belted radial tires on the rear dual wheels of the sweeper because Rittiner’s personnel thought this type of tire would be less susceptible to flats than the original tires on the truck at the time of purchase. Metallurgical expert Oscar Al-britton testified the wheels came off because some of the lugs were not tight.

The record is clear that the four rear wheels, mounted with the new steel belted radials, were installed by Goodyear on the date of purchase, December 18. However, the evidence is hazy as to whether any of the Rittiner personnel removed any of these tires from the truck after the Goodyear installation. Perrin Rittiner, owner of the business, testified that because of the use to which the machine is put, i. e. sweeping up debris and glass, the machines have many flat tires. When questioned if there was any occasion to remove the rear wheels between the time of the Goodyear installation and the time of the accident, Rittiner admitted he did not know. Glen Faust, Rittiner’s shop foreman, first stated that the Rittiner personnel never perform any tire repairs at all. Then he conceded that on occasion Rittiner does its own tire repair work. On December 19, 1973, Rittiner purchased a tube for a 750 x 16 tire, the type used on the sweeper in the accident and on no other vehicle in the Rittiner pool. Faust stated he did not know if the new tube, purchased after the radial tire installation, had been placed in the new tires. Had Goodyear installed the new tube, this fact would have been established by their records which they had produced. Robert Bourgeois, the driver, also at first testified that Rittiner never did its own tire repair and later admitted that on occasions it did. In fact, after the accident, the sweeper was put back into service by using one of the undamaged tires that came off and by a spare wheel and rim kept in the Rittiner shop. It was Rittiner personnel who made the repair and reinstalled the rear tires.

To summarize the evidence quoad installation, it appears that Goodyear installed the rear wheels on December 18, 1973 and Rittiner personnel may or may not have removed them thereafter.

In another area of causality, there is evidence in the record that Bourgeois, the operator, may have had some indication that the vehicle was not running properly before he drove onto the expressway. At the trial he testified he felt no unusual vibrations from the truck prior to the accident. When his deposition was used to refresh his memory to the effect that he had previously stated he had felt vibrations, he admitted first feeling the vibrations when he was at Schwegmann’s store on Broad Street, which is several miles from the accident site. He testified he customarily checks the tires three or four times during a shift. Bourgeois said he checked the tires immediately before driving onto the bridge approach and could not find the cause of the vibration. He attributed it to the load. At the time Bourgeois had been employed as a sweeper for approximately three weeks and had been operating that particular sweeper for about one week.

Although Bourgeois dismisses as routine the vibrations he felt, his testimony when read altogether gives the distinct impression that vibrations were not those normally experienced in the operation of the vehicle. When questioned about why he checked his tires before going onto 'the bridge, he indicated he thought he might have a flat. This answer eloquently demonstrates the machine was acting improperly before he drove it on the expressway.

The trial court dismissed the suit because:

“[It] * * * is of the belief that it can find no negligence on the part of R. J. Bourgeois, Perrin Rittiner, d/b/a Rit-tiner Equipment Co., Travelers Insurance Co., Crescent Ford Sales, Inc., Ford Motor Co.
“The question of negligence of Goodyear Tire & Rubber Co. was not proven if any existed on the part of them.”

From the quoted reasons, it is apparent the trial court placed on plaintiff the burden of affirmatively demonstrating in which respects any of the defendants named were negligent. If this is a correct application of the rules of evidence, the plaintiff must carry a burden of proof that is next to impossible to sustain. It is true he can demonstrate the wheels came off the truck. Through discovery and the third party pleadings, plaintiff has learned Goodyear installed the tires two weeks before the accident, but this in itself does not establish Goodyear’s negligence.

The crucial factual questions are whether any Rittiner personnel removed the .rear tires after the Goodyear installation and, if so, were they replaced with the degree of care required to safely attach a wheel. Certainly it is unreasonable to require plaintiff to go forward with this evidence since defendants Rittiner and Bourgeois are the parties most able to produce evidence along these lines. From the testimony adduced we know that Rittiner personnel sometimes changed tires on the sweeper, that this defendant purchased a tube from Goodyear after the tires were installed and that the driver Bourgeois had some indications of problems before he drove the sweeper onto the bridge.

Our review of the evidence leads us to apply the doctrine of res ipsa loquitur in evaluating liability. This rule of evidence is properly applied at the termination of a case after all the evidence is submitted, and only where the facts reasonably lead to the conclusion that the defendant was negligent in some manner. The effect is to shift to the defendant the burden of explaining why, under the circumstances, it was not negligent. Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (La.1957). In Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (La.1972), the Court in describing the factual circumstances in which the rule of res ipsa loquitur should be applied stated it was when the inference of defendant’s negligence was the “most plausible explanation” or the “more probable cause” of the injury. If the evidence inferentially suggests the defendant’s negligence as the more plausible explanation, then the trier of fact must be satisfied that the party against whom the inference of negligence arises has satisfactorily brought forward evidence that would exculpate him from liability.

Analyzing the facts before us in the light of this discussion, we begin with the premise that the wheels came off because someone was negligent. The sweeper was an instrumentality within the control of Rittiner for at least two weeks prior to the accident. While it is true Goodyear installed four new tires on December 18, which suggests some degree of responsibility might rest with Goodyear, it is within the sole province of defendant Rittiner to prove its employees did not tamper with the tires or change them after Goodyear’s installation. Had Rittiner, Faust and Bourgeois been consistent in the assertion that no Rittiner personnel removed the rear tires after the radials were installed, we would consider their testimony sufficient to exculpate Rittiner. But this is not the case. All three gave contradictory testimony as to whether Rittiner’s people did or did not change tires.

Further, the record suggests the driver Bourgeois was negligent in driving onto the bridge when he had reason to suspect the sweeper was vibrating more than it should have.

We conclude the negligence of Rittiner and Bourgeois combined to cause the accident in which plaintiff sustained his injuries. Premised on the finding that Rittiner failed to explain away the inference of negligence this result also warrants our finding that the alleged negligence of Goodyear was not established. Only by absolving itself of responsibility for tampering with the rear wheels between the installation by Goodyear and the accident, could Rittiner have shifted the inference of negligence to Goodyear.

The record is totally devoid of any evidence tending to establish a breach of duty owed by Crescent Ford Truck Sales, Inc., vendor, and Ford Motor Company, manufacturer, to Rittiner and/or plaintiff. Therefore the dismissal of the original and of the third party demands against these defendants are affirmed.

We next consider quantum. As a result of this accident, plaintiff suffered either an injury or the aggravation of a cervical disc condition, a cervical strain and activation of an arthritic condition in the cervical spine. He underwent a regimen of ultrasonic heat treatments to the neck and wrist areas and used cervical traction. Whether he developed a left stiff shoulder syndrome from the trauma is questionable in view of the fact that expert orthopedists who appeared for the defendants opined that plaintiff was voluntarily restricting the range of motion of the left shoulder. We were not impressed with Dr. Macaluso’s testimony and conclude that while plaintiff was indeed injured, he magnified the duration and intensity of his suffering. Plaintiff returned to work approximately one year after this accident and, taking the medical evidence as a whole, we conclude his general damages should rest on disability for that period and possible occasional discomfort for a short time thereafter. We award $17,500 general damages.

As to special damages, plaintiff claims loss of wages of $10,340.83 after taxes. The testimony of Michael Hager, operation supervisor of Electric Delivery Service, plaintiff’s employer, established Pi-tre did not work from the date of the accident until January 10, 1975. Although we find his computations confusing, if we compute lost wages by deducting the net income in 1974 from the net in 1973, we reach a figure slightly higher than that requested by plaintiff in brief. Accordingly we award the $10,340.83. There was a wage increase for plaintiff and other truck drivers during his absence; however, there is insufficient information to compute the loss accurately.

Plaintiff’s automobile, a 1965 Dodge, was a total loss for which he is entitled to recover $472. His medical expenses were $1,128.93. His total special damages are $11,941.76.

For the reasons assigned the judgment appealed from is affirmed insofar as it dismisses plaintiff’s suit against Goodyear Tire and Rubber Company, Crescent Ford Truck Sales, Inc., and Ford Motor Company, and reversed insofar as it dismisses plaintiff’s suit against the other defendants. It is now ordered, adjudged and decreed there be judgment in favor of Carroll A. Pitre and against Robert J. Bourgeois, Perrin Rit-tiner, doing business as Rittiner Equipment Company, and the Travelers Insurance Company, jointly, severally and in solido, in the sum of $29,441.76 with legal interest from judicial demand and all costs of this suit.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge,

concurs and assigns reasons.

The liability of Rittiner and Bourgeois should be determined on the basis of the liability of an owner-guardian of a thing under C.C. art. 2317. Loescher v. Parr, 324 So.2d 441 (La.1975); see Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), which applied C.C. art. 2317 in the case of a vehicle’s brake failure.

C.C. art. 2317 imposes legal fault on the guardian of the thing for damage caused by a defect in the thing, without consideration of personal negligence by the guardian. Therefore, no consideration of direct or circumstantial evidence of negligence is necessary to the decision as to the liability of these defendants.

On the question of Goodyear’s liability, I agree that the trial court did not err manifestly in concluding Rittiner and Bourgeois failed to prove the harm was caused by Goodyear’s fault so as to escape liability under C.C. art. 2317.

LEMMON, Judge,

dissenting from the denial of the application for rehearing and assigning reasons.

