text:
    Jerry C. MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-435.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RICHARD BERTRAM & CO., and John Leopold, Appellants, v. The WANDA MARINE CORPORATION et al., Appellees.
    No. 75-514.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    RESOLUTE INSURANCE COMPANY, a Rhode Island Corporation, Appellant, v. The STATE of Florida, Appellee.
    No. 75-444.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Jesus NOVO, Appellant, v. Rosa NOVO, Appellee.
    No. 75-396.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Isaih ROBINSON and Allegheny Mutual Casualty Company, Appellant, v. The STATE of Florida, for the Use and Benefit of DADE COUNTY, Appellee.
    No. 75-429.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Angel SEGUARDO and Vigilant Insurance Company, Appellants, v. Sarah RICHARDSON et al., Appellees.
    No. 75-579.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Bobbie Jean TIMMONS, Appellant, v. The HERTZ CORPORATION et al., Appellees.
    No. 74-1751.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Pati BENNETT, as Administratrix of the Estate of John M. Bennett, Deceased, Appellant, v. REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 75-306.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    In the Interest of C. F. B., a child.
    No. 74-1583.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    In re the ESTATE of John BOIVED, Deceased. Anne M. RUDOLPH, Appellant, v. June Davidson HARBART et al., Appellees.
    No. 75-58.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Gregory M. FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 74-988.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Stan Edward HOROWITZ, Appellant, v. STATE of Florida, Appellee.
    No. 75-347.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


author: PER CURIÁM.

text:
    Bryan Keith KENDZIA, Appellant, v. STATE of Florida, Appellee.
    No. 75-161.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   PER CURIÁM.

Affirmed.


text:
    Frank MORRIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-1493.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Paul Nicholas MOTHERSHED, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-139.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Gary Lee PRICE, Appellant, v. STATE of Florida, Appellee.
    No. X-240.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Lee Noel REED, Appellant, v. STATE of Florida, Appellee.
    No. 75-363.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Sandy SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 75-288.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    VENETIAN MARBLE PRODUCTS, INC., Appellant, v. TAMARAC VILLAGE, INC., a Florida Corporation, Appellee.
    No. 75-731.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Frederick WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. V-404.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Giorgia WITCOMBE, Appellant, v. David BEROLZHEIMER, Appellee.
    No. 75-145.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Warren S. WITUS, Appellant, v. Helena WITUS, Appellee.
    No. 75-1345.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Robert Edward WILLIT, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-66.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles Eugene WILSON, Appellant, v. STATE of Florida, Appellee.
    No. X-10.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Walter CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-332.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Doris L. RUSAW, Appellant, v. Ernest S. RUSAW, Appellee.
    No. 74-1386.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Jack KIEFER and Kay Kiefer, Appellants, v. Stanley M. KERK, Appellee.
    No. 75-745.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1975.
   Appeal dismissed.


text:
    ARCATA LEASING CORP., n/k/a Stromberg-Carlson Leasing Corporation, a corporation, Appellant, v. BAHAMIA REPRESENTATIVES, INC., a Florida Corporation, and Transworld Realty Corp., a Florida Corporation, Appellees.
    No. 75-80.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Vernon L. JONES, etc., Appellant, v. Cleveland JONES et al., Appellees.
    No. 75-1432.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    STATE of Florida ex rel. Eugene CARTER, Relator, v. Honorable Natalie BASKIN, Judge of the Circuit Court of the Eleventh Judicial Circuit, In and For Dade County, Florida, Respondent.
    No. 75-1463.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    STATE of Florida ex rel. Samuel Louis FULLER, Relator, v. Louie WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 75-1448.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1975.
   PER CURIAM.

Habeas corpus denied.


text:
    Floyd M. CARAWAY, Appellant, v. MAJESTIC TOWERS, INC., a Florida Corporation, d/b/a Majestic Towers, a limited partnership, Appellee.
    No. 75-947.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1975.
   Appeal dismissed.


text:
    CONTEMPORARY HOMES, INC., Appellant, v. Auburn L. POOVEY et al., Appellees.
    No. 75-964.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1975.
   Appeal dismissed.


text:
    CULPEPPER CONSTRUCTION COMPANY, INC., Appellant, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF SARASOTA, successor by merger to Polk Federal Savings and Loan Association, Appellee.
    No. 75-941.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1975.
   Appeal dismissed.


text:
    RAILWAY EXPRESS AGENCY, Appellant, v. James O. BROWN, Appellee.
    No. 74-1482.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1975.
   Appeal dismissed.


text:
    SCHOOL DISTRICT OF SARASOTA COUNTY et al., Appellants, v. Gladys LASKER, Appellee.
    No. 75-141.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1975.
   Appeal dismissed.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Gladys LASKER et al., Appellees.
    No. 75-164.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1975.
   Appeal dismissed.


text:
    Floyd WILKENSON, etc., et al., Appellants, v. ELLIS NATIONAL BANK OF CLEARWATER, Appellee.
    No. 75-820.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1975.
   Appeal dismissed.


text:
    Joseph F. BRENNAN and John E. King, Appellants, v. STATE of Florida, Appellee.
    No. 75-1017.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1975.
   Appeal dismissed.


author: HALL, Judge.

text:
    BOLINGER LUMBER & SUPPLY COMPANY, INC. d/b/a Plain Dealing Builder’s Supply, Plaintiff-Appellee, v. EQUITY BUILDERS, INC., Defendant-Appellant.
    No. 12672.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.
    Campbell, Campbell, Marvin & Johnson, by James M. Johnson, Minden, for defendant-appellant.
    Wallace & Southerland by James D. Southerland, Benton, for plaintiff-appellee.
    Before PRICE, HALL and DENNIS, JJ-
   HALL, Judge.

Plaintiff, Plain Dealing Builder’s Supply, sued Equity Builders, Inc., for $532.81 allegedly due on open account for materials sold and delivered to defendant. Defendant denied the indebtedness, contending the materials were sold to one Billy Allen, with whom defendant had contracted to complete the construction of a house and for whose debts the corporation is not responsible. After trial the district court, without assigning written reasons, rendered judgment in favor of plaintiff as prayed for. Defendant appealed.

G. Ron Payne, manager of the plaintiff building supply company, testified that in November, 1973, Allen, a carpenter he had dealt with previously, came in to purchase materials for a job in Arkansas he was doing for Mrs. Herholm of Equity Builders. Allen gave Payne Mrs. Herholm’s phone number and said the material was to be charged to her. Payne testified he called the number and asked the lady who answered for Mrs. Herholm and was given another lady on the line. He talked to the second lady and told her Allen was in to buy materials and asked if it was okay to charge the items to Equity Builders and was answered in the affirmative. Thereafter, over a period of about two months, through several different purchases, materials in the amount of $532.81 were sold and were delivered at the store to Allen or his associate, Hodge. Bills were sent at the end of November, December and January to Equity Builders at the address given to Payne. Payment was not made but no objection to or inquiry concerning receipt of the bills was made. Subsequently, demand for payment was made by plaintiff’s attorney and in May, 1974, this suit was filed.

Allen testified he was a carpenter and not a licensed contractor. He was contacted by Mrs. Herholm about completing the house in Arkansas on which a previous contractor had defaulted. He looked at the house and gave Mrs. Herholm an estimate. She was to pay all bills and he was to make a profit of ten percent of the total cost. Allen conceded he signed the so-called estimate which was in writing and styled “Bid for Completion”. He turned most of the actual work over to Hodge, but the house was never completed due to some problems with the septic tank and bad weather. Both Allen and Hodge testified the materials purchased from plaintiff actually went into the completion of the house.

Mrs. Herholm, President of Equity Builders, testified she entered into a turnkey contract with Allen to complete the house at the price shown on the “Bid for Completion”, and that she never agreed to pay any bills, which were his responsibility. Allen eventually defaulted on the job before completion, after she had paid him “a lot of money”. Mrs. Herholm denied she ever talked to Payne on the telephone or authorized the materials to be charged to her company. She knew nothing of the bill until plaintiff’s attorney wrote a demand letter, although she conceded the bills were probably received in her office.

Under LSA-C.C. Art. 2277, plaintiff had the burden to prove the agreement for the payment of money at least by one credible witness and other corroborating circumstances. Here, the key question is whether plaintiff proved by the testimony of the manager and other corroborating witnesses that a duly authorized officer or agent of the defendant corporation authorized the purchase of the materials for the corporation’s account.

The trial judge, while not giving written reasons, obviously believed the testimony of Payne concerning his conversation with a lady who apparently was Mrs. Herholm and who authorized charging the materials to the defendant corporation. Payne asked for Mrs. Herholm and in response a lady came on the phone and spoke with apparent authority. The evidence is clear only Mrs. Herholm had such authority and the testimony of Mrs. Herholm and the secretary-treasurer of the corporation is that no one else would have authorized the purchases.

