author: SCHOTT, Judge.

text:
    Jean Howard, wife of/and Floyd Y. HOWARD v. A. J. SCANDALIATO and Allstate Insurance Company.
    No. 7429.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Jacob L. Karno, Metairie and George C. Ehmig, for plaintiffs-appellees.
    • Murphy & Simon, E. Kelleher Simon, New Orleans, for defendant-appellant.
    Before LEMMON, SCHOTT and MOR-IAL, JJ.
   SCHOTT, Judge.

This is a suit for personal injuries and medical expenses resulting from an accident which occurred on March 3, 1972, when the automobile of plaintiffs was struck from the rear by an automobile being driven by the minor son of defendant Scandaliato and insured by Allstate. The trial judge awarded against Allstate alone general damages to Mr. and Mrs. Howard of $50,000 and $10,000 respectively, and to Mr. Howard $8,086.20 for medical expenses incurred by both plaintiffs. Defendant has appealed, contending that the awards are excessive, and plaintiffs have answered the appeal contending that the awards for general damages are inadequate. Liability is not in dispute.

As to Mrs. Howard, the trial judge found that she “suffered chronic muscle and ligament sprains in her neck, back, and arm over an extended period and was required to use a back support . . .” and that “an award of $10,000 to [her] is fair compensation for her past and future mental and physical pain and suffering.” The record does not reveal an abuse of discretion in this award.

Mrs. Howard was examined by her physician, Dr. Macalusoi on March 6, and he diagnosed cerebral concussion and cervical and lumbar sprains based upon subjective complaints and objective findings of muscle spasm. He prescribed medication and diathermy treatments. By the following month her neck was worse and she complained of pain in her right arm and hand, weakness in her right thigh and pain in her knee. A neck collar was prescribed which she wore for seven weeks. Medication and diathermy treatments were continued until June 5, 1972. On her next visit to Dr. Macaluso on January 22, 1973, he felt that she “was going as well as could be expected” and he discharged her. The following month she telephoned him and complained of more back and neck pain, whereupon he referred her to a neurosurgeon, Dr. Llewellyn.

Dr. Llewellyn examined her on February 19, 1973, and diagnosed muscle and ligament soreness at the base of the skull, neck tenderness and soreness of the mid and lower lumbar segments. Dr. Macaluso saw her again on March 8, 1974, when she was still complaining of pain in the neck, shoulder, elbows, knees and back. His examination revealed tenderness in the cervical and lumbosacral areas for which he prescribed medication and home heat application. He again saw Mrs. Howard in February, March and May, 1975, three weeks before trial, and on the basis of his examination his impression was a possible ruptured lumbar disc and/or lumbosacral instability syndrome and/or chronic cervical sprain instability. He believed her symptoms would continue for another year or two. In the meantime she was again examined by Dr. Llewellyn on February 28 and he found muscle spasm in the neck and low back which he believed were related to the 1972 accident. He recommended a myelo-gram since he was of the opinion that her injury was more serious than muscle and ligamental strains.

In her testimony, Mrs. Howard denied having any other accidents or traumatic events over this period of time and explained that her failure to seek continued medical treatment was due to to the fact that she was preoccupied with her husband’s injuries. Her testimony was apparently accepted by the trial judge and Dr. Llewellyn’s objective finding of spasm over three years after the accident supports the award of the trial judge.

However, included in her husband’s award for special damages was an unrecoverable $30 for Dr. Macaluso’s report to her attorney and $316.69 for drug bills. Except the sum of $40, which is shown on the drug bills to have been prescribed by Dr. Macaluso, the balance was prescribed by one Dr. Touchy. The treatment given Mrs. Howard by Dr. Touchy was unrelated to the accident, so that to this extent the prescription bills are not recoverable and the judgment must be amended accordingly.

As to Mr. Howard, the trial judge said the following in his reasons for the award of $50,000:

“[He] struck his head aggravating a previous brain injury.
“He also suffered a cervical strain and was required to wear a neck collar and use a home traction device. As a result of the March 3, 1972 accident, Mr. Howard suffered aggravation of emotional depression which will require extensive therapy. Additionally, he developed ulcers which necessitated treatment. As a result of the above, Mr. Howard suffered a serious impairment of his intellectual capacity and is unemployable.”