The record clearly shows (1) that Goodyear repaired all of Rittiner’s flat tires and (2) that Rittiner never repaired flat tires, although they occasionally changed flat tires. If Rittiner during the critical period had been required to change a flat tire (using a spare), Goodyear in the same time interval would have repaired the tire and had a record of the service billing. Absence of such a record, plus the newness of the tires and the fact that steel belted tires were purchased to reduce flats (that occurred only twice in months prior to the change to the better tire), make it more likely than not that the tires were not removed after Goodyear’s installation, only 16 days prior to the accident.

Accordingly, I am inclined to the view that Rittiner, having proved by a preponderance of circumstantial evidence that the jury was caused by the fault of a third party for whom it was not responsible, is entitled to full indemnity from Goodyear. I would therefore grant a rehearing.

      . The term “tire repair” as used in this opinion includes the changing of the tire and not necessarily its repair in every instance.

      . If Goodyear’s fault had been proved the cause of plaintiffs harm, Rittiner and Bourgeois would still be liable to plaintiff, because the responsibility imposed on the guardian for the thing under his control is not delegable, and the guardian is not relieved of his responsibility to an innocent victim damaged by a defect in the thing on the basis that defect was created by a third party who performed services on the thing on behalf of the guardian. As to the victim, the guardian and the third party would be solidarily liable, although as between the guardian and the third party who created the defect in the thing, the third party could be liable for the whole debt under C.C. art. 2106. Thus, plaintiff’s failure to sue Goodyear within the prescriptive period would not have been a proper basis from dismissing the suit entirely, even if the proof by Rittiner and Bourgeois against Goodyear had been sufficient.

      . As noted in my concurring opinion on original hearing, Rittiner’s responsibility as guardian of the thing is non-delegable. Therefore, as to plaintiff, Rittiner is liable for the injury-causing fault of the independent contractor hired to service the thing under its control, but as between Rittiner and Goodyear, Rittiner is entitled to full indemnity.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Leonard LUCAS v. John DOE et al.
    No. 10001.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied June 11, 1979.
    Harry T. Widmann, Daniel J. Caruso, Alford & Caruso, New Orleans, for plaintiff.
    Joseph R. McMahon, Jr., Young, McMahon & Levert, New Orleans, for defendants.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

At 2 a. m. on a Sunday plaintiff’s automobile was rear-ended by a truck belonging to defendant American Rent-All, Inc. and perhaps insured by defendant Great American Insurance Company. From a $51,500 judgment for plaintiff on jury verdict, those defendants appeal.

We first agree with Rent-All that a showing of its truck driver’s fault does not make it liable when the accident occurred in the middle of the night and Rent-All’s business does not function after 5 p. m. We therefore reverse as to Rent-All on the basis that, although the record does support an inference that the driver was Rent-All’s employee, the record does not support an inference that he was driving on Rent-All’s business at the time of the accident.

We also agree with the insurer that no evidence of its having insured the truck was presented and thus the jury had no basis (not even the pleadings) upon which to hold the insurer liable. In response to the petition’s allegation that it insured “against the negligence of” Rent-All and its employees and lessees, the insurer’s answer denied it “except to aver that the policy of insurance, is, itself, the best proof of its contents.” That answer admitted the existence of a policy, but does not suffice as an admission that, for example, all liability of all employees is covered, or even that it is an automobile policy and one with an omnibus clause. As in Carriere v. Triangle Auto Svc., La.App. 4 Cir. 1977, 340 So.2d 665, we remand to allow plaintiff to obtain and introduce into evidence the policy. The question of law whether the policy affords coverage of an employee not in course and scope but presumably with (limited) permission to drive may then be decided by the trial judge.

We do not now review the jury’s assessment of quantum because that is unnecessary unless coverage is shown.

Reversed as to American Rent-All, Inc. at plaintiff’s cost; set aside and remanded as to Great American Insurance Company with costs to await final outcome.


author: SCHOTT, Judge.

text:
    Albertha BUTLER v. COMMERCIAL UNION INSURANCE COMPANY and Commercial Union Assurance Companies.
    No. 10030.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Writ Refused June 15, 1979.
    Marilyn A. Boothe, New Orleans, for plaintiff-appellant.
    James H. Drury and Steve Lozes, Drury & Lozes, New Orleans, for defendants-ap-pellees.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment dismissing her claim for penalties and attorney’s fees based on the failure of defendant to pay workmen’s compensation benefits.

Plaintiff was injured in the course and scope of her employment on January 18, 1977. She filed suit for compensation benefits against her employer, Security Industrial Insurance Co., only, and, after a trial on the merits on October 18, judgment was rendered in her favor for compensation benefits for the period of February 1 through October 17, 1977, at the rate of $95 per week together with medical expenses in the amount of $787.40. The judgment was paid and a satisfaction of judgment was signed by her former attorney on October 25, 1977.

She brought the present suit against her employer’s insurer on December 14, alleging that defendant was notified of her accident “at least by June 16, 1977, and probably earlier.” In answer to the petition defendant alleged that its first knowledge of the accident came from the suit papers and a copy of the first report of injury which it received on June 16, 1977.

At the trial plaintiff testified that the accident sued on occurred in the presence of her supervisor. She was with him when she fell down a flight of stairs during the course of collecting insurance premiums. The supervisor admitted that he witnessed the accident and that plaintiff called him the following day to say that she was unable to work. He stated that he reported the incident to his superior but no written report was made at the time because he did not consider her accident serious.

Plaintiff attempted to prove that a letter dated March 31, 1977, was sent to defendant by her attorney, but defendant’s adjuster, Mrs. Greatiex, denied that any correspondence had been received by defendant pertaining to the claim until the suit papers came on June 16. This adjuster testified that upon receipt of those papers she contacted a Mr. Bodie at Security Industrial, who stated that he knew nothing about the incident and that they had no medical reports but would try to get some. Mrs. Greatiex testified that the first medical report received by defendant came on August 22, 1978.

LSA-R.S. 22:658 provides that payment of a claim shall be made within sixty days after receipt by the insurer of a satisfactory proof of loss. Failure to make such payment shall subject the insurer to a penalty and attorney’s fees “when such failure is found to be arbitrary, capricious, or without probable cause . . . ” By dismissing the suit the trial judge necessarily found that defendant’s failure was not arbitrary or capricious or without probable cause under the circumstances of this case.

Defendant’s uncontradicted evidence was that it received no notice of the accident until June 16 and no medical report until August 22. The fact that plaintiff gave notice and copies of medical reports to her employer does not subject the insurer to penalties and attorney’s fees in the absence of notice to it. Soulier v. Raymond, 177 So.2d 651 (La.App. 4th Cir. 1965). Also pertinent is Moore v. St. Paul Fire & Marine Insurance Co., 251 La. 201, 203 So.2d 548, where the court found that the insurer was not arbitrary and capricious in failing to pay where the plaintiff made no effort to furnish it with proof of his disability or to advise it of the incorrect computation of the benefits before suit was filed. In the instant case, defendant got no medical report until August 22, 1977, over two months after the suit was filed, and the 60 day period had not yet even run when the case was tried on October 18.

Plaintiff relies on Barham v. Mathieu, 198 So.2d 145, on page 149 (La.App. 1st Cir. 1967), and the statement in that opinion that notice of the accident to the employer was “tantamount to notice to the insurer.” A reading of that opinion convinces us that the statement was pure dicta and that the basis for the judgment awarding penalties and attorney’s fees was the finding that the defendant insurer itself was arbitrary and capricious and had no probable cause for failing to make payments to plaintiff. At page 150 the court concluded:

“Under the circumstances of this case, and the evidence before us of the inaction and inattention of the defendant insurance company to investigate and process this claim, even though initially reported as pneumonia, we find no manifest error on the part of the trial judge in awarding penalties and attorney’s fees.” (Emphasis supplied)

Under the facts and circumstances of the instant case we surely cannot find any manifest error on the part of the trial judge in failing to award penalties and attorney’s fees. The judgment appealed from is affirmed.

AFFIRMED.


author: GULOTTA, Judge.

text:
    NEW ORLEANS FIREFIGHTER’S ASSOCIATION OF LOUISIANA, LOCAL 632, et al. v. CITY CIVIL SERVICE COMMISSION OF NEW ORLEANS et al.
    No. 10031.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Dodd, Barker, Boudreaux, Lamy & Gardner, Louis L. Robein, Jr., New Orleans, for plaintiffs-appellees.
    Many, Lococo & Dwyer, Ralph D. Dwyer, Jr., New Orleans, for defendants-appellees.
    Michael A. Starks, Asst. City Atty., New Orleans, for defendants-appellarits.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   GULOTTA, Judge.

Defendants appeal from a judgment certifying as a class action, a suit by active and retired firefighters of the Fire Department of the City of New Orleans seeking to compel the Civil Service Commission to amend its rules to provide annual and sick leave to employees of the Fire Department based on an average fifty-six (56) hour week rather than a forty-eight (48) hour week.

The Civil Service Rules, effective June 20, 1976, provide that time and a half overtime will be paid when a fireman works in excess of twelve consecutive hours in a day or in excess of forty-eight hours a week. Rule IV, Section 10.2(c) The rules further provide that annual leave in excess of twenty-one days in a calendar year, sick leave and city holidays will not be computed in the amount of hours worked for the purpose of determining overtime. Rule IV, Section 10.4. According to plaintiffs, since a fireman is required to work a (60 hours), (60 hours), (48 hours) work week cycle (or a fifty-six average hour work week), computation for annual leave, sick leave and pensions should be based on a fifty-six hour per week pay scale and not the forty-eight hour per week as determined by the Civil Service Commission.