Payne’s testimony is corroborated by that of Allen. Although Allen’s testimony is vague in some respects and not entirely consistent with that of Payne, he testified emphatically that he was not a contractor, did not contract jobs, and that Mrs. Her-holm was to pay all the bills. He gave Payne Mrs. Herholm’s name and phone number and although he did not hear the telephone conversation, he was aware that a phone call was made.

Payne’s testimony is further corroborated by the fact that several invoices, addressed to Equity Builders, were mailed to that company and although not paid, no protest or objection was made by Equity Builders for several months.

The evidence in this case is in sharp conflict on the essential factual issue. The issue was resolved in favor of plaintiff by the trial judge, who saw and heard the witnesses. Our review of the record leads this court to the same conclusion — that the charging of the materials to the defendant corporation was authorized in a telephone conversation by Mrs. Herholm or someone acting in her place with apparent authority. All of the circumstances of the case make this conclusion more probable than not.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


author: HOOD, Judge.

text:
    Helen Castille RICHARD, Plaintiff-Appellee, v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Appellant.
    No. 5120.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Rehearing Denied Oct. 1, 1975.
    Writ Refused Nov. 18, 1975.
    Dubuisson, Brinkhaus, Guglielmo & Dauzat by Edward B. Dubuisson, Opelou-sas, for defendant-appellant.
    Pucheu & Pucheu by Jacque B. Pucheu, Jr., Eunice, for plaintiff-appellee.

      Before HOOD, CULPEPPER -and MILLER, JJ.
   HOOD, Judge.

Mrs. Helen Castille Richard, as natural tutrix of her two minor children, seeks to recover the proceeds of an accidental death and injury policy issued by defendant, American Home Assurance Company, to her deceased husband, John C. Richard. She also demands penalties under LSA-R. S. 22:656. The two minor children were named as beneficiaries in that policy. Judgment was rendered by the trial court awarding plaintiff the maximum benefits provided in the policy, but rejecting her demand for penalties. Defendant appealed. Plaintiff answered the appeal, praying for penalties.

The principal issue presented is whether the death of the named insured is excluded from coverage by the terms of the policy. To resolve that issue it is necessary to determine whether the insured was intoxicated at the time of the accident which resulted in his death, and if so, whether his intoxication was a contributing cause of that accident.

The insured, Richard, was killed in a one car accident which occurred about 4:15 A. M. on March 14, 1974, on Louisiana Highway 13, about three miles south of Eunice, Louisiana. The vehicle he was driving left the road as he was attempting to negotiate a slight curve in that thoroughfare. It skidded approximately 67 yards partially on the shoulder of the highway, collided with an embankment and then traveled about 59 yards through the air before it again touched the ground. After striking the ground, the automobile skidded on its roof and tumbled end over end covering an additional distance of about 40 yards, and it then came to rest on its wheels in a rice field. The investigating officer estimated the speed of the vehicle at about 85 miles per hour at the time it left the highway.

The evidence indicates that the driver, Richard, died about 30 minutes after the accident■ occurred a's the hesult of injuries which he sustained in that accident.

Richard was the named insured in an accidental death benefit policy issued by defendant, American Home Assurancé Company, on December 12, 1973. The policy was in full force and effect when the accident occurred. The death of the insured was accidental, within the terms of the policy, and plaintiff is entitled to recover the benefits claimed unless the exclusions set out in the policy are applicable. Defendant contends that the accident and the resulting death of Mr. Richard are excluded from coverage by the provisions of the policy.

Part III of the policy, under the heading "Exclusions,” contains the following pertinent language:

“This policy does not cover any loss to an Insured Person caused by or resulting from: ... (8) injury sustained while intoxicated; . . . ”

A sample of the decedent’s blood, taken shortly after the accident occurred, was tested at the State Crime Laboratory in Baton Rouge, and that test revealed that, at the time of Richard’s death his blood contained .19 percent alcohol by weight. The parties stipulated that a blood sample was taken from the deceased, John C. Richard, that it was tested properly, and that the blood sample in fact did have a blood alcohol content of .19 percent. The report of the criminalist at the State Crime Laboratory showing the result of the above test was received in evidence without objection.

Dr. Joseph Theodore Brierre, Jr., a pathologist who has had extensive experience in studying the effect of alcohol on the human body, testified that a person with a blood alcohol content of .19 percent would be “seriously intoxicated,” and that he would be “seriously impaired in performing any skilled function, and by all means should not be driving.” In his opinion, the likelihood of such a person being involved in an accident while attempting to drive an automobile is SO times greater than that of a person who has not been drinking. He stated that a person having a blood alcohol content of .19 percent: :>

“ . . . may be in the depressive phase of alcohol depression versus the euphoric phase, and he has certain nerve conduction impairment which results in difficulty in interpreting visual experiences. Many individuals at this level will either hallucinate or see or misinterpret things that border on hallucination.”

According to Dr. Brierre, in order for a person of the decedent’s height and weight to acquire a blood alcohol content of .19 percent, he would have had to consume a minimum of 10 to 12 ounces of 100 proof alcohol, or a minimum of from 12 to 24 cans or bottles of beer, over a four hour period. He stated that his opinions were within “ninety-five percent confidence limits,” and he conceded that if the blood alcohol content of Richard did not affect him, then the decedent “would be one of those very rare individuals who has this very unusual idiosyncratic 'type of response.” He testified, however, that the likelihood of his observations being “due to chance rather than to reality ... is about one in a thousand.”

We are impressed with Dr. Brierre’s qualifications as an expert on the effect which alcohol has on the human body. He was the only expert who testified on that subject, and we accept his testimony as to the effect which a blood alcohol content of .19 percent has on the human body.

Several lay witnesses saw the decedent at three different bars or lounges in or near Eunice during the evening of March 13 and the early morning hours of March 14, 1974, shortly before the accident occurred. They testified that on all of those occasions he walked, talked and acted normally, and that he did not appear to be intoxicated. These witnesses indicated that he consumed very few alcoholic beverages that evening, the most any of them conceded that' he consumed was a maximum of seven cans of beer between 7:00 P.M. on March 13 and 2:00 A.M. on March 14.

The last time any of these witnesses saw the decedent prior to his death, however, was at 2:00 A.M. on March 14, except that one witness saw him very briefly at 2:05 or 2:15 A.M., and another caught a glimpse of him driving his car at about 2:30 A.M. that date. The accident occurred at 4:15 A.M., however, within three miles of the places where these witnesses had seen him, and it is apparent that he drove at least a part of that distance at an extremely high rate of speed. If he had consumed not more than seven cans of beer up to 2:00 A.M., then he obviously would not have had a blood alcohol content of .19 percent when last seen by the lay witnesses. The evidence is unqontradicted that his blood alcohol content was at that level when the accident occurred, so the conclusion is inescapable that Richard either consumed much more alcohol during the evening than these witnesses saw him consume, or he consumed substantial quantities of alcohol after they last observed him at 2:00 A.M. on March 14 and before the accident occurred.

The trial judge made no determination as to whether the insured was intoxicated at the time the accident occurred. He held, instead, that the cause of Richard’s death was “the excessive speed at which he was driving,” stating in his reasons for judgment that “the court is not convinced that the possible intoxication of the deceased was the cause of his death,” and that “this court cannot say that the death resulted as a cause of the intoxication.” Judgment accordingly was rendered by the trial court in favor of plaintiff awarding her the maximum benefits provided in the policy. We are unable to agree with some of the conclusions and with the result reached by the trial court.

The facts and the issues presented in Matthews v. All American Assurance Company, 226 So.2d 181 (La.App. 3 Cir. 1969), were almost identical to those presented here, except that the blood alcohol content of the decedent in Matthews was .29 percent. The plaintiffs argued there, as is argued in the instant suit, that people vary in their tolerance for alcohol, and that the court should have accepted the lay testimony that the decedent appeared to be in control of his faculties shortly before the accident, rather than the testimony of the experts that he was intoxicated. They also argued alternatively that the accident resulted from the insured’s failure to negotiate a curve, and not from his intoxication. We held in that case that the decedent was intoxicated, as that term was used in the exclusionary clause of the policy, and that there was a causal connection between his intoxication and the accident. In determining that the insured was intoxicated, we said:

“ . . .In order to prove that one is incapable of operating a motor vehicle by reason of intoxication, it need not be shown that he was drunk, but only that he had a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties. . . .”

A similar issue also was presented in Young v. All American Assurance Company, 243 So.2d 894 (La.App. 3 Cir. 1971), where the insured was found to have a blood alcohol content of .25 percent at the time of the accident and his resulting death, and several lay witnesses testified that he had not had anything to drink on the date of the accident. We quoted extensively from Matthews, supra, and held that the insured was intoxicated at the time the accident occurred, and that “the exclusionary section of the policy bars plaintiff from recovery.”