Mr. Howard’s case is complicated by the fact that in August, 1971, he suffered injuries in a rearend collision, providing the basis for a previous lawsuit which went to trial in June, 1974, and after two days of trial was settled and compromised. Defendant concedes that the injuries resulting from the 1972 accident, when placed in the best possible light from Howard’s point of view, consisted of aggravation of his previous injuries for which he was already compensated by the settlement of the earlier case, but contends that such a mere aggravation cannot support the award of the trial court.

The injuries sustained by plaintiff in both accidents are in two general categories. The first includes cervical strains which plaintiff suffered in both accidents. At the time of the second accident, plaintiff apparently had recovered from the first cervical strain and apparently suffered an original cervical strain from the second accident as opposed to a mere aggravation of the first. This part of the case does not seem to be in great dispute but it is clear that this particular aspect of plaintiff’s injury from the second accident would not alone support much of the $50,000 award. The other category of injuries consists of organic brain damage with related emotional depression and ulcers, causation of which is the primary issue in the case.

Shortly after the first accident, plaintiff’s treating physician, Dr. Shushan, an internist, suspected that plaintiff had sustained a contusion of the brain. This suspicion was based primarily on plaintiff’s state of depression, demonstrated not only by conversation with plaintiff but also by a test which Dr. Shushan administered. Plaintiff also complained of headaches which in the doctor’s judgment were of a type consistent with brain damage as opposed to the type of headaches normally associated with a cervical strain. The physician’s suspicion of brain damage seemed to be confirmed by an abnormal electroencephalogram made on the plaintiff in September, 1971, and an abnormal brain scan made on the plaintiff in October. However, when plaintiff was referred by Dr. Shushan to the neurosurgeon, Dr. Llewellyn, for evaluation, this physician found no abnormal neurological findings and concluded that plaintiff’s only problem was a cervical strain. Plaintiff had complained to Dr. Llewellyn about the headaches, dizziness and a “feeling of vagueness in the head,” and he re-examined plaintiff in December. The tests were again abnormal, but the doctor felt that plaintiff’s condition had improved since his first evaluation in October. Dr. Shushan continued to treat the plaintiff with medication for his depression, headaches and insomnia, and by February 22, 1972, his condition had improved but the doctor retained his impression that plaintiff had suffered organic brain damage in the first accident. Plaintiff had returned to work as a collector for an amusement machine company in November.

On March 7, 1972, after the second accident, which is the subject of this suit, Dr. Shushan examined plaintiff and diagnosed primarily another cervical strain. He saw plaintiff on March 17, March 28 and April 11, 1972, and in this period he found primarily symptoms of the cervical injury. Depression was not particularly noted at this time. However, on April 17, 1972, Dr. Shushan found that plaintiff’s condition had changed drastically. Plaintiff complained of severe pain from headaches and the doctor was amazed to find that plaintiff had a great deal of brain damage with organic brain syndrome; he was just like a person who had become senile; was not oriented as to the date and month; he could not add or subtract simple things; and other evidence on testing showed him to be “a very, very sick man.” The doctor characterized these changes as sudden, “a marked acute change,” and he admitted plaintiff to the hospital for studies.

While in the hospital plaintiff was evaluated by a psychiatrist who had the impression that plaintiff suffered “an exacerbation of a chronic depressive neuroses with a lot of underlying raw, frustrated rage and increased dependency needs.” He found evidence that plaintiff was suffering from an organic brain syndrome, post traumatic, which should be substantiated by psychological testing. Plaintiff was also re-evaluated by Dr. Llewellyn who thought that plaintiff was showing neurological signs of injury for the first time with weakness on the right side of his face. He believed that plaintiff’s problems were markedly worse than they had been on his previous evaluation in December. Plaintiff was evaluated by a psychologist on April 26 and he reported a pattern of performance consistent with brain dysfunction and that plaintiff was a severely depressed individual. Shortly after his discharge from the hospital in April an additional EEG and another 'brain scan were made on plaintiff and revealed abnormalities. Over the next several months plaintiff remained under Dr. Shushan’s care and he was treated for his cervical strain and depression. His depression had lessened with the medication he was taking but he continued to suffer with headaches. He became more alert and his brain functions improved. However, in December he began to hemorrhage, he was hospitalized and was found to have developed an ulcer. He remained in the hospital for eleven days.