Plaintiffs claim that the Civil Service Overtime Rules violate both La.R.S. 33:1995, which provides firefighters entitlement to “full pay ” during sickness and incapacity, and Article X, Section 10 of the 1974 Louisiana Constitution, which provides for a “uniform pay plan ” for all city civil service employees.

The plaintiffs in this case are, 1) the New Orleans Fire Fighters Union, Local 632, which represents 99.5% of the active firemen and 250 retirees; 2) Clarence Perez, the President and Chief Executive Officer of the Union; 3) Wallace F. Weigand, Robert Fernandez and George Flanagan, active firefighters who have been classified as “on duty injured” since the implementation of the Civil Service Rule; and 4) Armand R. Sider and Frederick J. Laborde, retired firefighters who had been classified as “on duty injured” before retirement (when the rule was in effect) and who are presently receiving disability pensions. Plaintiffs allege in the class action that sick leave, annual leave and pensions of firefighters have been reduced as the result of the Civil Service Rule changes.

Defendants, on the other hand, contend that because of the “nature and complexity of the various types of benefits involved in this case”, plaintiffs’ suit is not the proper subject of a class action. Relying on Louisiana Code of Civil Procedure articles 591 and 592, defendants claim that the rights sought to be enforced by plaintiffs are not common to all members of the class and that they are not representative of all members of the class.

According to defendants, one of the plaintiffs, a union, is seeking to represent those firemen who are not members of the union. Defendants further claim retired firefighters are seeking to represent active firefighters; and conversely, active firefighters are attempting to represent retired firefighters. Defendants contend, therefore, this matter involves different legal and factual issues and consists of at.least three readily identifiable groups whose claims are separate and distinct. Under these circumstances defendants claim this matter should not be certified as a class action. We do not agree.

Louisiana recognizes only the “true” class action as distinguished from the “spurious” or “hybrid” class action in the federal system. See Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La.1975); Williams v. State, 350 So.2d 131 (La.1977). In the Stevens case the Supreme Court certified as a class action a suit brought by a retired member of the Shreveport Police Department on his own behalf and on behalf of former members of the department seeking a refund of compulsory contributions made during employment. Further, in the Williams case the Supreme Court recognized that a class action could be filed in a mass tort suit where six hundred prisoners allegedly had suffered varying degrees of damages resulting from the tort.

In State ex rel. Guste v. General Motors Corp., 354 So.2d 770 (La.App. 4th Cir., 1978), writ granted, 356 So.2d 1005 (La.1978), this court in a deceptive trade practice case concluded that the Attorney General had a right to seek injunctive relief, in a class action, where Chevrolet engines were installed in Oldsmobile automobiles and sold to Louisiana consumers in Louisiana. The Louisiana Supreme Court on April 9,1979 affirmed this court’s judgment in the General Motors suit. See Docket No. 61840 of the Supreme Court of Louisiana, 370 So.2d 477.

The majority of the Supreme Court in the recent General Motors suit, taking a “functional and pragmatic” approach, concluded that the class action was more useful than other procedures for the determination of the rights claimed by the parties. Recognizing that one thousand four hundred sixty-seven purchasers of automobiles, in separate suits, would pose a risk of inconsistent adjudications and that separate suits would unduly burden the courts, the Supreme Court permitted the use of a class action. Also considered by the Supreme Court in the determination of whether or not a class action is permissible in the General Motors suit was that the claims of members of the class appeared to be relatively small and would not be sought in individual litigation except through the class action. The Court pointed out further that the anticipated defenses were generally applicable to the entire class and the questions of law were common to class members.

Applying the criteria as set forth in Stevens, Williams and General Motors, we conclude, as did the trial judge, that the instant suit is a proper subject for a class action. Although the class action in our case is brought by active and retired firemen, it appears that the effect on both will be similar, depending on each individual’s work record and depending on the judicial determination of the validity or invalidity of the Civil Service Commission Rules.

We view the circumstances of the instant case as being more similar to the circumstances of Williams and the General Motors cases. Depending upon the judicial determination of the rule, a determination of the rights of each of the firefighters, whether retired or active, can be determined by a simple accounting procedure. Accordingly, we conclude the requirements for a class action have been met.

In reasons for judgment the trial judge stated:

“The court believes that the suit herein is a bona-fide class action. The City of New Orleans argues very strenuously that the matter of proof in this class action would be extremely difficult. This court does not believe it would be any more difficult to try than if one suit had been filed and the other parties filed each separate suit and the matters were then consolidated.”

We agree.

Furthermore, we find no merit to the city’s oral argument that if time and a half is paid for work hours in excess of 48 hours under the new Civil Service Commission Rule, and the rule was subsequently held invalid, a fireman could be required to refund to the city the amount overpaid in wages, without individual representation of that fireman.

This question addresses itself to whether or not the Constitutional Due Process requirements of notice and opportunity to be heard will have been met in a class action suit. It is true that in any class action suit the judgment will bind all members of the class whether or not they were served or joined as parties. LSA-C.C.P. art. 597. As was stated by the Supreme Court in Williams, supra, despite lack of statutory requirements of notice to members of the class sought to be represented, due process requires that at some stage of the proceedings, preferably in the early stages, all identifiable prospective members of the class must “. . .be given reasonable notice of the pendency of the litigation and the opportunity to opt out of or join in the class action. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). See also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).” Because of these requirements, as set forth in Williams, (which presumably will be met) we reject the city’s inferential due process argument.

The judgment is affirmed.

AFFIRMED.

      . Rule IV, Section 10.2(c) reads:
      “Overtime compensation will be paid to nonexempt uniformed fire personnel who work a 48 hour week at time and one-half the employee’s hourly rate to apply for all hours worked in excess of 12 consecutive hours in a shift or 48 hours in a week.”

      . Rule IV, Section 10.4 reads:
      “Annual leave in excess of 21 days in a calendar year, sick leave and official city holidays will not be counted as hours worked toward computation of overtime at the end of the regular work week; however, civil leave will be counted toward overtime computation at the end of the regular work week.” (Amended, 7/8/76)

      . R.S. 33:1995 reads:
      “Every fireman if the employee of a municipality, parish or fire protection district to which this Sub-part applies, shall be entitled to full pay during sickness or incapacity not brought about by his own negligence or culpable indiscretion for a period of not less than fifty-two weeks. As amended Acts 1962, No. 132, § 1.”

      . Article X, Section 10 of the 1974 Louisiana Constitution states:
      “Section 10. (A) Rules. (1) Powers. Each commission is vested with broad and general rule-making and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan;

      .LSA-C.C.P. articles 591 and 592 read as follows:
      “Art. 591. Prerequisites.
      A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is:
      (1) Common to all members of the class; or
      (2) Secondary, in the sense that the owner of a primary right refuses to enforce it, and a member of the class thereby becomes entitled to enforce the right.”
      “Art. 592. Representation.
      One or more members of a class, who will fairly insure the adequate representation of all members, may sue or be sued in a class action on behalf of all members.”

      . LSA-C.C.P. article 597 reads as follows:
      “Art. 597. Effect of judgment.
      A definitive judgment on the merits rendered in a class action concludes all members of the class, whether joined in the action or not, if the members who were joined as parties fairly insured adequate representation of all members of the class.”


author: BOUTALL, Judge.

text:
    The TRAVELERS INDEMNITY COMPANY v. Dr. Norman S. HUNT.
    No. 10040.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied June 11, 1979.

      Ignatz G. Kiefer, New Orleans, for the Travelers Indemnity Co., plaintiff-appellee.
    Glenn L. Morgan, New Orleans, for Dr. Norman S. Hunt, defendant-appellant.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is a suit to recover sums due under indemnity agreement.

Dr. Norman S. Hunt, appellant, entered into a general agreement of indemnity with Travelers Indemnity Company, Appellee, in consideration for appellee’s agreement to provide bonds in connection with construction work undertaken by Trans-Gulf Construction, Inc. One provision of the agreement provided that appellant would indemnify appellee against every claim incurred relating to the issuance of the bonds. This action was brought by Travelers to recover amounts allegedly owed under the contract in the nature of attorney’s fees resulting from the defense of claims. The trial court awarded judgment in favor of Travelers in the amount of $16,777.87. From this judgment, Dr. Hunt appeals.

Appellant’s first contention is that part of the claim is barred by prescription. The total of the attorney’s fees from which Travelers sought indemnity is $17,252.87, although the judgment did not award the entire amount. This bill was tendered to Dr. Hunt in two parts, however, with $10,-852.87 of the bill being sent in 1973, the remainder in 1976. Appellant contends that the cause of action on that part of the bill tendered in 1973 has prescribed since causes of action by attorneys for their fees prescribe in three years. Civil Code Article 3538. This is, however, not a claim for attorney’s fees, but rather a claim for indemnity under contract. Claims for indemnity under Louisiana law are prescribed in ten years. Civil Code Article 3544; Edward Levy v. New Orleans Public Belt Railroad, 148 So.2d 580 (La.1963). We therefore find that the claim is not barred by prescription.