In Jones v. Continental Casualty Co. of Chicago, III., 246 La. 921, 169 So.2d 50 (1964), a blood test of the driver of one of the vehicles involved in the accident revealed that he had a blood alcohol content of .11 percent, and the coroner stated that that was sufficient to cause him to be intoxicated. Despite the testimony of lay witnesses that the driver had not been drinking, our Supreme Court held that “the alcoholic content of the driver’s blood was sufficient to establish that he was intoxicated and that his mental and physical faculties were materially impaired at the time the collision occurred.”

The facts in the instant suit show that Richard had a blood alcohol content of .19 percent at the time the accident occurred. We think that evidence, considered with the testimony of Dr. Brierre, is sufficient to establish that he was intoxicated. In addition to the results of the blood test, however, we think the greatly excessive speed at which he was driving his car when he lost control of it shows irrational conduct on his part, and that tends to confirm the opinion of Dr. Brierre that he was intoxicated.

We conclude that the decedent, Richard, was intoxicated when the accident occurred, and that his intoxicated condition was a proximate and contributing cause of the accident.

Defendant contends that the exclusionary clause involved in this case applies, even if the evidence should fail to show a causal connection between the intoxication and the accident. It is unnecessary for us to consider that argument in view of our conclusion that Richard’s intoxication was a contributing cause of the accident.

Plaintiff points out that the decedent caused his automobile to skid for 67 yards before it completely left the road, and she argues that that shows that he had control of his faculties and that he thus was not intoxicated. We find no merit to that argument. Our view is that his intoxication was a substantial and contributing cause of his action in driving at an excessive rate of speed and of his failure to negotiate the slight curve. The fact that he had presence of mind enough to apply his brakes when the car was partially on the shoulder, does not justify a conclusion that he had normal control of all of his mental and physical faculties either at that time or just before that emergency occurred.

Plaintiff contends further that since the policy issued by defendant did not contain a definition of the word “intoxicated,” the “ordinary everyday” meaning of the word should be applied. She argues that in view of the fact that the policy does not define “intoxicated” in terms of the blood alcohol content of the insured, the court should consider only the testimony of the lay witnesses in determining whether the insured was intoxicated, as that term is ordinarily understood. She points out that the lay witnesses described his appearance and actions as being normal shortly before the accident occurred.

We believe that the interpretation which we placed on the word “intoxicated” in Matthews v. All American Assurance Company, supra, is proper in this case. As already pointed out, we held in effect that a person is intoxicated if he has had “sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties.” We think the alcohol content of a person’s blood is one factor to consider in determining whether he is intoxicated.

Plaintiff contends, finally, that the trial judge erred in refusing to permit her to introduce testimony tending to show that the decedent, Richard, frequently drank substantial quantities of beer without showing signs of intoxication. By proffer of proof, she offered the testimony of several witnesses to the effect that prior to the accident the insured often drank from four to six cans of beer per hour, that he continued drinking beer at that rate for four consecutive hours or more, and that immediately thereafter he demonstrated his ability to drive racing cars, to play pool and to perform highly skilled mechanical work. By means of that testimony plaintiff hoped to show that the insured was one of the rare individuals referred to by Dr. Brierre who was affected very little by alcohol. The trial judge refused to permit the testimony on the ground that it was immaterial to the issues presented here.

In our opinion, the ruling of the trial judge was correct. We believe that the decedent’s actions in driving at such a highly excessive rate of speed after consuming substantial quantities of alcohol constituted sufficient proof of the fact that he had lost control of at least some of his normal mental faculties. It is immaterial whether on prior occasions he had been able to perform skilled activities after consuming large quantities of beer.

Since we have concluded that plaintiff is not entitled to recover the proceeds of the policy, it necessarily follows that defendant is not liable for penalties and attorney’s fees because of its refusal to pay those proceeds. That part of the judgment of the trial court which rejects plaintiff’s demand for penalties and attorney’s fees, therefore, will be affirmed.

For the reasons assigned, that part of the judgment appealed from which condemns defendant to pay to plaintiff the sum of $10,000.00, with interest and costs, is reversed, and judgment is hereby rendered in favor of defendant, American Home Assurance Company, and against plaintiff, Mrs. Helen Castille Richard, as natural tutrix of her two minor children, rejecting plaintiff’s demands at her cost. The remainder of the trial court judgment, and particularly the part which rejects plaintiff’s demands for penalties under LSA-R.S. 22:656, is affirmed. The costs of this appeal are assessed to plaintiff-ap-pellee.

Affirmed in part and reversed in part.


author: MARVIN, Judge.

text:
    W. L. TOWNSEND, Jr. v. CLEVE HEYL CHEVROLET-BUICK, INC., et al.
    No. 12588.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for General Motors Corp.

      Donald G. Kelly, Natchitoches, for W. L. Townsend, Jr.
    Cook, Clark, Egan, Yancey & King by Gordon E. Rountree, Shreveport, for Cleve Heyl Chevrolet-Buick, Inc.
    Before BOLIN, PRICE, HALL, DENNIS and MARVIN, JJ.
   MARVIN, Judge.

The Constitution provides in part that when a judgment of a district court is to be modified or reversed and one judge of the court of appeals dissents, the case “shall be reargued before a panel of at least five judges prior to rendition of judgment.” La.Const. Art. V, § 8(B) (1974).

The original consideration of this appeal by a three-judge panel produced this result and the case was reargued before a five-judge panel.

The appeal is from an award of a judgment for damages and attorney fees against appellant, the manufacturer of an automobile purchased by plaintiff-appellee from a new car dealer. Sixteen days after plaintiff’s purchase, and while he was driving about 60 miles per hour on a paved highway, the universal joint of the vehicle abruptly dislodged, striking the pavement and causing the accident which resulted in damage to the automobile and personal injury to plaintiff. A bolt connecting the control arm assembly stabilizing the left rear axle either failed or worked loose, causing the left rear axle and wheel to shift rearward. This shifting pulled the universal joint from its connection and caused it to fall or drop to the highway. The trial court, this court and the litigants, do not dispute these circumstances. The absence of a nut for the bolt, the nut for the bolt being or becoming loose or untight-ened, or the failure of the bolt or nut could have caused the bolt to become disconnected, according to opinion evidence below.

THE PLEADINGS

The plaintiff-purchaser sued the seller, the seller’s liability insurer, and the manufacturer. Plaintiff contended applicability of the res ipsa loquitur doctrine to place on all defendants the burden of proving their respective freedom from negligence. In the alternative, plaintiff separately alleged specifications of negligence against the seller and against the manufacturer respectively, as the cause of itemized injuries (essentially muscle and soft tissue strains to the back, neck and shoulder area) and itemized damages, including pain and suffering, loss of earnings, and medical and related expenses. The itemized damages, as alleged by plaintiff, totalled $8,423.98.

Against all defendants in solido, plaintiff prayed for judgment for this amount which he had itemized as personal injury damages.

After plaintiff itemized the $8,423.98, he alleged defects in the automobile; the offer to return the automobile to the seller; his demand on the seller and seller’s “failure” to refund the purchase price. Plaintiff alleged “expenses” connected with the purchase and preservation of the automobile totalling $3,991.77. In the next article of his petition, plaintiff sought a recission of the sale and return of the purchase price, “together with expenses, damages and a reasonable attorney’s fees (sic).”

Against only the seller and its insurer in solido, plaintiff prayed for judgment for this amount, $3,991.77, and for attorney fees.

The seller’s liability insurer in effect admitted coverage on the “tort phase” of the case, but contended that the policy would not cover the seller “for the various claims made . . . for recission of the sale on the basis of the alleged redhibitory vices and defects”. Against the manufacturer the insurer asserted a third-party demand, alternatively contending it should have judgment over against the manufacturer because the manufacturer “created the defect in said, automobile,. if there was one”. The seller asserted the same third-party demand against the manufacturer and reconvened' against plaintiff for the purchase price of the car, the check for which purchase plaintiff allegedly • had issued a stop- payment order to his bank.

Nine months before trial, a compromise judgment of dismissal was entered between plaintiff and seller wherein plaintiff’s suit against the seller and the seller’s reconven-tional demands against plaintiff were dismissed with prejudice. This judgment reserved all of plaintiff’s rights against the seller’s liability insurer and against the manufacturer.

The trial court rejected plaintiff’s demands against the seller’s liability insurer, finding “no negligence” on the part of the seller, and “no liability” on the seller’s insurer. The trial court awarded judgment against the manufacturer for $2,611.24, which the court below itemized as $1,500.00 personal injury damage, $8.24 drug expense, $60,00 doctor’s expense, $43.00 for storage of the automobile, and $1,000.00 attorney’s fees.

Only the manufacturer appealed from the judgment of the trial court, contending that it should be relieved of liability because of the “superseding” or “intervening” act of the seller in failing to properly inspect the rear suspension before delivery of the car to the purchaser; that the plaintiff’s action was relegated to a “tort” action and attorney’s fees were not allowable, especially where not prayed for against the manufacturer; and that the personal injury award was “excessive and exorbitant”.