In January, 1973, plaintiff returned to his work and gradually thereafter depression and anxiety built up in the patient. Treatment with medication continued with some success although his mental state remained essentially the same, and in May he suffered a flareup of trouble from his ulcer. In August, 1973, plaintiff developed a tremor on the right side of his body. Dr. Shusan associated this with partial paralysis, and felt that this development confirmed his original suspicion that plaintiff had suffered damage to the left side of his brain. Dr. Shushan then referred plaintiff to Dr. Howell, a neurologist, and another psychologist for evaluation.

On the basis of his tests, Dr. Howell diagnosed probable cerebral concussion from the 1971 accident affecting the left side of plaintiff’s brain. He felt that the tremor was related to the trauma. He saw plaintiff in November, April and July of 1974, and in January, March and May of 1975. An EEG in late 1973 showed an abnormality on the left side of plaintiff’s brain. Plaintiff complained to him of headaches, depression, an inability to count money in his job as a route collector or to add and subtract, and that as time went on his memory had worsened. Dr. Howell’s final diagnosis was contusion of the brain, which he would relate for the most part to the 1971 accident. He thought that the 1972 accident had caused a mild to moderate aggravation of his depression, but that the neurological findings were not related to the 1972 accident.

The psychologist, Dr. Galese, who examined plaintiff in September, 1973, compared his findings with those reported by the psychologist who had evaluated plaintiff in April, 1972, and he concluded that there was an increase in loss of function of the frontal lobe of the brain. He did not think plaintiff’s problems at that time could be exclusively related to the first accident, and on examination in February, 1975, he found that plaintiff’s condition had worsened. His tests indicated brain dysfunction and implied brain damage. He thought that the second accident certainly increased plaintiff’s emotional difficulties, personality problems, brain dysfunction and his reasoning capacity. He characterized the result of the second accident as a moderate to severe aggravation of decreased brain functioning.

Another psychiatrist evaluated plaintiff in January, 1975, and concluded that he had sustained “organic brain damage, minimal type” as opposed to “gross brain damage.”

By the end of 1973 Dr. Shushan found that plaintiff had become incapable of performing his job as a collector, and in January plaintiff reported that he was fired because of the many errors he was making. From that time until the date of the trial of this case in May, 1975, plaintiff continued to be treated by Dr. Shushan primarily with a variety of drugs for his mental and emotional problems. Dr. Shushan concluded that plaintiff was permanently injured with brain damage and was incapacitated from work without hope for rehabilitation. He estimated that all of plaintiff’s problems were caused, 50% by each of the accidents and the plaintiff would require future medical care at a cost of $4500.

The foregoing evidence is overwhelming to the effect that plaintiff endured severe mental and physical suffering as a result of both accidents. He is permanently disabled and an actuary estimated that his loss of earnings, based upon his life expectancy at age 53, would amount to approximately $100,000. In addition to the medical expense which Dr. Shushan projected he will undoubtedly incur expenses for drugs which, at the time of the trial, had already amounted to almost $1,000. The volume of drugs, such as tranquilizers, anti-depressants and pain relievers, all of various degrees of strength, taken by this plaintiff over the period of time between the first accident and the date of the trial is noteworthy. In any event, the problem of the case is not that a total award of $100,000 for such injuries from one accident would be excessive but defendant’s contention that the greater part of plaintiff’s suffering was the result of the first accident based on his own pleadings, testimony and medical witnesses.

At this point, some of defendant’s points should be noted. In plaintiff’s original petition in this case, filed in February, 1973, he claimed damages only to his neck and back. In August, 1974, he amended his petition and for the first time alleged that he suffered aggravation of a pre-existing brain injury. In the meantime, in June, 1974, he had begun the trial of his previous case arising out of the 1971 accident and made his settlement.

At the earlier trial Howard testified that the 1972 accident had resulted merely in neck problems. At a deposition taken in April, 1973, Howard minimized the second accident to the effect that “it just stirred up [his] neck and [his] back, that was all.” When asked about the inconsistency between these statements and his testimony at the second trial he simply claimed that he could not remember the earlier testimony. When Dr. Galese examined Howard in 1973, Howard made no mention of the 1972 accident and indeed the doctor was not even aware of it.