Appellant’s second contention relates to one particular claim in which the attorney’s fees totaled $10,140.00, while the value of that claim, was only $2,184.23. Attorneys for Travelers finally prevailed in the Supreme Court after having judgment against them handed down by the District Court and affirmed by the Court of Appeals. It is clear that under the agreement in this case the final decision on whether to settle or to litigate any claim is reserved exclusively to Travelers. This contention of appellants then seems to be based on the theory of abuse of rights, in other words, that the contract should not be judicially enforced if in light of all the circumstances, the action by the appellee constitutes an abusive exercise of its contractual right. See Illinois Central Gulf Railroad Company v. International Harvester Company, 368 So.2d 1009 (La.1979); Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1977).

One criterion upon which the doctrine has been applied requires an examination of the purpose for which the right is granted. If the holder of the right exercises the right for a purpose other than that for which the right was granted, the right may have been abused. See Illinois Central, supra. This reasoning appears to be the basis for appellant’s argument. He contends that Travelers defended this claim for its own benefit and not to defend his interest. He further contends that the claim was not settled in reliance on the legal advice of Travelers’ attorneys and that he was not advised of the large fees required to appeal the case to both the Court of Appeals and the Supreme Court.

The evidence, however, convinces us that no abuse of right was present in this case. Herschel Abbott, the attorney who handled the case for Travelers, testified that Hugh Uhalt, an attorney for Dr. Hunt, attempted to settle the claim before trial. This was the general procedure followed and Uhalt had in fact settled a large percentage of the claims in this manner. On this occasion, he was unsuccessful and the case went to trial. After an unfavorable judgment, Abbott testified that he discussed the case with Uhalt and told him that if Dr. Hunt was not going to pay the judgment, Travelers would prosecute an appeal. The same communication took place after the Court of Appeal affirmed the judgment.

Uhalt testified that he did not approach Dr. Hunt about settlement of this case because “he, (Hunt) had just paid off a lump of money on one or another of the claims and I didn’t want to be the bearer of ill tidings to him again.” Uhalt also admitted to being aware of the course of events throughout this case. In view of this testimony, it is evident that the appellants could have settled this case at any time, but did not. Further, although Dr. Hunt testified that Uhalt had no authority to settle claims, Travelers was not unjustified in believing that he did have authority in view of the fact that he had done so in numerous instances, occasionally without consulting Dr. Hunt.

We therefore find that the appeal of the adverse judgment by Travelers did not constitute an abuse of a right. The evidence simply does not indicate that Travelers pursued this litigation for its own purposes while misleading appellants as to the ultimate cost, but rather that the actions of appellants’ attorney left Travelers with no other choice than to appeal. The trial judge ruled in accordance with the evidence and we affirm.

For all of the above reasons, the judgment below is affirmed at appellants’ cost.

AFFIRMED.

      . A provision of the indemnity contract reads as follows:
      “The Company shall have the exclusive right to determine for itself and the Indemnitors whether any claim or suit brought against the Company or the Principal upon any such bond shall be settled or defended and its decision shall be binding and conclusive upon the In-demnitors.”

      . French courts have generally rejected this criterion, however and refuse to apply the doctrine in these cases. See Cueto-Rua, Abuse of Rights, 35 La. Law Review 965 (1975, at 1002.)


text:
    Elizabeth DOYLE v. John T. DOYLE.
    No. 10047.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.

      Berrigan, Strain & Coady, James R. Strain, Jr., Slidell, for plaintiff-appellant.
    Craig J. Cimo, Gretna, for defendant-ap-pellee.
    Before GULOTTA, BOUTALL and SCHOTT, JJ. •
   GULOTTA, Judge.

Plaintiff, mother of two children, ages seven and five, appeals from the dismissal of her rule for custody of the children. We affirm.

On August 9, 1976 a default judgment of divorce had been granted in favor of the plaintiff-mother. The decree also granted the custody of the minor children to the defendant-father. Thereafter, pursuant to a petition for transfer of custody filed by the mother on April 7, 1978, the trial judge, following a contradictory hearing on July 18, 1978, permitted the custody of the children to remain with the father. The mother was allowed visitation rights.

It is from the judgment denying the plaintiff-mother’s request for transfer of custody that this appeal is taken. Relying on the case of Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir., 1976) plaintiff claims the trial judge erroneously considered the custody decree in favor of the father as a “considered” judgment placing the “double burden” requirement upon her in order for her to obtain a change of custody. According to plaintiff because no evidence was taken, nor a hearing held, in connection with the original custody decree and because she voluntarily surrendered the children to the father at that time, she should not be “saddled” with the double burden. Plaintiff claims the matter should be heard as an original custody hearing.

Assuming (but not deciding) the correctness of plaintiff’s argument, we nevertheless conclude that the trial judge did not err in dismissing plaintiff’s petition for transfer of custody. LSA-C.C. article 157 as amended by Act 448 of 1977 states, in pertinent part:

“A. In all cases of separation and divorce, permanent custody of the child, or children shall be granted to the husband or wife, in accordance with the best interest of the child or children . . ”

In Monsour v. Monsour, 347 So.2d 203, (La.1977) the Supreme Court reiterated that the primary consideration in any custody award is the welfare of the child. Applying the sound and simple rule as set forth in the Code and by the Supreme Court, to the facts in our case, we are led to conclude that the trial judge wisely permitted custody to remain with the father.

Plaintiff readily admits that the living conditions at the home of the remarried father are not deleterious to the children’s welfare. The testimony of the father and the step-mother is strongly indicative of the care, affection, love and interest that they have in the welfare of the seven year old girl and the five year old retarded child. These facts are not disputed by the mother. However, she contends, with support from the record, that her living conditions with her new husband are equally conducive to the welfare and best interest of the two children; and that at the time of the voluntary surrender of the custody to the father she was not financially able to care for the children but that her circumstances with her new husband have markedly changed for the better.

Considering the stable development of the children in the environment of the father’s home and in the state school, as evidenced by undisputed testimony in the record and considering also the fact that the custody of these children has remained with the father from the time of the custody decree and judgment of divorce in August 1976 to the time that the matter for transfer of custody was heard on July 18, 1978 (approximately a period of two years), we cannot say the trial judge abused his discretion in permitting the father to retain custody.

Finally, we find no merit to the mother’s oral argument that “all things being equal” the “maternal preference” rule should be applied. This rule is not absolute. Custody is determined depending upon the circumstances in each case. In Fulco v. Fulco, 254 So.2d 603, 259 La. 1122 (1971) the Supreme Court set forth guidelines in custody matters. These guidelines are that, 1) the paramount consideration in determining custody is always the welfare of the children; 2) as a general rule, it is in the best interest of the children to grant custody to the mother, especially children of tender years; 3) a party seeking to change custody when a considered decree of permanent custody had been granted bears a heavy burden of proving that the continuation of the custody is so deleterious to the children as to justify removing them from the environment to which they were placed and accustomed; and 4) upon appellate review the determination of the trial judge is entitled to great weight. In 1976, in the case of Stevens v. Stevens, supra, the First Circuit recognized that the proper guideline is the welfare and best interest of the children. Our brothers on that circuit went on to say that the maternal preference rule is “explanatory of, rather than distinct from, this general principle and, in most cases, follows naturally therefrom.” See also Jones v. Jones, 344 So.2d 414 (La.App. 1st Cir. 1977). Thereafter, in June 1977, in the case of Monsour v. Mons-onr, supra, the Supreme Court reiterated that the “primary consideration in any custody award is the welfare of the child.” This language was incorporated in Civil Code article 157 as amended by Act 448 of 1977 (effective September 9, 1977), supra.

The First Circuit again had the opportunity to speak out on the maternal preference rule in the ease of Delatte v. Delatte, 358 So.2d 974 (La.App. 1st Cir., 1978). In that case the Court stated that although it has been the rule that a mother has a paramount right to the custody of children absent exceptional circumstances, the more recent view is that the paramount consideration is always the best interest of the child.

In Vidrine v. Demourelle, 363 So.2d 943 (La.App. 3rd Cir., 1978) the Third Circuit looked upon the maternal preference rule as a presumption that the best interest of the child will be better served by placing them in the custody of the mother; however, this presumption is rebuttable and must yield to convincing evidence that the greater advantage of the child will be served by placing the child with the father.

This Court in State ex rel. Killman v. Gurley, 354 So.2d 755 (La.App. 4th Cir., 1978), writ denied, 356 So.2d 1004 (La.1978) indicated that the maternal preference rule is of greater importance in an initial custody ease or in a case where children are sought to be taken from a mother and given to the father than in a case where the children are sought to be taken from the father and placed with the mother.

Our consideration of the Civil Code article and the recent jurisprudence leads to a conclusion that the maternal preference rule is an important element and an aid in the determination of the best interest of the child; however, it is not an absolute rule nor an overriding consideration in the determination of custody. As has been so frequently stated as not to require citation, each custody case must be decided on its own facts and circumstances.

Applying the jurisprudence as we understand it, we find no abuse of discretion in the trial court’s determination that the best interest of the children is served by allowing custody to remain with the father. The judgment is affirmed.

AFFIRMED.

      . At the time of the hearing, the five year old brain damaged child had been placed in a residential school for retarded children in Columbia, Louisiana.

      . The record does not disclose whether evidence was taken regarding the custody part of the decree or whether the decree was based upon stipulation and consent of the parties.