Neither plaintiff nor the seller’s liability insurer appealed from the judgment of the trial court rejecting the demands of the plaintiff against the insurer.

THE SELLER’S ALLEGED FAILURE TO PROPERLY INSPECT

This contention of the manufacturer derives from a check list furnished to its ,dealers by the manufacturer which the dealer is to use in preparing a car for delivery. Trial testimony shows that the seller Complied with the check list and made a reasonable inspection before delivery.' A similar ■ contention was raised in Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972), where the Supreme Court held the liability of a manufacturer and its franchise dealer to be solidary against latent defects in a new automobile sold to a consumer. The court said the “intervention” of the dealer, which serves only ás a conduit for marketing the automobile, would not mitigate the .manufacturer’s liability to the purchaser. Therefore, the -contention of the manufacturer as to alleged “intervening” and “superseding” negligence .of. the seller is of no avail to relieve the- manufacturer of the responsibility for the defect. '

THE MANUFACTURER’S LIABILITY FOR DAMAGES AND • ATTORNEY FEES'

The new automobile had been driven only 1,600 miles and plaintiff negatived the automobile being abused or driven into or over objects or obstructions about the highway during the sixteen days that he owned it. The car functioned properly until the bolt in question either worked out or failed. The part of the automobile was defective either in assembly or in the way it was designed or made.

A manufacturer is presumed to know of defects in the thing it makes or assembles and under La.C.C., Art. 2545 “is answerable to the buyer in damages”. See Spillers v. Montgomery Ward & Co., Inc. 294 So.2d 803 (La.1974), and Rey v. Cuccia, 298 So.2d 840 (La.1974).

The factual circumstances proved below establish plaintiff’s claim for damages against the manufacturer whether the basis for the award be the liability imposed under the above civil code article, and jurisprudence or under the inference of negligence as suggested by the lower court’s reasons for judgment.

The trial court correctly observed that the disconnecting or failure of the bolt was “not a usual thing” and that the manufacturer failed in its responsibility to show it was not negligent in its assembly. In Rey, supra, the Supreme Court referred to Joyner v. Aetna Casualty & Surety, Co., 259 La. 660, 251 So.2d 166 (1971), establishing as a “similar principle” the inference that faulty workmanship or material caused the failure shortly after delivery of the thing. Joyner involved the failure of the fulcrum of a diving board causing injury three to four months after installation, which was characterized by the court as a “permanent installation”. A bolt connecting the lower control arm extending from the frame to the rear axle of an automobile, as in this case, is no less a “permanent installation” and the principle recognized there should apply here. See also Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754 (1971).

La.C.C., Art. 2545 provides:

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

This article was applied in Rey, supra, which was the authority for the award of attorney fees below. In that case, the buyer of a camper trailer sued both the manufacturer and the seller to recover the purchase price because of redhibitory defect. There was no contention there that the buyer did not allege and pray for attorney fees against both defendants.

Here, the manufacturer-appellant contends the award of attorney fees was error because the action against it was “simply a tort suit” and not in redhibition and because these elements of plaintiff’s petition were prayed for only against the seller (and its insurer, we should add) and not against the manufacturer.

We are admonished by our Code of Civil Procedure that “no technical forms of pleading[s] are required” (Article 854) and that it is not necessary to plead the “theory of the case” and the once sacramental prayer for general and equitable relief. See Article 862 and Comment (b) thereunder. This latter article provides that except in cases of default, “a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”

Article 861 states:

“When items of special damage are claimed, they shall be specifically alleged.”

Article 891 sets forth requirements of a petition in these words :

“The petition shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of the object of the demand and of the material facts upon which the cause of action is based; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative.”

Except when pleading possessory and petitory actions, Article 892 provides alternative pleading of two or more causes of action.

In Loyacano v. Continental Insurance Company and Winn-Dixie, La. Inc., 283 So.2d 302 (La.App. 4th Cir., 1973), the court affirmed a personal injury award against a grocery and its insurer where the plaintiff broke her tooth on a bone fragment in ground meat purchased from the store. The petition was couched only in terms, of negligence but the award was made below for breach of warranty and upheld on appeal under both theories. In essence, Loyacano was against only one defendant — the liability of the grocery and its insurer being virtually synonymous— and the factual circumstances alleged and proved therein were sufficient to entitle the plaintiff to personal injury damages, which was the relief prayed for. The court- had no difficulty in awarding damages under either theory, even though the warranty theory was not alleged. In our opinion, Loyacano presented the typical situation for the application of Articles 854 and 862, and properly employed the Louisiana system of fact pleading.

In McGowan-Rigsby Supply, Inc. v. Charles Carter & Co. Inc., 268 So.2d 716 (La.App. 1st Cir., 1972) Carter, the prime contractor, asserted a third-party demand against its subcontractor, Big River, and it was stipulated below between Carter and Big River “that if attorney’s fees were found to be due, the trial court would fix the amount thereof in such sum as it deemed reasonable”. 268 So.2d 716, 721. The contract between the contractor and the subcontractor provided for attorney fees in certain circumstances. The court reversed to award judgment on the third party demand, but refused to award attorney’s fees because the appellant, Carter, in his petition, did not claim or pray for attorney’s fees under the contract provision. There the court said:

“[8, 9] It is significant that in appellants’ third party demand filed in the McGowan action, no claim is made for attorney’s fees and none prayed for. LSA-C.C.P. art. 861 expressly provides that when items of special damage are claimed, they ‘shall be specifically alleged.’ We are mindful that LSA-C.C. P. art. 862 provides that a final judgment may grant a party such relief as he is entitled to notwithstanding his failure to demand it in his pleadings. Said Article is without application in this instance inasmuch as the redactor’s notes thereto point out that its purpose is primarily to’ eliminate the ‘theory of the case doctrine’ which previously existed in this state. Pursuant to Article 862, above, a type of relief which is prayed for may be granted on a legal theory or principle not specifically presented or urged by a litigant. This does not mean, however, that the courts can grant a type of relief for which a litigant has not prayed when the particular type of relief sought is one which must be specially alleged as required by Article 86!, above. Under the circumstances, no recovery can be allowed appellants for attorney’s fees in the action filed by McGowan.” 268 So.2d 716, 721-722.

In Paxton v. Ballard, 289 So.2d 85 (La.1974), these principles, certainly applicable here, were observed:

“The Louisiana Code of Civil Procedure, rej ecting procedural- technicalities, adopts the salutary rule of liberal construction of pleadings.
“Article 5051 provides:
‘The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.’
“Article 865 specifically directs:
‘Every pleading shall be so construed as to do substantial justice.’
“These statutory imperatives plainly require a rule of reason in the construction of pleadings, designed to achieve justice between the parties.
“As this Court held in Succession of Smith, 247 La. 921, 175 So.2d 269 (1965):
‘Harsh rules of pleading are not favored in this state. Each pleading must be reasonably construed so as to afford the litigant his day in court, arrive at the truth, and do substantial justice. .
‘The characterization of a pleading by the litigant is not controlling. Pleadings are taken for what they really are, and not for what their authors designate them.’ ” 289 So.2d 85, 87.

In Paxton, supra, factual allegations of “sole negligence” were held sufficient compliance with La.C.C.P. Art. 1005 to plead the affirmative defense of “contributory negligence”. The court held that the factual allegations of the answer gave “fair notice” to the plaintiff that her own negligence would be at issue.

In this Court’s opinion, the requirements for pleading an affirmative defense are identical in intent to the requirements for pleading a special damage. Compare Article 861, related articles and comments with Article 1005, related articles and comments. The term “shall be specifically alleged” of Article 861 could easily be interchanged with the term “shall set forth affirmatively” of Article 1005.

Under Articles 1151 et seq., the Code of Civil Procedure contemplates the amendment of the pleading (either formally or tacitly) to provide for a situation where a litigant has intended to claim a special damage or an affirmative defense but has failed in the pleading to make this expressly clear. Article 1153 provides:

“When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.” (Emphasis Supplied)
Article 1154 provides:
“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence■ is objected to at the trial on the ground that it is hot within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting pL 'y fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet 'such evidence.” (Emphasis Supplied)

See also the Comments under these Articles.' • ■

The procedural machinery is available to accomplish the desired goals set forth in Paxton by the Supreme Court — afford the litigant his day in court, arrive at the truth, do substantial justice and give fair notice — without prejudice or injury to any party litigant.

From the rationale of these procedural articles and decisions we derive this underlying principle: When the pleading in question is construed in its entirety and with all other matters occurring during trial which relate to the pleading, and it is more reasonable than not to conclude that the adverse party was given fair notice and was fairly informed of the pleading’s intended substantive result and procedure by which this result was intended to be accomplished, the pleading will be held to be legally effective and to satisfy the. requirements of the Code of Civil Procedure which are raised in objection to the pleading.