The testimony of Drs. Shushan and Llewellyn at that previous trial was almost identical to the testimony of these physicians in the present case, except that the testimony in the present case continues beyond the date when the first trial was held. But at the first trial, it was quite remarkable that Dr. Shushan testified that plaintiff’s troubles were caused by the first accident, and in answer to the question of how the March 3, 1972, accident affected plaintiff’s physical condition, Dr. Shushan said:

“Temporarily flared up his neck symptoms and it flared up the picture, but it was in my opinion a mnior accident compared to the first one. We already had evidence that his brain had been damaged before the accident or the second accident had occurred.”

At the first trial Dr. Shushan did say that the second accident had some effect on plaintiff’s condition:

“I graded the second accident as a minor thing. It did flare up the problem. In evaluating proportionately the two I consistently felt that the first one was the major thing.”

Similarly, Dr. Llewellyn’s testimony at the first trial indicated that plaintiff’s troubles resulted from the first accident, but Dr. Llewellyn explained that his testimony at the first trial was based upon hypothetical that the second accident involved only a cervical strain whereas the opinions expressed at the second trial were now based upon hypotheticals and evidence that the second accident involved much more.

As to Dr. Shushan, he was vigorously cross-examined by able counsel for defendant on the point that he changed his testimony from that given at the first trial, but Dr. Shushan maintained that his testimony was not changed essentially since at the first trial he did testify that plaintiff’s mental condition was worsened as a result of both accidents, that both of them contributed to his emotional and mental problems as well as his ulcer, and specifically that in a report in January, 1973, to plaintiff’s attorney he expressed the opinion that plaintiff’s ulcer “was due to stress and this could be related to both accidents.”

In all fairness to defendant, it does appear that Dr. Shushan’s testimony in the first case was slanted to emphasize the first accident and de-emphasize the second accident, while the testimony at the second trial was slanted to emphasize the seriousness of the second accident as a cause of plaintiff’s problems.

All of these inconsistencies, along with others, brought out by defendant do serve to illustrate that plaintiff adopted two inconsistent patterns in the presentation of his two claims. They demonstrate an effort by plaintiff to show the first accident as the cause for practically all of plaintiff’s problems until the time when the first case was settled and then a change to show that the second accident was the cause, but we are not convinced that, as a matter of law, this compels a reversal or modification of the trial court’s award considering all the circumstances.

There was no adjudication after the first trial but a settlement was made. We cannot say that some percentage of the total damages attributable to the second accident was paid for in the first settlement any more than we can say that the first settlement was perhaps an over-payment, since it was ostensibly being made for damages sustained only in the first accident. It is arguable that had the case been tried to a conclusion and judgment rendered after the first trial the court might have concluded that plaintiff sustained little of his damages from the first accident and the judgment would have so reflected. This is all speculative.

We know only that the trial judge in the instant case awarded plaintiff $50,000 for injuries finally suffered by plaintiff which are indeed serious and permanently disabling. If the trial judge thought these damages in total were worth $100,000 and therefore awarded plaintiff $50,000 by attributing half of the damages to the second accident, there is evidence in the record to support that decision. As a matter of fact it may be that the trial judge thought that plaintiffs total damages were worth well in excess of $100,000, but taking into consideration the equivocation found in Dr. Shushan’s testimony, he awarded plaintiff something less than 50% of the total damages as a result of the second accident. This, too, finds support in the record. We cannot conclude that the trial judge abused his discretion in making the award.

However, we do conclude that the trial judge was in error in awarding to plaintiff 100% of all medical and doctor bills incurred by plaintiff after the date of the second accident. Plaintiff is bound by the testimony of Dr. Shushan that he would attribute to the second accident not more than 50% of the cause of his problems. If it is so that plaintiff’s injuries would not have been as severe except for the second accident, defendant should be cast for only 50% of the bills incurred with the East Jefferson Hospital, Baptist Hospital, Dr. Galese, Browne-McHardy, Dr. Gelder, Dr. Llewellyn, Dr. Howell, Dr. Prickett and Dr. Shushan, as well as plaintiff’s drug bills.

Therefore, the total award for special medical expenses must be reduced by $3,487.91 in addition to the reduction of $276.69 from the drug bills incurred for Mrs. Howard and $30 from Dr. Macaluso’s bill.

Accordingly, the judgment appealed from is affirmed, but is amended to the extent that there is judgment in favor of plaintiff, Floyd Howard, against defendant, Allstate Insurance Company, in the sum of $54,291.60 plus interest and all costs.