      . One seeking to change the custody must show not only that the living conditions of the children are detrimental to their best interest, but also that he (or she) can provide better and more advantageous living conditions. Decker v. Landry, 227 (La.) 603, 80 So.2d 91 (1955); Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969); Holmes v. Holmes, 203 So.2d 897 (La. App. 4th Cir., 1967).


author: BEER, Judge. REDMANN, Judge,

text:
    Charles BRIDGES, Individually and on behalf of his Wife, Karen Bridges, and Karen Bridges v. ALLSTATE INSURANCE COMPANY and Barbara S. Truxillo.
    No. 10049.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.

      James G. Kambur, Preston G. Sutherland, New Orleans, for plaintiffs-appellants.
    Murphy & Simon, David T. Bowman, New Orleans, for defendants-appellees.
    Before REDMANN, BEER and GARRISON, JJ.
   BEER, Judge.

This suit for personal injuries and property damage arises from a March 8, 1977 automobile collision between vehicles driven by plaintiff-appellant, Charles Bridges, and Barbara Truxillo. Bridges was executing a right turn from Agriculture Street to Republic Street. Truxillo had stopped several feet past the stop sign on Republic Street. As Bridges turned, the collision occurred.

Jury trial resulted in a verdict in favor of Karen Bridges, a guest passenger in her husband’s car, but the jury dismissed the claim of Charles Bridges in his own behalf. On appeal, Mr. and Mrs. Bridges allege improper jury instructions, incorrectness of the apparent jury finding of contributory negligence on the part of Charles Bridges, prejudicial comments by the trial judge, and insufficient quantum of the award.

There was a timely objection to the jury instructions on the ground that the court had failed to specifically instruct the jury concerning an alternative to the standard instruction' regarding the alleged contributory negligence of the driver, Bridges. However, the instructions, when considered as a whole, clearly provide that Charles Bridges should recover unless proven to have been contributorily negligent, with such contributory negligence being a proximate cause of the accident. Furthermore, the record fully supports the jury verdict.

Charles Bridges testified that the collision occurred in the middle of the intersection and claimed that Truxillo’s car was still moving. He first saw the other car as they collided though there was nothing blocking his view.

While it is apparent that Bridges had the right of way, the fact that he did not see the other vehicle, with nothing to block his vision, until the cars collided can support the jury’s finding that Bridges was contributorily negligent.

Though several remarks by the trial judge are now claimed to be prejudicial by able counsel for appellant, no objections were timely made thereto, and, thus, no proper basis for our consideration here exists. Wilson v. Virgademo, 258 So.2d 572 (La.App. 4th Cir. 1972).

The record supports the finding that Mrs. Bridges suffered a cervical sprain. Appellant disputes the correctness of the $2,000 award and believes it should be increased to $3,500. We find this contention wholly without merit.

The judgment is affirmed, at appellants’ cost.

AFFIRMED.

REDMANN, Judge,

dissenting in part.

The judgment in favor of Mrs. Bridges against Mrs. Truxillo should be reversed. That Mrs. Truxillo had edged forward five feet and was still moving at the time of collision, after stopping for her stop sign at this intersection of two very narrow streets, was not a eause-in-fact of the accident (as it might have been had Mr. Bridges been traveling straight through the intersection across Republic street). Mr. Bridges would have struck her whether or not she had moved forward, because Republic street was too narrow to allow a right turn from Agriculture street after Mrs. Truxillo’s car had reached the stop sign.


author: STOULIG, Judge. LEMMON, Judge,

text:
    Jerrald C. FLANNIGAN, Individually and as the Administrator of the Estate of his son, Terry J. Flannigan, and Terry J. Flannigan v. Wayne VALLIANT, Ray Valliant, and State Farm Fire and Casualty Company.
    No. 10061.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied June 11, 1979.

      Gerald P. Aurillo, Metairie, for plaintiffs-appellants.
    Montgomery, Barnett, Brown & Read, Daniel Lund and Edward A. Rodrigue, Jr., New Orleans, for Ray M. Valliant and Wayne Valliant, defendants-appellants.
    Porteous, Toledano, Hainkel & Johnson, Michael K. Fitzpatrick, New Orleans, for State Farm Fire and Casualty Company, defendant-appellee.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Terry J. Flannigan, has appealed a summary judgment dismissing his suit against State Farm Fire and Casualty Company (State Farm), the homeowner’s insurer of Ray Valliant, for damages allegedly inflicted on him through a battery committed by Wayne Valliant, the insured’s minor son. Also appealing the judgment of dismissal were codefendants Wayne Valliant and Ray Valliant.

The insurer, State Farm, was dismissed on a finding that the policy did not afford coverage to the son because he did not reside with his father. The . exclusionary provision stipulates:

“When used in this policy the following definitions apply:
(a) ‘Insured’ means
* * st* * * *
(2) if residents of the Named insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any insured * * *

The alleged battery occurred on July 11, 1972 and at this time Wayne’s mother, a resident of Shreveport, Louisiana, had legal custody of her son conferred in a judgment of divorce. After Wayne left his mother’s home in 1970 or 1971, he first stayed with his sister and her husband, Donna and Mike McFarlain. Although he did not reside with his father, he gave Ray Valliant’s address to school officials so that he could attend school in the district in which the father resided. He remained with his sister until February or April of 1972, only seeing his father occasionally on Sundays. Later he moved in with his father for one or two months before moving in with a friend Buster Anderson. When he left his father’s apartment, he took all his belongings and had no intent to ever reside there again. At the time of the battery, he was renting a room for $10 per week from Pam and Wayne Sipher.

The status of a minor as a resident of a household for insurance coverage purposes was discussed at length in Taylor v. State Farm Mutual Auto. Ins. Co., 248 La. 246, 178 So.2d 238 (1965). Summarizing the principles applicable, the Supreme Court pointed out domicile does not have the same meaning as residence and that while the domicile of a minor is technically that of his father until majority (unless changed by law), this does not mean the minor’s residence is always the same as his domicile. Further, when an insurance policy affords coverage to residents of a household, it does not necessarily include “legal residents” in its definition.

For insurance coverage purposes, the Taylor court cited two interpretations of the meaning of “resident of a household,” one is when the resident lives under the same roof and the second is when the family member is temporarily absent. (See cases cited therein at page 243.)

Implicit in the concept of maintaining a residence in a household even though there is a temporary absence is the freedom of the resident to return without making special arrangements to do so and an intent to return. In Taylor, the facts established the minor in question, though absent from his parents’ household, was free to return at will; in fact the court termed his absence temporary.

Applying the concepts enunciated in the Taylor case, we conclude that Wayne Valliant was not residing with or temporarily absent from his father’s residence. This conclusion is based upon the statements made by the son in his deposition. He stated he lived with his father for “a little better than a month” and after leaving never moved back with him; he left voluntarily; removed all of his personal belongings when he left his father’s apartment; was strictly on his own and not subject to his father’s authority; did not consider his father’s apartment as his own; did not have a key to his father’s apartment and “could not come and go as he pleased” after he left; his leaving was his own decision; and finally at the time of the incident he was living with Pam and Wayne Sipher. Therefore, we hold that Wayne was not residing with his father at the time of the alleged battery and is not an insured under the policy.

Appellants argue that the policy affords Ray Valliant general liability coverage; therefore the insurer should not be dismissed because it might ultimately be responsible if the insured is held vicariously liable for his minor son’s tort.

C.C. arts. 237 and 2318, when read together, impose absolute liability on the parents of a minor who either negligently commits a tort or causes damages to another. The liability is vicarious and is based on the civilian concept of strict parental authority. Deshotel v. Travelers Indemnity Company, 251 La. 567, 243 So.2d 259 (La.1971). See also 49 T.L.R. 1194 “Tort-Damage Caused by Minors Under the Age of Discretion — Strict Vicarious Liability Imposed on Parents” (1975). This liability does not attach to the parent (1) if the child does not reside with him when the damage to another occurs (Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 [1968]); or (2) if the parent lost custody of the child by a judgment in a suit for separation for divorce. In this case the alleged minor tort-feasor was not under the authority of his father because custody was vested in his mother and his residence was not that of his father either in law or in fact. Watkins v. Cupit, 130 So.2d 720 (La.App. 1st Cir. 1961).

We conclude there is no genuine issue of material fact and that as the record is presently constituted the insurer should be dismissed as a defendant as a matter of law.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

LEMMON, J., dissents in part and assigns reasons.

LEMMON, Judge,

dissenting in part and assigning reasons.

If an insurance policy provides coverage for the named insured’s liability, the insurance company may not obtain dismissal from the litigation without having its named insured dismissed.

State Farm moved for a summary judgment on the basis that its policy did not provide coverage to either Ray Valliant, its named insured, or to Wayne Valliant, his son.

I agree that the policy does not provide coverage to Wayne Valliant under the undisputed facts outlined in the majority opinion. Therefore, State Farm is entitled to a partial summary judgment as to its coverage of Wayne Valliant.

However, State Farm’s policy unquestionably provides coverage to its named insured for his vicarious liability, which is still at issue in the litigation. It is premature and improper to dismiss an insurer on the basis that its insured is not liable, when its insured’s liability has not yet been determined.

I would reverse the judgment (the effect of which is to relieve State Farm of liability if Ray Valliant is ultimately held to be vicariously liable). State Farm can then join with Ray Valliant and either move for summary judgment or defend the suit on the merits, on the basis that the facts of the case do not establish vicarious liability for Wayne Valliant’s torts.