Applying this principle in this case, we find the “facts” on which plaintiff’s claims for damages are based are well pleaded and that the manufacturer was given fair notice and was fairly informed in this re- • spect by the pleading in question. Against both the seller and the manufacturer, plaintiff prayed for-judgment in solido for the amount he itemized as personal injury damages and related expenses. The rationale of Loyacano applies here to allow plaintiff to recover damages notwithstanding under what theory or label he styled his petition or claim.

On the other.hand, plaintiff distinguished between the seller and the manufacturer as to recovery of the purchase price and attorney fees connected with re-cission of the sale. The factual basis was alleged, but plaintiff prayed for this relief against only the-seller (and it’s liability insurer). The “suit” of plaintiff against the seller and the reconventional “demands” of the seller against plaintiff were compromised and dismissed some nine months before trial. Moreover, our page by page review of the record, including the trial court’s recitation into the record of stipulations made between counsel in a pre-trial conference, does not reveal that the manufacturer was informed or given notice in any manner during the trial that plaintiff sought attorney fees from the manufacturer. As far as we are able to determine from the record, the question of attorney fees, against the manufacturer was not raised until after the-.case was submitted to the trial court for decision. When we construe this petition in its entirety and with .all other matters occurring during trial which relate to the petition (and there were none), we cannot conclude that it is more reasonable than not that the manufacturer was given fair notice and was fairly informed .that plaintiff was seeking to recover attorney fees from the manufacturer.

The rationale of McGowan-Rigsby, supra, applies here. Attorney fees were held there to be special damages which must be specifically alleged. The test of whether ■or not a thing is “specifically alleged”.under Article 861 is the fair notice standard ■set forth by'the Supreme Court in Paxton, supra, which we have discussed herein.

Rey v. Cuccia, supra, is inapposite because both the manufacturer and the seller were sued in solido for recovery of the purchase price • of a trailer because of a redhibitory defect and there was no contention that the buyer did not.pray for-or specificálly allege entitlement to attorney fees.

We reverse the trial court’s allowance of attorney fees against the manufacturer under the circumstances presented.

QUANTUM

Plaintiff saw his local physician shortly after the accident and within ten days saw an orthopedic physician in a nearby city. Plaintiff’s injuries were diagnosed as muscular and ligamentous strains of the back, neck and shoulder area. Analgesics, muscle relaxants and heat were prescribed and plaintiff was advised to refrain from activities which could produce further strain or irritation. The orthopedic, who saw plaintiff only once, did express the opinion that plaintiff would experience muscle soreness on a gradually diminishing basis for three or four weeks with eventual recovery without permanent disability. Plaintiff testified that his pain and soreness continued for approximately one year. We find no abuse of discretion or manifest error by the trial court in assessing damages against the defendant.

For reasons assigned, the judgment appealed is amended to remove the amount awarded the plaintiff as attorney’s fees, reducing the award by $1,000.00 to $1,611.24, and, as thus amended, it is affirmed.

Appellant is assessed with the cost of this appeal.

Amended and affirmed.

      . When the trial court recited at the beginning of the trial “what was discussed in the pre-trial conference . . . ” the court stated that the seller’s insurer “will file their insurance policy, with reference to the coverage, on the tort action”. Record at p. 82.

      . An earlier characterization of attorney fees as “liquidated damages” as distinguished from “penalties” was approved by the Supreme Court in Maloney v. Oak Builders, 256 La. 85, 235 So.2d 386, 391 (1970).


author: BOLIN, Judge.

text:
    Donnie Lonnie FRAZIER, Defendant-in-Rule-Appellant, v. Gracie Diane FRAZIER, Plaintiff-in-Rule-Appellee.
    No. 12676.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.
    Jones, Blackwell, Chambliss, Hobbs & Henry, by Sam O. Henry, III, West Monroe, for appellant.
    Gracie Diane Frazier, in pro. per.
    Before BOLIN, HALL and MARVIN, JJ-
   BOLIN, Judge.

Plaintiff-in-rule, divorced wife of defendant-in-rule, caused a rule to be issued against her former husband ordering him to show cause why the amount of child support for the minor, Lonnie Christopher Frazier, should not be raised from $10 per week, which was fixed in the judgment of final divorce, to $175 per month. Plaintiff-in-rule alleged the amount required for supporting the child had increased and the father’s ability to pay had correspondingly increased. The lower court awarded the mother $160 per month as support for the child and the father appeals. We affirm the judgment.

On appeal the father does not contend the lower court erred in increasing the award of child support but merely that the amount is excessive.

In June, 1973, Frazier sued for and obtained a divorce from Gracie Diane Frazier on the ground of having lived separate and apart for two years without reconciliation. In the petition for divorce, the father recognized the mother’s right to custody of Lonnie Christopher who was the only child of the marriage. He also admitted his obligation to support the child and suggested the sum of $10 a week be fixed as support. Judgment was entered in accordance with this suggestion. At that time the father’s gross wage was $68 per week.

Both parties testified as to their income and living expenses. Mrs. Frazier stated the child, who was under two years of age at the time of the divorce, had a medical problem which had necessitated extensive testing by a number of specialists. The condition was diagnosed as neurological in nature. It is manifested by seizures and convulsions which can be controlled only by daily medication. The child’s condition requires he take a special milk formula which costs approximately $10 a week. Further, the mother has been advised that when Lonnie Christopher reaches four years of age he should be given additional brain tests to determine the exact nature and extent of his problem. She estimated his minimum expenses for shelter, food, clothing and medicine at about $175 a month.

From the time of the divorce until the hearing on the rule the mother and child had lived with the mother’s parents in very crowded conditions. During this period the parents have given whatever financial aid they could afford. Mrs. Frazier had attended business school under a federally funded education grant but was unemployed at the time of trial. Her mother, who cared for the child while Mrs. Frazier attended school, has been recently diagnosed as suffering from cancer and. is unable to work. Mrs. Frazier’s father is unemployed.

Neither of the parties had remarried at the time of the hearing on the rule. Frazier stated his regular hourly wage was $3.33 and his take-home pay averaged $110 per week. The payroll clerk for the employer of defendant-in-rule testified Frazier’s average gross weekly wage for eight months preceding the date of the hearing was $172.00.

Frazier estimated his monthly expenses at $352, which included $100 a month for food, $60 for rent, $40 for gasoline and cigarettes, and three or more payments to finance companies or collection agencies.

Appellant’s opposition to the increase centers largely on his claim that Mrs. Frazier would benefit by any funds provided for the child’s shelter in that money applied to apartment rent would necessarily house the mother also. He states his former wife is presently living with her parents where she has no rent obligation, and “there is no indication that she is not welcome to continue living with her parents.” Although he expresses a willingness to increase his support payments to $94 per month, which is the projected cost of food, clothing and medicine for his son, he is not willing to pay for shelter.

Article 227 of the Louisiana Civil Code provides:

“Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.” .

Louisiana Civil Code Articles 230 and 231 state this duty to support a child of the marriage extends to whatever is "necessary for the nourishment, lodging and support” of the child and shall be granted in “proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.”

In fixing an amount for a parent to pay for the support of his child under the aforesaid. Civil Code articles, the trial judge is granted much discretion and the award will not be disturbed unless there is a clear abuse of this discretion. Jackson v. Jackson, 275 So.2d 456 (La.App. 2d Cir. 1973) and cases cited therein.

From our review of the record we find that Frazier’s average gross weekly wage at the time of trial was approximately $172.00; that Mrs. Frazier was unemployed; that while plaintiff-in-rule and her child were living in the same household with her unemployed parents, this fact should not excuse the husband from contributing something for the expense of this lodging; that the amount required for the nourishment, lodging and support of the minor, Lonnie Christopher Frazier, exceeds $160 per month.

We find no abuse of discretion by the trial judge. To the contrary, there is substantial evidence to support his ruling. Accordingly, the judgment is affirmed at appellant’s cost.


text:
    Kenneth HARTSELL v. PIPES AUTO SHOP, INC.
    No. 12679.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.
    R. Clyde Lawton, Jr., Vivian, for plaintiff-appellant.
    Donald R. Miller, Shreveport, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

The judgment below rejected plaintiff HartselPs demands against Pipes and Pipes’ reconventional demands against Hartsell. Hartsell appeals.

Pipes is in the business of dismantling wrecked vehicles, salvaging and selling the parts therefrom. Plaintiff owned a 1969 Chevrolet which was damaged in the front and rear in a three-car accident. The car was considered to be a “total loss”, not worthy of repair.

Plaintiff’s father “shopped” several wrecking yards about disposition of the wrecked automobile before contacting Pipes. Plaintiff’s father described the condition of the wrecked car to Pipes and negotiated with Pipes to purchase the car for the price of $225.00. Pipes wrote plaintiff a check for this amount and was given the title to the car without seeing the car.