AMENDED AND AFFIRMED.

      . The personnel manager of plaintiff’s employer testified that plaintiff’s work was “fine” for the first three months but after the March, 1972, accident there was a big change in plaintiff’s health “which hampered him in his job.”


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Edmond P. WOLFF v. Charles FLANAGAN, d/b/a Cadillac Plastic & Chemical Co. and Rohm and Haas Company.
    No. 7079.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Sept. 29, 1976.

      Francipane, Regan & St. Pee’, Richard T. Regan, Metairie, for plaintiff-appellee.
    Beard, Blue, Schmitt & Mathes, Lawrence J. Duplass, New Orleans, for Charles Flanagan, d/b/a Cadillac Plastic & Chemical Co., defendant-appellant.
    Deutsch, Kerrigan & Stiles, Russell L. Dornier, New Orleans, for Rohm and Haas Co., defendant-appellant.
    Before SAMUEL, LEMMON and MORTAL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against the defendants, Charles Flanagan, d/b/a Cadillac Plastic & Chemical Co., from whom he, purchased 26 sheets of one-quarter inch thick Plexiglas, and Rohm and Haas Company, the manufacturer on the Plexiglas sheets, seeking to rescind the contract of sale and damages in the amount of $3,929.-80.

Both defendants answered, denying liability. In addition, Flanagan filed a third party petition against Rohm and Haas seeking indemnity for any sums which he might he compelled to pay to the plaintiff.

After a trial on the merits, there was judgment on the main demand in favor of plaintiff and against both defendants, in solido, in the sum of $2,500 and, on the third party demand, in favor of the third party petitioner, Flanagan, and against Rohm and Haas, in an amount equal to whatever Flanagan pays in satisfaction of the judgment against him on the main demand. Both defendants have appealed, Rohm and Haas from the entire judgment and Flanagan only from that part of the judgment rendered against him.

Plaintiff, a general contractor, completed construction of his own home on Folse Drive in Metairie, Louisiana, in December, 1971 and January, 1972. The home includes a swimming pool which initially had been contemplated to be open at the rear of the house. However, after construction had begun, plaintiff decided to enclose the pool with a glass structure.

Plaintiff erected a wooden frame and appropriate supporting members, but after encountering difficulties and unexpected expense with the use of glass, he decided to seek an alternative material. He visited the business premises of the defendant Flanagan and there spoke to Flanagan and an employee, Eldridge Serpas. Plaintiff told both Flanagan and Serpas he intended to enclose a pool with Plexiglas sheets, and they showed him a brochure furnished by Rohm and Haas which contained a picture of a swimming pool enclosed with Plexiglas. Plaintiff contends on the basis of the picture shown to him and in reliance on the statements by Flanagan and Serpas, he purchased the Plexiglas sheets and commenced to install them on the wooden framework already erected for glass. He was unable to testify when he was furnished a copy of the booklet. However, both Flanagan and Serpas testified without equivication he was furnished the booklet at the time of his initial visit to Flanagan’s establishment.

Shortly after the installation of the Plexiglas, there were two minor leaks in the roof of the pool enclosure. Plaintiff attributed these to improper caulking, and efforts at recaulking proved fairly successful. During the summer of 1972 he began to experience more severe and more repeated episodes of leakage through cracks between the fiberglass sheets. Photographs introduced by plaintiff show the Plexiglass began to show concave indentations, and it was explained that when water collected in these indentations, the edges of the Plexiglas were pulled upward and away from each other, thereby allowing water to come between and under the sheets of Plexiglas and leak into the pool enclosure. There is no contention by plaintiff that there is any defect per se in the Plexiglas sheets themselves.

As has been pointed out, plaintiff is a general contractor. He obtained a discount because of that fact when he purchased the Plexiglas material. He nevertheless denies familiarity with the properties of Plexiglas. However, the booklet with which he was furnished from the inception of the transaction contains extensive detail on the properties of Plexiglas and the proper manner for its installation. The booklet is sufficient to put even a layman untrained in building techniques on notice that the horizontal installation of Plexiglas is entirely different from the vertical installation of that material, with the normal horizontal installation involving a dome or bubble configuration being given to Plexiglas sheets.