Until Ray Valliant’s potential vicarious liability is decided, it is improper to dismiss the party that insures that potential liability-

      . Terry Flannigan, a minor when the alleged battery occurred, was substituted as plaintiff in place of his father upon attaining majority.


author:
SAMUEL, Judge.
      SCHOTT, Judge,

text:
    Robert C. STUART v. Lawrence N. ARTHUR, Pat O’Brien’s Bar, Inc., New Orleans Police Department, Clarence B. Giarrusso, Superintendent of Police, Mayor Moon Landrieu and City of New Orleans.
    No. 10072.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Charles R. Maloney, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., New Orleans, for Pat O’Brien’s Bar, Inc., defendant-appellee.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff appeals from a summary judgment dismissing his suit against Pat O’Brien’s Bar, Inc. The suit, for personal injuries allegedly inflicted on plaintiff by Lawrence N. Arthur at Pat O’Brien’s Bar, named ■ Lawrence N. Arthur, Pat O’Brien’s Bar, Inc., New Orleans Police Department, Clarence B. Giarrusso, Superintendent of Police, Mayor Moon Landrieu, and the City of New Orleans, as defendants.

The petition alleges Arthur was a police officer employed by the New Orleans Police Department, the City of New Orleans and Pat O’Brien’s Bar, Inc.; that on December 30, 1974 a waiter at Pat O’Brien’s asked plaintiff to speak to Arthur. Arthur requested plaintiff to leave the bar and without warning struck plaintiff and dragged him 75 feet to the entrance, causing the injuries in suit.

Pat O’Brien’s filed a motion for summary judgment. In support of its motion, mover relied on an affidavit of George D. Oehsner, III, vice president of the corporation, stating Arthur was not employed at Pat O’Brien’s at the time of the incident, nor was he under the direction of the corporation.

In addition to the allegations of his petition, plaintiff relies on the answers to sworn interrogatories on behalf of all defendants (other than Pat O’Brien’s Inc. but including Arthur) that “Lawrence N. Arthur was a member of the New Orleans Police Department but was on a private employment job for the benefit of Pat O’Brien’s at the time of the alleged incident”, and the deposition of Arthur indicating he entered the O’Brien establishment when a manager or assistant manager of the bar requested his assistance with the recalcitrant patron.

In pertinent part Article 966 of the Code of Civil Procedure provides:

“The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. Art. 966.

In Hughes v. Eagle Trucking Co., La. App., 340 So.2d 1067, 1070, the court had this to say about summary judgment:

“[1] Summary judgment process, which deprives a litigant of trial on the merits is not a substitute for trial. Magie v. Patio Motel, Inc., 301 So.2d 381 (La. App. 4th Cir. 1974).
[2] Summary judgment may not lie in any instance where a genuine issue of material fact remains unresolved. Carney v. Hartford Accident and Indemnity Co., 250 So.2d 776 (La.App. 1st Cir. 1970).
[3] In disposing of a motion for summary judgment, it is not the function of the court to determine the merits of issues raised, but merely to ascertain whether there is a genuine issue of material fact. Acadia-Vermilion Rice Irrigating Co. v. Broussard, 185 So.2d 908 (La. App. 4th Cir. 1966).
[4] The party moving for summary judgment bears the burden of establishing the complete absence of a genuine issue of material fact. Warden v. Southwest Louisiana Hospital Association, 300 So.2d 590 (La.App. 3rd Cir. 1974).
All doubt must be resolved against the granting of a motion for summary judgment and in favor of trial on the merits to decide disputed material facts. Hobbs v. Fireman’s Fund American Insurance Companies, 293 So.2d 608 (La.App. 3rd Cir. 1974).
[5] Where a genuine issue of material fact exists, summary judgment does not lie even though the trial court entertains grave doubt concerning respondent’s ability to establish disputed facts. Butler v. Travelers Insurance Co., 233 So.2d 271 (La.App. 1st Cir. 1970).”

Thus, in this case there is a genuine issue of material fact. If Arthur was an employee of Pat O’Brien’s at the time of the incident in suit, there could be liability on the part of the latter defendant. And, conceivably, Pat O’Brien’s could be liable even if Arthur was not its employee at that time.

For the reasons assigned, the judgment appealed from is annulled and set aside, and the case is remanded to the trial court for further proceedings consistent with law and with the views herein expressed.

ANNULLED; SET ASIDE; AND REMANDED.

SCHOTT, Judge,

concurring.

Appellee missed the mark in its attempt to gain a summary judgment because it failed to eliminate the issue of fact created by the answer given to Interrogatory No. 12 a. by the City, the Police Department and their officials to the effect that Lawrence N. Arthur was “on a private employment job” for appellee when the incident occurred. Presumably, appellee can plug this small hole in its ease for a summary judgment by some additional documentation and then file a new motion for summary judgment, but until or unless such action is taken an issue of material fact remains.

      . It also answered in the form of a general denial, averring negligence and alternatively negligence and assumption of the risk on the part of plaintiff.

      . By Robert K. Tracy, Assistant City Attorney, for the New Orleans Police Department, City of New Orleans, Clarence B. Giarrusso, Superintendent of Police, Mayor Moon Landrieu.and the City of New Orleans.

      .See, for example, Borne v. Bourg, La.App., 327 So.2d 607.


author: STOULIG, Judge.

text:
    Michael WELLS, Jr., Individually and as Administrator of his Minor Son William Michael Wells and Richard Friedman, Sr., Individually and as Administrator of his Minor Son Richard Friedman, Jr. v. SECURITY INSURANCE COMPANY OF HARTFORD, and/or Security Textron, Security Corporation Subdivision of Textron, Inc., the Connecticut Indemnity Company, Fire and Casualty Company of Connecticut, Admiral Insurance Company, Metropolitan Assurance Company and Robert Calogero.
    No. 10077.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.

      Bendana & Carlton, Wayne H. Carlton, Jr., Orlando G. Bendana, New Orleans, for plaintiff s-appellants.
    Salvador Anzelmo, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

This is an appeal from a summary judgment dismissing the suit brought by plaintiffs Michael Wells, Jr., and Richard Friedman, Sr., against lessor-owner Robert Ca-logero, arising from injuries their minor children sustained when a gas water heater allegedly exploded in the premises 7832 Dorsett Drive rented by the Michael Wells, Jr., family.

Summary judgment was rendered on the strength of an affidavit by Robert Calogero asserting he was not the owner of the property in question and an unrecorded authentic act of sale dated February 20, 1969, which recites Robert G. Calogero sold the leased property to Maurice E. Landrieu, Pascal F. Calogero, Jr., and Charles A. Kronlage, Jr. A certificate issued by the Office of the Register of Conveyances for the Parish of Orleans dated June 29, 1977, indicates Robert Calogero is the record owner of this property. Stated another way, the authentic act was never recorded, thus Robert Calogero remains the owner of record.

C.C.P. art. 966 outlines the procedure for moving for summary judgment and stipulates:

“ * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” (Emphasis added.)

In interpreting this language, our jurisprudence places a heavy burden on the mover to demonstrate absence of factual dispute on any relevant issue and holds that any doubt should be resolved in favor of the respondent to the motion. Champagne v. Travelers Insurance Co., 276 So.2d 914 (La. App. 4th Cir. 1973).

We think there is a significant factual issue, namely, ownership of the leased premises at the time of the incident. Appellee suggests the notarial act transferring the premises, coupled with defendant’s affidavit, should suffice to resolve any question of ownership. We would agree had the sale been recorded in the conveyance office, but some eight years after the purported transfer, Robert Calogero still appears as record owner. This alone is sufficient to warrant our concluding that the ownership is still an unresolved factual issue. Not all authentic acts are what they appear. For example, a counter letter may modify declarations made by parties in an authentic act.

Appellee argues appellant failed to file a countervailing affidavit to put the ownership question at issue in response to the one filed by Calogero. He argues that under our decision in Lewis v. Pailet, 349 So.2d 338 (La.App. 4th Cir. 1977), appellant is not entitled to reversal because he could not rely on speculation and assertion without some affirmative response to the affidavit. As we stated, the conveyance certificate is sufficient to make ownership a factual issue. C.C.P. art. 966 does not make mandatory the filing of countervailing affidavits and plaintiff is entitled to explore the question of true ownership by issuing subpoenas for documents that might support his positions or through cross-examination of the parties involved.

In reaching this result we do not hold that, the Public Records Doctrine (R.S. 9:2721 et seq.) is applicable or affords plaintiff in this case any protection. We simply conclude that where the public records contradict the assertions of a defendant with a substantial interest there is a factual dispute.

For the reasons assigned, the judgment appealed from is reversed and this matter is remanded for further proceedings in the district court.

REVERSED AND REMANDED.

      . Michael Wells, Jr., did not appeal from the adverse judgment dismissing his suit against Robert Calogero, and therefore only the merits of the appeal by Richard Friedman, Sr., is before us.

      . The consideration for said sale was $24,-395.09, of which amount $719.66 was paid in cash and the balance by the assumption of an outstanding mortgage of $23,675.43.


text:
    Richard E. SCANLAN v. MUTUAL BENEFIT LIFE INSURANCE COMPANY.
    No. 10078.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.