Pipes contracted with a wrecker service (Pilgrim) to tow the car from its location in Vivian to the wrecking yard in Shreveport. The car was in such condition that it could not be towed. Pipes then contacted plaintiff’s father to complain about the father’s representations of the condition of the car. Pipes attempted to renegotiate the price at $175.00 on the basis of the additional damage to the car as revealed to him by Pilgrim but received only a noncommittal answer. At Pipes’ instruction, Pilgrim returned-to Vivian the next day, loaded the car on a flat bed truck and gave plaintiff’s father Pipes’ check for $175.00. Plaintiffs father eventually tore this check in half and gave it back to Pilgrim, who then unloaded the wrecked car and returned to Shreveport. Pipes returned by mail the title to the car.

The testimony below is conflicting as to what was told Pipes by plaintiff’s father about the condition of the Hartsell Chevrolet. Pipes acknowledged he was told about the rear damage, but contends that he asked plaintiff's father about front end damage and was told that there was none except for slight damage to the grill and hood incurred when a wrecker towed it from the scene of the accident. Pipes contends that he would not have paid $225.00 had he known of the true condition of the car.

As a corroborating circumstance of Pipes’ testimony, the trial court mentioned the fact that Pipes had sent a small wrecker to Vivian to tow the car back to Shreveport on the asumption that the car was towable, when in fact it was not towa-ble.

Plaintiff’s father testified that he told Pipes that the car had been in a “head on” collision and that it was damaged in both the front and the rear.

Hartsell brought suit on the $225.00 check, payment on which was stopped by an order of Pipes to his bank. Pipes reconvened for expenses incurred in hiring Pilgrim for wrecker service and for damages for loss of time and inconvenience.

The trial judge concluded that there was no intentional misrepresentation or fraud and that both parties were in good faith. The court further concluded that there was no sale perfected in the instant case because there was no meeting of the minds as to the “essential quality” of the wrecked car. These conclusions are primarily questions of fact and we do not find that the trial court’s findings were manifestly erroneous. The trial judge’s findings of fact are entitled to great weight and should not be disturbed unless manifestly erroneous. Burt v. Burt, 160 La. 387, 107 So. 234 (1926); Winford v. Wilson, 59 So.2d 498 (La.App. 2d Cir. 1952); Cox v. Reliance Insurance Company, 284 So.2d 370 (La.App. 2d Cir. 1973).

On two occasions in recent years this court has considered and reviewed the civil code articles and jurisprudence relating to a factual error or mistake which will vitiate a contract.

In McClure, the error arose under a construction contract which was bid as a lump sum contract but on estimated quantities of materials with unit prices being used as the basis for the lump sum amount. Payment for work done under the contract was assumed by the contractor to be made under unit price projections for actual work, some of which exceeded the estimate on which the bid was based. The paying party assumed he would pay only the lump sum amount.

In Pierce, the error concerned the brand of an air conditioning compressor. The homeowner assumed he was getting a compressor of the same brand it was to replace. The contractor installed one of a different brand but equivalent to the one which it replaced. No mention was made of the brand by either party until after the replacement compressor was installed.

In each case this court found factual error sufficient to vitiate consent by the contractor in McClure and by the homeowner in Pierce.

Other circuits have applied these authorities and reached the same results in cases of factual error in dissimilar factual circumstances. See Jefferson Truck Equipment Co. v. Guarisco, 250 So.2d 211 (La.App. 1st Cir. 1971), and Humble Oil v. Chappuis, 239 So.2d 400 (La.App. 3rd Cir. 1970), writ refused 256 La. 915, 240 So.2d 375 (1970). In Guarisco, the purchaser ordered a specific model number crane under the mistaken assumption that it was of sufficient capacity to handle a particular assignment. In Chappuis, Humble mistakenly prepared and recorded a release of about 30 oil and gas leases but included a comparatively small amount of acreage which was yet in production and which did not have to be released. The acreage, which was unintentionally included in the formal release, was worth more than $1,500,000.00.

In McClure, supra, we said:

“One of the requirements for a valid contract under La.C.C. Art. 1779, is the legal consent of all parties thereto. La. C.C. Art. 1819 provides that there is no consent where it has been produced by error. La.C.C. Articles 1820, 1821 and 1823 define error which will invalidate an agreement:
“ ‘Art. 1820. Kinds of error
Error, as applied to contracts, is of two kinds:
1. Error of fact;
2. Error of law
“ ‘Art. 1821. Error of fact
That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.’
“ ‘Art. 1823. Sufficiency of error to invalidate contract
Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.’
“Our conclusions herein are supported by the decisions of the court in Meadors v. Cravy, 165 So.2d 546 (La.App. 2d Cir. 1964); National Company v. Krider, 150 So.2d 592 (La.App. 4th Cir. 1963); Pan American Production Co. v. Robichaux, 200 La. 666, 8 So.2d 635 (1942).
“[2,3] Even assuming there was error only on the part of McClure, the same result would obtain as unilateral error of fact is sufficient to abrogate a contract. Jefferson Truck Equipment Co. v. Guarisco Motor Co., 250 So.2d 211 (La.App. 1st Cir. 1971) and cases cited therein.” 276 So.2d 399-400.

In Pierce, supra, we noted that under La.C.C. Art. 1844 and Art. 1845, error as to the qualities of an object other than substance or substantial quality which gives the object its greatest value, will also serve "to vitiate consent if such qualities constitute the principal cause of making the contract.

In Guarisco, supra, it was said:

“[3] We find the case at hand falls within the ambit of LSA-C.C. art. 1845, which provides that a contract may be rescinded for error of fact as to the quality of an object which quality pertains to the principal cause of making the contract. Error as to the nature or object of a contract may be with regard to either the substance of the object of the agreement, or a substantial quality of the object, or of some other quality of the object if such quality is the principal cause of making the contract.
“LSA-C.C. art. 1843 provides that error as to the substance of the object of a contract is sufficient grounds for rescission of an agreement where one or both parties have made such an error. In this regard, art. 1843, above, declares:
“ ‘There is error as to the substance, when the object is of a totally different nature from that which is intended. Thus, if the object of the stipulation be supposed by one or both the parties to be an ingot of silver, and it really is a mass of some other metal that resembles silver, there is an error bearing on the substance of the object.’
“[4, 5] We see no valid basis for distinguishing between an! error as to substance, error as to a substantial quality, and error as to a quality which is the principal cause of a contract. We conclude, therefore, that unilateral error in any one of these respects constitutes ground for rescission of an agreement. We also find that LSA-C.C. art. 1845, which provides that a contract may be rescinded for error as to quality which constitutes the principal cause of a contract, must' be interpreted together with LSA-C.C. art. 1826, which states that error as to a principal cause of a contract does not vitiate a contract unless the other party to the agreement is apprised of the motive of the agreement or is presumed to know such motive.
“Pursuant to the foregoing codal provisions, our brothers of the Third Circuit held in Humble Oil & Refining Company v. P. J. Chappuis, II et al., 239 So.2d 400, that unilateral error as to the quality of an object which constitutes the principal cause of the agreement is sufficient ground for rescission where the other party is apprised of the motive or is presumed to have knowledge thereof. In so declaring, the court stated:
“ ‘Mutual error of fact is not necessary to abrogate a contract. Unilateral error is sufficient . . 250 So.2d 215-216 (Citations Omitted)

The trial court saw and heard the witnesses and accepted the testimony of Pipes and Pilgrim. Pipes assumed he was acquiring an automobile which was towable and which had not been in a head-on collision. On the basis of questions asked by Pipes, plaintiff’s father should have known or is presumed to have known the principal cause of Pipes’ purchase of the car or the qualities which Pipes desired in the car. Whether plaintiff’s father misrepresented the condition of the car or did not know of its true condition when he originally negotiated with Pipes, the result is the same. Pipes’ consent to the contract was vitiated by error and the trial court was correct in its judgment.

During the events leading up to this litigation and as a protective measure against theft, there was removed from the car a radio which is in the possession of Pipes. The trial court directed the radio be given to Hartsell or his father upon the request of either. We concur. The judgment below is affirmed at appellant’s cost.

      . See North Development Company v. McClure, 276 So.2d 395 (La.App. 2d Cir. 1973); Ouachita Air Conditioning, Inc. v. Pierce, 270 So.2d 595 (La.App. 2d Cir. 1972).


author: CULPEPPER, Judge.

text:
    Cecil MOBLEY and Iona S. Mobley, Plaintiffs and Appellants, v. Jack LEE, Defendant and Appellee.
    No. 5110.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Gaharen & Richey by Joseph Wilson, Jena, for plaintiffs-appellants.
    Long & Peters by Jimmie C. Peters, Jena, for defendant-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This is a petitory action. The plaintiffs claim ownership of 60 acres of land in LaSalle Parish, as heirs and as vendees of other heirs of Miss Artie Smith, who died in 1967. The defendant, Jack Lee, claims ownership by purchase from Mrs. Letha Mae Chapman Keene, who acquired the property by donation from Miss Artie Smith in 1966. Neither plaintiffs nor defendant claim to be in possession of the property. Both claim ownership by recorded titles originating in their common author, Miss Smith. The district court rendered judgment in favor of defendant, dismissing plaintiffs’ suit. Plaintiffs appealed.