The necessity for a dome shape horizontal installation of Plexiglas is repeated throughout the booklet furnished plaintiff by defendant. His testimony reflects he did not read the entire booklet prior to installing the Plexiglas. For example, the booklet emphasizes the necessity for channel installation of Plexiglas, particularly in a horizontal configuration, to allow for expansion and contraction in atmospheric conditions. On the contrary, plaintiff fastened the Plexiglas to the wooden framework for the pool enclosure by screws or bolts which do not afford the Plexiglas the freedom to expand or contract. The major deviation by plaintiff from the recommended installation procedures was his failure to install the Plexiglas sheets with a domed configuration, since the Rohm and Haas booklet made very clear that Plexiglas would “deflect” or “indent” downward of its own weight when installed horizontally, and would be further deflected by the weight of rain, snow, or the force of wind. The booklet repeatedly stated the necessity for a domed installation in a horizontal position because of the flexible property of Plexiglas, and even a cursory reading of the booklet should have indicated this to plaintiff.

With regard to the liability of Rohm and Haas, the manufacturer of the Plexiglas, plaintiff cites the case of Rey v. Cuccia} as authority for the proposition that if the object of a sale was constructed or manufactured in such a way that if a deviation from the recommended installation procedure, as set forth in the manufacturer’s manual accompanying the object, would cause damage or make the object unfit for its intended use, such construction of the manufacturer would constitute a defect for which the manufacturer would be responsible, absent at least a warning of the danger involved.

We do not concur in plaintiff’s interpretation of Rey v. Cuccia as it might apply in this litigation. However, irrespective of the holding in that case, it is clear in the present case the manufacturer, Rohm and Haas Company, gave more than ample warning of the consequences of the installation of Plexiglas in a manner deviating from its instruction booklet. The booklet is so detailed we can only conclude plaintiff did not bother to read it before he began installation. Some portions of plaintiff’s testimony tend ho confirm this conclusion. Accordingly, we find no liability on the part of Rohm and Haas.

The other defendant, Flanagan, is in a different situation than Rohm and Haas. As vendor, the articles of the Civil Code on rehibitory defects place on the seller an implied warranty that the object sold is suitable for its intended use. Plaintiff contends he told Flanagan and Serpas his intention to use flat sheets of quarter inch Plexiglas in a horizontal installation to cover his swimming pool. As such material is not suitable for a horizontal covering over a pool, plaintiff contends defendant Flanagan violated the implied warranty of fitness.

Plaintiff relies primarily upon a photograph of a swimming pool enclosed by Plexiglas panels in the brochure given him. However, the installation shown him by Flanagan and Serpas bears no resemblance to the installation made by plaintiff. The installation in the booklet is made with a bubble configuration to the Plexiglas sheets, involves channel installation, and also involves a roof slope which appears to be close h> 45°. On the other hand, plaintiff’s installation was made without a domed configuration, was installed in a fixed manner without the use of channel installation, and had a very slight slope, estimated by plaintiff to be three inches per foot.

The record satisfies us that plaintiff did not inform Flanagan or Serpas of the precise installation he intended to make. On the contrary, it appears plaintiff merely stated he wished to enclose his pool with Plexiglas, and did not bother (probably through lack of knowledge of the properties of Plexiglas) to inform them of the framed support which he had already constructed for a glass installation. Our reading of the record convinces us that Flanagan and Serpas did not undertake to advise plaintiff as to the propriety or impropriety of the use of Plexiglas in his installation. They merely sold him the, Plexiglas sheets and furnished him well in advance of their use with the booklet mentioned above, which contained detailed and explicit statements regarding the properties of Plexiglas and the difficulties involved in a horizontal installation of that material. Flanagan and Serpas were not given sufficiently detailed information of the purpose for which, and the manner in which, the material was intended to be used to afford them the opportunity of warning defendant of difficulties he might encounter in such use.

Plaintiff cites authority for the proposition that in all sales there is an implied warranty that the object sold is fit for the purpose intended, which warranty can only be avoided by express and explicit waiver. But in our opinion Flanagan, the vendor of the building material in suit, complied with all duties imposed upon him in the sale of a construction material by furnishing the buyer and intended user of the material with sufficiently detailed instructions for its use as to place a reasonable man, particularly the present plaintiff who is a general contractor, on notice of the proper installation methods.