      Denis A. Barry, New Orleans, for plaintiff-appellee.
    Phelps, Dunbar, Marks, Claverie & Sims, Eugene R. Preaus, New Orleans, for defendant-appellant.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   GULOTTA, Judge.

Defendant, the disability insurer under a group policy with plaintiff’s employer, Bernard Lumber Company, appeals from a judgment awarding disability payments, penalties, attorney’s fees and interest.

Although belatedly tendering to plaintiff the accumulated amount of the monthly designated disability payment under the policy, defendant contends that the trial judge erroneously awarded statutory penalties and attorney’s fees. According to defendant, because plaintiff failed to produce medical evidence from the treating physician to support his claim that the disability commenced subsequent to the effective date of the policy; and because plaintiff failed to submit medical evidence from the treating physician that a disability did, in fact, exist; and because plaintiff refused to acknowledge defendant’s entitlement to reimbursement for workmen compensation received or awarded to plaintiff as provided in the disability policy, defendant contends the delay encountered in the processing of plaintiff’s claim was reasonable.

Defendant further argues, in seeking to be exonerated from the payment of penalties and attorney’s fees, that because the policy states that it was “delivered in Mississippi and is governed by it’s laws” the trial judge erroneously applied the Louisiana Revised Statute R.S. 22:657(A) as a basis for awarding penalties and attorney’s fees.

Defendant claims also the trial judge erred in ordering disability payments without deducting for workmen’s compensation benefits (in contravention of the provisions of the policy) when plaintiff had been awarded workmen’s compensation benefits which judgment was on appeal.

Finally, defendant contends the trial judge erred in awarding interest on each past monthly disability payment from its due date until payment was tendered (in August 1977) and also erred in awarding interest on penalties since plaintiff had not prayed for such interest.

Considering defendant’s contentions as presented, we find no merit to the claim that the delay for the tender of the disability payments was reasonable. Plaintiff’s attorney testified that *he attached to a November 10, 1976 letter to the insured the completed claim forms, together with the completed medical report from the treating physician. That report establishes the disability as of June 16, 1976 with a date of treatment commencing in the latter part of 1974. As early as January 17, 1977 the defendant insurer was furnished by its insured a copy of plaintiff’s attending physician’s report.

Although defendant claims it had not been furnished with a copy of the report in the attorney’s November 10th letter, they were clearly aware of and had in their possession, a copy of that report by January 17, 1977. Despite defendant’s claim of lack of cooperation on the part of plaintiff’s physician by his failure to respond to repeated requests for information and that this caused the delay in processing the claim, defendant made no attempt to have an examination made of plaintiff by its own physicians.

Furthermore, in the deposition of plaintiff’s attending physician taken as late as June 30, 1977, the doctor reiterated information contained in the earlier report, which was in the possession of defendant. The doctor further added in that deposition that a report had been furnished to defendant on January 27, 1975 setting forth that plaintiff had undergone surgery of the back on November 23, 1974 for a herniated disc. This report was furnished to defendant in connection with a disability claim made by plaintiff in 1974 for which payments were made by defendant. Clearly, information relating to plaintiff’s back problems resulting in his ultimate disability was in possession of defendant in 1974. Although plaintiff testified he received benefits from defendant in 1974 as a result of a disability at that time, the senior group claims examiner for defendant stated that she was not aware that the defendant paid benefits in 1974 to the plaintiff.

In view of the fact that defendant had in its possession the medical report from plaintiff’s attending physician as early as November 1976 and either had knowledge of or was charged with knowledge of plaintiff’s back operation and disability payments in 1974, we conclude, as did the trial judge, that a defense based upon plaintiff’s failure to furnish medical support of his claim, is without merit.

We further find no merit to defendant’s contention that because of plaintiff’s failure to acknowledge defendant’s right to reimbursement for any workmen’s compensation received, defendant’s delay in making disability payments was reasonable. The policy clearly provides for a reduction in the disability payment by the amount of compensation which the employee receives; nevertheless, no sound reason exists for defendant to have withheld payment of the difference between the monthly disability payment and plaintiff’s monthly entitlement to workmen’s compensation. Under the policy provisions plaintiff was entitled to receive $689.00 per month. Plaintiff’s entitlement to workmen’s compensation amounted to approximately $384.00 per month, based on a weekly payment of $85.00. Despite the dispute surrounding plaintiff’s failure to acknowledge reimbursement, defendant had the clear responsibility of making payments of the monthly difference after having been placed on notice, in November 1976, of the disability.

The judgment fails to allow defendant credit for the workmen’s compensation benefits awarded to plaintiff. However, plaintiff acknowledges that because the litigated claim for compensation benefits has now resulted in a final judgment awarding benefits, defendant is entitled to a credit and the trial court’s judgment in this case should be amended to reflect that credit.

We reject defendant’s further contention that because the policy states that it “is delivered in Mississippi and is governed by its laws” Louisiana statutory penalties and attorney’s fees are inapplicable. In our case defendant, Mutual Benefit, a New Jersey company, issued the master policy to the Trustees of the Biddle Purchasing Company (a multiple employers’ insurance trust, headquartered in Mississippi and administered by Whitney Associates.) The plaintiff’s employer, Bernard Lumber Company, a Louisiana based company, is a participant in the trust’s group insurance coverage. The plaintiff resides and was employed in Louisiana, and more importantly, he sustained his disability during his Louisiana employment.

Furthermore, plaintiff was presumably “issued” only a certificate under the Master Policy by his Louisiana employer and in Louisiana indicating his group long term disability coverage with Mutual. There exists no evidence that this certificate had any reference to the fact that plaintiff would be bound by Mississippi law, nor that he was informed that he could exercise rights only under Mississippi laws.

In Cook v. AAA Worldwide Travel Agency, 360 So.2d 839 (La.1978) Louisiana members of an overseas tour group filed a breach of contract suit in a Louisiana court. Defendant claimed that the language of the travel brochure sent to plaintiffs stated that any claims which may arise under the agreement shall be settled by arbitration in the State of Minnesota. The Supreme Court in rejecting defendant’s argument stated:

. there is no evidence in the record that plaintiffs ever read the brochure, had terms in the brochure pointed out to them or brought to their attention, or in any way agreed to the arbitration clause contained in the brochure.”

In our case, when we consider that plaintiff, a Louisiana resident, was injured in this state while employed by a Louisiana employer, together with defendant’s failure to show that plaintiff had any knowledge of the exclusive application of Mississippi law, we conclude that the Louisiana statute on penalties and attorney’s fees is applicable.

We find no error in the judgment awarding interest on each past disability payment from its due date until defendant commenced payments in August 1977. Plaintiff’s salary was paid through August 31, 1976 and disability payments became due on September 1, 1976. Civil Code article 1938 provides:

“All debts shall bear interest at the rate of seven [7%] per centum per annum from the time they become due, unless otherwise stipulated.”

See also Calhoun v. Louisiana Materials Co., 206 So.2d 147 (La.App. 4th Cir., 1968), writs denied, 251 La. 1050, 208 So.2d 324 (1968) where this Court stated “interest is recoverable on claims arising ex contractu from the time they become due;” and Messina v. Koch Industries, Inc., 267 So.2d 221 (La. App. 4th Cir., 1972), affirmed 283 So.2d 204 (La.1973).

We find no error, further, in the trial judge’s award of interest on penalties from date of judicial demand. We reject defendant’s argument that the plaintiff had not prayed for such interest. The prayer reads, in pertinent part, “. . . petitioner further prays that interest be assessed on all past due payments and that penalties, interest and attorney’s fees be assessed . . ” Our interpretation of the plaintiff’s prayer is that interest on penalties was sought and prayed for.

Consistent with the foregoing, the judgment in favor of plaintiff is amended to allow defendant a credit for the amount of the compensation benefits awarded to plaintiff, together with a credit for the amount of payments made. Penalties are to be paid to plaintiff for double the amount of disability benefits due (after a credit is given for the amount of workmen’s compensation payments awarded) from December 10, 1976 through August 15, 1977. As amended the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Plaintiff became disabled on June 16, 1976. Claim was made by plaintiff’s attorney for disability payments under the policy on October 4, 1976. Supporting claim forms and medical report from the treating physician was submitted to the insurer on November 10, 1976. The accumulated disability payments were not tendered until August 16, 1977.

      . LSA-R.S. 22:657(A) reads as follows:
      “§ 657. Payments of claims; health and accident policies; penalties
      A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would

        put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.”

      . See Scanlan v. Bernard Lbr. Co., Inc., 365 So.2d 39 (La.App. 4th Cir., 1978). The workmen’s compensation judgment rendered July 14, 1977 and affirmed by this court November 8, 1978, awarded plaintiff total disability benefits in the amount of $85.00 per week beginning June 16, 1976 and continuing indefinitely.

      . This certificate, submitted into evidence, was allegedly issued to all insured employees of Bernard Lumber Company indicating that coverage was provided by Mutual under a group policy No. G.1580-5.

      . Defendant was placed on notice of plaintiff’s disability on November 10, 1976 and R.S. 22:657 provides that all claims shall be paid not more than 30 days from the date of notice and proof of the claim. The statute further provides that the penalties are payable during the period of the delay. The delay extended from December 10, 1976 (30 days after notice) and continued until the defendant tendered the first payment on August 16, 1977.


author: BOUTALL, Judge. SCHOTT, Judge,

text:
    Oliver J. VICKNAIR, Sr. v. Cornelius Royce OLIN and the Hertz Corporation v. Henry VICKNAIR and U.S. Fidelity & Guaranty Co.
    No. 10083.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied June 11, 1979.