The substantial issue is whether the 1966 donation from Miss Artie Smith to Mrs. Letha Mae Chapman Keene was purely gratuitous. If it was, then the subsequent unilateral revocation thereof by Miss Smith was of no effect, since the revocation was not for a cause permitted by LSA-C.C. Articles 1556-1560, nor by an action in accordance with Article 1561.

The evidence shows that prior to 1966 Miss Artie Smith owned and lived on the 60 acres in question. In the early part of 1966, Miss Smith became ill and was hospitalized. On her discharge from the hospital in the spring of 1966, she lived in a nursing home for a short time. Mrs. Keene removed her from the nursing home and took her to live in the Keene home in LaSalle Parish. After she had lived in the home with Mr. and Mrs. Keene and their six children for a period of about three months, Miss Smith asked Mrs. Keene to move with her back to the “Old Home-place”, which is the 60 acres in question. Mrs. Keene agreed, and they moved into an old house which was on the property adjacent to a smaller home into which Miss Smith moved.

On August 23, 1966, Miss Smith and Mrs. Keene appeared before a notary public and two witnesses and executed the act of donation in question. The act reads in pertinent part as follows:

“. . . Miss Artie Smith declared . . . that in consideration of the love and affection which she bears for her niece, LETHA MAE CHAPMAN KEENE, . . . and for her personal care, she does by this act and these presents irrevocably GIVE, GRANT, CONFIRM, DONATE AND DELIVER unto her said niece . the following described property, to wit: (emphasis supplied)
(Then follows a description of the 60 acres.)
“And now LETHA MAE CHAPMAN KEENE, a person of the full age of 'majority, and a resident of and domiciled in LaSalle Parish, Louisiana, does hereby personally appear in the presence of the undersigned witnesses and me, Notary, and accepts the said donation made to her aforesaid, for herself and her heirs, successors and assigns, and acknowledges due delivery and possession of the above described property, so donated to her.
“TO HAVE AND TO HOLD the above described property unto the said DO-NEE, her heirs and assigns forever.
“It is understood by and between DONOR AND DONEE that the property hereinabove donated is intended as an extra portion for Donee and as an advantage to be received by her over and above her co-heirs in the settlement of. Donor’s Succession.”

The Keenes lived on the property for about one year. During this period of time, Miss Smith, although suffering from a malignant brain tumor, was able to take care of herself and live alone in her little house, except that the Keenes took her to the doctor and to buy groceries and to other places requiring use of an automobile.

During the early part of 1967, trouble developed between Miss Smith and the Keenes. According to the testimony of Mrs. Keene, Miss Smith, because of her brain tumor, became irrational. She says that there was no argument or disagreement, but that Miss Smith said that the six children “bothered her.”

Mrs. Keene testified that one of the most irrational things Miss Smith did was to sit on her front porch with a rifle in her hands. Mrs. Keene became alarmed for the safety of her six children and consulted Miss Smith’s physician. The doctor advised Mrs. Keene to move because of the possibility of Miss Smith harming someone.

On July 3, 1967, Miss Smith appeared before a notary in Jena and executed a revocation of the donation. In the revocation, Miss Smith states “the same was an onerous donation given for the promise of the personal care of herself by the donee therein, appearer being an aged woman 78 years of age living alone and unable to herself take care of her personal needs, the donee having obtained the said donation of said property from her on the promise that she would personally look after and care for her all the rest of her life and take care of her personal attention and needs so long as she might live.” In the act of revocation, Miss Smith states further that the donee had failed to care for her and had moved from the property in question and evidenced no intention of taking care of Miss Smith for the remainder of her life. The instrument concludes by a statement that the donation is revoked. Mrs. Keene did not sign the act of revocation.

Mrs. Keene testified she knew about the act of revocation the day it was executed. She insists that she continued to live on the property for a short time after the revocation was signed. However, Mrs. Keene admittedly moved from the property to another home in LaSalle Parish. She says the reason she moved was on the advice of Miss Smith’s doctor and because she was afraid that Miss Smith might harm one of her children.

On October 27, 1967, Mrs. Keene sold the property to the defendant, Jack Lee, for the price of $2,500. Mrs. Keene testified that when she was approached by Lee with an offer to purchase, she consulted an attorney who finally advised her that she owned the property and could sell it despite the act of revocation.

Miss Smith died during the latter part of 1967, the exact date of her death not being clear from the record. On March 20, 1973, a judgment of recognition and possession was rendered in her succession. Plaintiffs were recognized as two of the heirs. They also purchased certain interests from other heirs. They filed the present suit on June 8, 1973.

As stated above, the substantial issue is whether the act of donation was purely gratuitous or was onerous.

LSA-C.C. Article 1523 provides:

“There are three kinds of donations inter vivos:
“The donation purely gratuitous, or that which is made without condition and merely from liberality;
“The onerous donation, or that which is burdened with charges imposed on the donee;
“The remunerative donation, or that the object of which is to be recompense for services rendered.”

Since the onerous donation and the remunerative donation are not real donations, the rules peculiar to donations inter vivos do not apply to them, LSA-C.C. Articles 1524 — 1526. In consequence thereof, the rules restricting the causes for revocation of a donation inter vivos apply only to purely gratuitous donations and not to onerous or remunerative donations. These rules regarding revocation are set forth in the following code articles:

“Art. 1559. Donation [Donations] inter vivos are liable to be revoked or dissolved on account of the following causes :
“1. The ingratitude of the donee;
“2. The non-fulfillment of the eventual conditions, which suspend their consummation ;
“3. The non-performance of the conditions imposed on the donee;
“4. The legal or conventional return.”
“Art. 1560. Revocation on account of ingratitude can take place only in the three following cases:
“1. If the donee has attempted to take the life of the donor;
“2. If he has been guilty towards him of cruel treatment, crimes or grievous injuries;
“3. If he has refused him food, when in distress.”

The defendant contends, and the district judge held, that the act of donation is purely gratuitous, and therefore the subsequent revocation by Miss Smith, not being in accordance with the rules set forth in LSA-C.C. Articles 1559-1561, is of no effect.

The plaintiffs argue that the act of donation is ambiguous. They say the clause “for her personal care” is susceptible of three different constructions: (1) It could mean the property was donated to Mrs. Keene on condition that she furnish in the future personal care to Miss Smith, in which event the donation is onerous. (2) It could mean that the consideration was for past care furnished by the donee to the donor, in which event the donation is remunerative. (3) It could mean that the property was for the personal care of Mrs. Keene, in which event the donation is purely gratuitous.

It is the contention of the plaintiffs that since the act of donation is ambiguous, parole testimony was admissible to show the intent of the parties, and that the testimony which was introduced shows the parties intended that the donation is onerous.

If the donation is in fact onerous, as plaintiffs contend, then it is not a real donation and the rules for the construction of contracts apply. These rules, LSA-C.C. Articles 1945-1962, state generally that the words of a contract must be construed according to their general use and that in determining whether there is ambiguity, the entire contract as a whole must be considered. As the trial judge pointed out in his well considered reasons for judgment, the donor in the present case declared that the donation is “in consideration of the love and affection which she bears for her niece.” The donor further states that she “irrevocably” gives, donates, etc. the property to her niece, “to have and to hold . forever.” The words of the donation as a whole show an intention on the part of the donor that it be purely gratuitous. The only words which can possibly raise any question as to the gratuitous nature of the donation are contained in the clause “for her personal care”. Plaintiffs contend that the use of the pronoun “her” raises a question as to whose care was intended, Miss Smith’s or Mrs. Keene’s.

The following article of our Civil Code is particularly applicable here:

“Art. 1958. But if the doubt or obscurity arises for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or ob-ligee.”

In the present case, the clause “for her personal care” is contained in that portion of the donation in which Miss Smith states her intention. She fails to make it clear whose “personal care” was intended. Furthermore, Miss Smith did not make it clear whether the care referred to was the past care furnished, or future care to be furnished, by Mrs. Keene. The clause must therefore be construed against Miss Smith and in favor of Mrs. Keene.

We note particularly, that insofar as the statement of acceptance by Mrs. Keene is concerned, there is no declaration that she accepts the donation subject to any condition whatever creating an obligation on her part to care for Miss Smith.

It is our conclusion that construing the instrument as a whole and applying the rules set forth above, the act of donation is not ambiguous, or, if it be ambiguous, ft must be construed against the donor, who failed to make it clear, and in favor of the donee.

Nevertheless, even assuming for the sake of argument that the words used in the act of donation are ambiguous, we think the parole evidence as to all of the facts and circumstances shows also the intention of the parties was that the donation be purely gratuitous and not onerous. The plaintiffs stress the following as supporting their contention that the donation was onerous: (1) At the time of the act of donation, the donor was 78 years of age and in poor health and was in need of personal care, whereas the donee was not in need of care. (2) In the act of revocation, Miss Smith clearly states her intention was to donate the property to Mrs. Keene on condition that the donee take care of the donor for the remainder of donor’s life. (3) After the act of revocation was signed by Miss Smith, Mrs. Keene acquiesced in the revocation of the donation by moving from the property.