      The Law Office of Emile L. Turner, Jr., Thomas M. Young, New Orleans, for R. O. Cornelius and the Hertz Corp., defendants-appellants.
    The Law Offices of Daniel E. Becnel, Jr., Daniel E. Becnel, Jr., Robert R. Faucheux, Jr., C. William Bradley, Jr., and Barry J. Landry, Reserve, for Oliver Vicknair, Sr., plaintiff-appellee.
    James L. Donovan, Donovan & Lawler, Metairie, for defendants-appellees.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is a case involving a collision between an automobile attempting to make a left turn and its following vehicle.

Royce O. Cornelius, appellant, was driving an automobile rented from the Hertz Corporation, also an appellant herein, in an easterly direction on U.S. Highway 61 near LaPlace at the time the accident occurred. Wishing to stop for lunch, Cornelius spotted a restaurant on the opposite side of the four-lane highway. At this point the highway is divided by a grass covered median. Since he was travelling in the right hand lane, it was necessary to move into the left lane in order to make his left turn to reach the restaurant. Each side has a different view of the facts at this point, but it is clear that the Cornelius vehicle was struck by a truck driven by Henry Vicknair. Oliver Vicknair, a guest passenger in his son’s truck, was injured in the accident.

Oliver Vicknair filed against Cornelius and Hertz Corporation for damages for injuries sustained in the accident. Both defendants denied liability and filed a third party demand against Henry Vicknair and his insurer, United States Fidelity & Guaranty Company, seeking indemnity or, alternatively, contribution. Henry Vicknair and his insurer then reconvened against Cornelius and Hertz for property damage to the pick-up truck. The trial judge found in favor of Oliver Vicknair awarding damages in the amount of $16,516.80 plus interest and costs. He also rendered judgment in favor of Henry Vicknair and U.S.F & G in the amount of $386.72. It is from these holdings that appellants bring this appeal.

One of appellants’ contentions is that Hertz was merely the lessor of the automobile Cornelius was driving and that there is no basis upon which Hertz can be held’ liable. We agree. There is no evidence in the record of either privity of contract or knowledge by the lessor of incompetence of the driver. Absent these, the negligence of a lessee-borrower of a vehicle cannot be imputed to the owner of the vehicle. Mayeur v. Ryder Truck Line, Inc., 325 So.2d 663 (La.App. 4th Cir. 1976); Turner v. Ewing, 220 So.2d 518 (La.App. 4th Cir. 1969). We therefore find that Hertz is in no way liable for either the personal injuries or the property damage.

Appellants next contend that the trial court erred in finding Cornelius negligent and in not finding negligence on the part of Henry Vicknair. Cornelius testified that before moving into the left lane adjacent to the median, he checked his rear view mirror and seeing no traffic in his immediate area, he moved into the left lane with his blinker light on. He stated that he began this maneuver approximately 150 feet from the median opening and was at least 125 feet from the opening when the car was fully into the left lane. He further testified that the Vicknair truck collided with him as he was beginning the left turn and that he never saw the truck.

Henry Vicknair testified that he was within three car lengths of the Cornelius vehicle when that vehicle suddenly pulled into his lane. He stated that the Cornelius vehicle was not completely into the left lane when the collision occurred and that he was unable to stop although he applied his brakes immediately. He estimated his rate of speed at the rate of 35 miles per hour. (The limit is 40).

The testimony of the two investigating officers revealed that the Vicknair vehicle left skid marks measuring 93 feet to the point of impact, and that the Cornelius vehicle was propelled 57 feet by the force of the collision. The damage occurred on the left and center rear of the Cornelius vehicle and the left front and center of the truck. The car was spun around and pushed forward into the median by the collision.

Louisiana Revised Statute 32:81 places a duty upon the following motorist:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

In Jones v. Meinke, 357 So.2d 838 (La.App. 4th Cir. 1978) this court stated the following:

“* * * As the courts of this state have established, a presumption of negligence or a presumption of a breach of the standard of conduct imposed by the statute arises when a motorist strikes the rear of a preceding vehicle. The following motorist must then overcome the respective presumption.”

The following driver, however, may overcome the presumption by showing that the driver of the preceding vehicle was guilty of negligence in creating some emergency which would excuse the following driver who used his best judgment under the circumstances. Salemi v. St. Paul Fire & Marine Insurance Company, 339 So.2d 1264 (La.App. 1st Cir. 1976); Hightower v. Dixie Auto Insurance Company, 247 So.2d 912 (La.App. 2d Cir. 1971.)

Vehicles making turns or changing lanes also have a duty imposed by law. Revised Statute 32:104 reads in part:

“A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.
“B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.”
* * * * * *

These statutory duties and jurisprudential rules reduce the question before us to one of fact. In such a factual determination, the appellate court is bound by the trial judge’s decision absent a determination that that decision is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We agree with the trial judge that the negligence of the Cornelius vehicle has been established by the evidence.

In addition to the testimony of Henry and Oliver Vicknair, the deposition of an observer of the accident was- introduced. This witness, Daniel Alexander, observed the accident from a position in front of Airline Motors Restaurant directly across Highway 61 from the break in the median at which the accident occurred. He testified that the car was approximately 2 car lengths in front of the truck when it changed lanes and attempted a left turn causing the truck to slam on his brakes. We are convinced that Cornelius violated his statutory duty in that he changed lanes and attempted a left turn when it was not reasonably safe to do so. 4

The question of Henry Vicknair’s negligence is, however, more difficult. The trial judge found that Vicknair was free from negligence. The testimony of Vicknair that he was travelling at 35 miles per hour is uncontradicted since the observing witness stated that he could not say how fast the truck was travelling. The physical evidence, however, shows that the truck left skid marks measuring 93 feet and still had enough force to propel the car 57 feet after the collision. We are referred by appellant to the article printed in 14 Tulane Law Review 493 which contains a table of data on stopping distances originally published by General Motors Corporation Research Department. This table indicates that an automobile travelling at 40 miles per hour would need 62.7 feet of braking distance to stop under excellent conditions and 88.8 feet under average conditions.

This table was not, however, introduced into evidence at the trial. There was, therefore, no showing that the variable factors, such as grip between the tire treads in the road and efficiency of brakes, were such that in this case the table was accurate. In other words there was no showing of the applicability of the table under these circumstances. Absent such a showing, we cannot find that the trial judge’s holding that Vicknair was free from negligence was clearly wrong by relying on inconclusive physical evidence in preference to uncontra-dicted testimony. We therefore affirm this finding.

Appellants’ final contention is that the amount of damages awarded was clearly excessive. In addition to the medical expenses, the trial judge awarded $15,000 to Oliver Vicknair for pain and suffering of his head and neck. Appellant argues that this is excessive since Vicknair has had two back surgeries and constant arthritic problems. Appellant contends that these problems rather than the accident are the cause of the pain.

The evidence shows that objective signs in the neck had disappeared within 6 weeks of the accident, although Vicknair testified that he still had pain 20 months after the accident. The trial judge found Vicknair to be a credible witness and this fact, coupled with the testimony of Dr. Reyes, that he had found some loss of motion in the neck and back and that the arthritic condition was aggravated in the accident probably causing a further medical decline in the future, convinces us that the award was not an abuse of the trial court’s wide discretion in fixing damage awards. See Coco v. Winston, 341 So.2d 332 (La.1976).

The judgment of the trial court is reversed in holding the Hertz Corporation liable and affirmed in all other particulars. Cost of this appeal to be paid by the appellant, Royce O. Cornelius.

AFFIRMED IN PART, AND REVERSED IN PART.

SCHOTT, J., dissenting in part.

SCHOTT, Judge,

dissenting in part.

I concur with the majority opinion as far as finding that defendant Olin was negligent and for the amount of damages awarded to Oliver J. Vicknair but believe that the record clearly supports a finding of contributory negligence on the part of Henry Vicknair who was the driver of the following vehicle. The following facts are undisputed:

1. After the accident, Olin’s automobile was in the median at the center of the Airline Highway and Vicknair’s truck was in the left lane.

2. Vicknair’s truck laid down 93 feet of skidmarks.

3. After the impact Olin traveled a distance of 57 feet and Vicknair a distance of 8 feet.

4. Henry Vicknair testified that he was going 30 or 35 miles an hour and was two or three car lengths behind Olin and in his version of how the accident happened, Olin was in the right lane and started coming over slow. He admitted that the middle of his truck struck the back left corner of the car.

5. One of the policemen testified that the whole front end of the truck was damaged “but mostly the left.” He also said that the principal damage was in the center and that the damage to Olin’s vehicle was the left and center rear.

From these facts I am unable to exonerate Henry Vicknair from some negligence which contributed to this accident. An automobile going 30 to 35 can be stopped by the driver who sees that the other automobile is coming into his path. Olin testified that he put his turn indicator signal on when he started to make his move, and while Vicknair did not admit this neither did he deny it, and in any event he knew that Olin was coming over.

Vicknair was insured by USF & G and a proper third-party demand was filed by Olin. I would reverse the judgment in part so as to grant a judgment in favor of Olin and against Henry Vicknair and USF & G for contribution, and would reverse the judgment in favor of Henry Vicknair and USF & G, dismissing their claim against Olin.