At the trial, Mrs. Keene testified clearly that it was not her intention to accept the donation on condition that she care for Miss Smith for the remainder of her life. On the contrary, Mrs. Keene testified that although she was not sure what the clause “for her personal care” was intended to mean, she was already taking care of Miss Smith at the time they moved back to the homeplace and intended to continue to take care of Miss Smith regardless of the donation or the revocation. Of course, the facts show that Mrs. Keene actually did take care of Miss Smith until, on the doctor’s advice, she moved for fear that Miss Smith would harm one of her children. Mrs. Keene testified also that she explained to the other members of the family that she thought Miss Smith’s condition was such that she should be moved to a hospital or a nursing home where she could receive proper care for her deteriorated condition.

The trial judge saw and heard the witnesses and he concluded that, even if the parole testimony is considered, it shows the intention of the parties was that the donation be purely gratuitous, and not onerous. We find no manifest error in this evaluation of the evidence by the district judge.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiffs appellants.

Affirmed.


text:
    Carlton SAM, Plaintiff-Appellant, v. Frank KENDRICK, d/b/a Kendrick Excavating Service and United States Fidelity & Guaranty Company, Defendants-Appellees.
    No. 5042.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.

      Domengeaux & Wright, by William H. Lambert, Lafayette, for plaintiff-appellant.
    Lewis & Lewis, by Seth Lewis, Jr., Ope-lousas, for defendant-appellee.
    Before HOOD, CULPEPPER, and WATSON, JJ.
   HOOD, Judge.

Carlton Sam instituted this suit to recover workmen’s compensation benefits from his employer, Frank Kendrick, d/b/a Kendrick Excavating Service, and the latter’s insurer, United States Fidelity & Guaranty Company. The trial court rendered judgment for defendants, and plaintiff appealed.

The issues presented are (1) whether plaintiff has been disabled since the payment of compensation benefits was discontinued, and (2) whether plaintiff is entitled to benefits for the permanent partial loss of the use of a member, under LSA-R.S. 23:1221.

Plaintiff sustained a disabling injury on September 22, 1970, during the course of his employment as a construction worker for defendant Kendrick. The defendant was engaged in laying a pipeline at a jobsite in Mississippi at that time, and a trailer loaded with pipe ran over plaintiff’s right leg and ankle. As a result of that accident, plaintiff sustained injuries consisting principally of a trimalleolar fracture of the right ankle. He received medical treatment immediately in Mississippi, the treatment consisting in part of the application of a long leg cast, and he then returned to his home in St. Landry Parish, Louisiana.

Dr. Frederick L. Mayer, an orthopedic surgeon of Opelousas, treated plaintiff from September 28, 1970, until January-19, 1972. The treatment administered by Dr. Mayer included three surgical procedures, the application of leg casts and physical therapy. An open reduction and internal fixation of the ankle, with the use of stainless steel screws, was performed on September 29, 1970. The screws were removed on February 25, 1971, hospitalization and surgery being required for that procedure. Sam was hospitalized a third time on October 6, 1971, for the surgical exploration of his ankle, at which time a tenolysis of the perineal longus and brevis tendons was carried out.

Despite the prolonged period of treatment, plaintiff’s ankle healed in satisfactory position and with no abnormalities. Dr. Mayer discharged plaintiff on January 19, 1972, as being able to return to his former employment, being aware of the fact that that employment required heavy manual labor. He testified that plaintiff at that time had approximately a five percent loss of passive dorsal flexion of the right ankle, and that that condition was permanent. For that reason, he estimated that Sam had a ten percent permanent impairment of the right foot, or an eight percent permanent impairment of the right lower extremity. He felt, however, that despite that impairment, plaintiff was able to perform all of the duties of his former employment. His testimony, in part, is as follows:

“My opinion was at the time I last saw him on January 19, 1972, I felt that the ankle had healed to a degree where the ankle could stand up to heavy manual labor. . . .
“I can only answer you based upon my last examination of January 19, 1972, at which time I felt that the ankle was sufficiently healed that the man could return to work . . .
“. . . it was my opinion that the ankle was able to withstand the so-called trauma of heavy manual labor as of January ....
“I feel that the ankle will withhold the stress of standing 8 to. 10 to 12 hours of walking or bending or squatting. The fracture was healed and there was no abnormalities as of January 19 to suggest otherwise . . . .”

Plaintiff was examined by Dr. Francis C McMains, an orthopedic surgeon of Baton Rouge, on March 29, 1972. Dr. Mc-Mains found that the fracture of plaintiff’s ankle had healed “in good position and alignment,” but he also found some swelling in both of Sam’s legs, more so in the injured one, and a limitation of motion or flexion of the right ankle. From his objective findings and plaintiff’s complaints, he concluded that Sam was experiencing pain in the subtalar joint just below the ankle. Dr. McMains’ examination also revealed that plaintiff had some cardiac problems, not related to the accident, which he felt contributed to the swelling in his legs. His ultimate conclusion was that because of the persistence of loss of motion and residual swelling, plaintiff had 25 to 30 percent permanent disability of his right lower extremity, and that he was not capable of returning to his employment.

Two lay witnesses, plaintiff’s daughter and a neighbor, testified that plaintiff had been in good health and had worked regularly prior to the accident, but that he has limped and used a walking cane and had not worked since the accident occurred.

Plaintiff is fifty years of age. He has had very little formal education and for many years has performed construction work requiring heavy manual labor. He has performed no work of any kind since the accident occurred. He testified that he cannot “put weight on” his ankle, that it “won’t stand any pressure,” and that it pains him and swells when he attempts to work.

The evidence shows that Sam has limped and has used a cane in walking since the accident occurred. He also walks with his right foot turned outwards, or to the side. Dr. Mayer feels that the limp was not due to any deformity, pain or loss of motion of the ankle, but that it was due for the most part to the habit of having-walked that way since the accident. He based that conclusion on the fact that he could find no significant physical orthopedic abnormalities that would explain the limp. Dr. McMains feels that plaintiff’s limp is due to the limitation of motion in the ankle and to pain in the subtalar joint.

Workmen’s compensation benefits were paid to plaintiff from the date of the accident until February 21, 1972. The payments were discontinued on the last mentioned date in view of the report of plaintiff’s treating physician that he was able to return to work.

Judgment was rendered by the trial court rejecting plaintiff’s demands. The trial judge did not assign reasons for judgment, but it is apparent that he accepted the testimony of Dr. Mayer, the treating physician, and concluded that plaintiff has not been disabled since defendants discontinued the payment of compensation benefits.

The opinion of the treating physician who has been in close contact with the patient over a long period of time is entitled to greater weight than that of an equally well qualified physician who has not had the benefit of close and frequent contact and examination. Nixon v. Pittsburgh Plate Glass Co., 161 So.2d 361 (La.App. 3 Cir. 1964); D’Avy v. Bituminous Casualty Company, 255 So.2d 645 (La.App. 3 Cir. 1971).

In the instant suit both of the physicians who testified were orthopedic surgeons. Dr. Mayer treated plaintiff over a long period of time, and had an opportunity to examine and to observe him many times. Dr. McMains, on the other hand, examined plaintiff only one time, about 18 months after the accident occurred, and his examination was made for the purpose of trial instead of for treatment. Under these circumstances we cannot say that the trial judge erred in accepting the testimony of the treating physician.

Our conclusion is that the evidence fails to establish that plaintiff has been disabled since February 21, 1972, the date on which the payment of compensation benefits was discontinued. We find no error in the judgment rendered by the trial court rejecting plaintiff’s demands.

We also find no merit to plaintiff’s alternate claim that he is entitled to benefits based on the permanent partial loss of the use or function of his right leg, under LSA-R.S. 23:1221. In the first place, we are not convinced that plaintiff has a 25 or 30 percent loss of the use of his leg, as he contends. Instead we are inclined to accept the opinion expressed by Dr. Mayer that he has a ten percent permanent partial loss of use of his foot or an eight percent loss of use of his leg.

Second, it appears to us that the aggregate amount of compensation benefits which have been paid to plaintiff amount to more than the sum which would be due him under LSA-R.S. 23:1221, whether the benefits are computed on the basis of the loss of use of the foot or of the leg. Plaintiff has received payments of $49.00 per week for 74 weeks, making a total of $3,626.00. The record does not show what his wages were at the time of the accident, but in the absence of such a showing we conclude that with an eight or ten percent permanent partial loss of use of either a foot or a leg, the weekly payments due him would be the minimum provided in LSA-R.S. 23:1202. According to our figures, the payments already made to plaintiff exceed any amount which otherwise might be due him under LSA-R.S. 23:1221 for the permanent partial loss of use of a member.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Affirmed.