We cannot conclude a purchaser can rely on a single photograph from a single page of a detailed instruction manual to justify recission of the sale for failure of building material when a reading of the entire booklet would have placed him on notice of his improper use of the material. However, in the present case even if plaintiff had relied only on the photograph contained in the booklet of a pool enclosure, he should have readily seen the domed configuration of the Plexiglas sheets, the very steep roof incline, and the channel installation used in the photographed enclosure. The pool enclosure in the photograph bore no resemblance to plaintiff’s pool enclosure, and there is no evidence he conveyed this dissimilarity to Flanagan or Serpas. Hence, plaintiff cannot now say that defendant knew of his intended installation and that Plexiglas was not suitable for it. On the contrary, Flanagan and Serpas only knew that plaintiff intended to use Plexiglas for a pool enclosure. Consequently, there was no violation of the warranty of fitness for the purpose for which the material was sold.

We conclude the Plexiglas used by plaintiff displayed the properties and the qualities which it was stated to have, in the booklet, and the defective pool enclosure was the result of plaintiff’s failure to read the booklet and to effect installation of the Plexiglas in accordance with its express directions.

For the reasons assigned, the judgment appealed from is annulled and reversed and it is now ordered that there be judgment, on the main demand, in favor of the defendants-appellants, Charles Flanagan, d/b/a Cadillac Plastic Company and Rohm and Haas Company, and against plaintiff-appellee, Edmond P. Wolfe, dismissing the latter’s suit. Costs in both courts are to be paid by the plaintiff-appellee.

REVERSED AND RENDERED.

      . 298 So.2d 840 (S.Ct.1974).

      . See Articles 2520, et seq.

      . LSA-C.C. Arts. 2520, 2541, 2542; California Chemical Company v. Lovett, La.App., 240 So. 2d 633.


author: WATSON, Judge. DOMENGEAUX, Judge

text:
    Eddie MARTIN, etc., et al., Plalntiffs-Appellants, v. Mrs. Lucille RICHARD et al., Defendants-Appellees.
    No. 5463.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing denied June 30, 1976.
    Williams & Eames by Robert C. Williams, Baton Rouge, for plaintiffs-appellants.
    Voorhies & Labbe by Edwin C. Preis, Jr., Lafayette, Lewis & Lewis by John M. Shaw, Opelousas, for defendants-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Plaintiff, Eddie Martin, filed this suit, individually, and on behalf of his minor daughter, Mary Elizabeth Martin, to recover damages for personal injuries to the minor inflicted by defendant, Lucille Richard. An additional plaintiff is the minor’s mother, Mrs. Mary Delores Martin. Also made defendant was the City of Opelousas, the owner of North City Park, where the occurrence took place on Sunday, August 12, 1973. An additional defendant is Appalachian Insurance Company, an insurance corporation insuring the City of Ope-lousas against public liability. A third party demand was filed by Appalachian Insurance Company and Lucille Richard against Employers Commercial Union Insurance Company, the insurance carrier for the police department of the City of Opelousas. Another third party demand was filed by Employers Commercial Union against Appalachian. It was not determined whether Lucille Richard was employed by the City of Opelousas or by the police department. The trial court concluded that Lucille Richard struck and injured Mary Elizabeth Martin with a slapjack but that Lucille Richard was not acting in the course and scope of employment, either as a police officer or as an employee of the city recreation department, at the time. Judgment was given against Lucille Richard, individually, for $500.00, together with certain medical expenses. Judgment was rendered in favor of defendants, the City of Opelou-sas, Appalachian Insurance Company and Employers Commercial Union Insurance Company. Both third party demands were dismissed with prejudice. Employers Commercial Union Insurance Company and the City of Opelousas deposited $561.59 for payment of the judgment in the registry of the court. Plaintiffs have appealed.

Plaintiffs contend that the trial court erred: in holding that the battery did not affect Miss Martin’s menstrual cycle; in awarding only $500 in damages; and in finding that Lucille Richard was not acting in the course and scope of employment at the time of the battery.

Since the judgment has been paid by the City of Opelousas and the insurer for the police department of the City of Opelousas, Employers Commercial Union, the question of whether Mrs. Richard was in the course and scope of employment is immaterial unless the record indicates an abuse of discretion by the trial court in its award of damages.

The first question presented is whether or not the award of damages is so inadequate as to constitute an abuse of discretion.

The medical evidence consists of reports by Dr. D. J. deBlanc who first saw Mary Martin on January 19, 1974, and the deposition of Dr. D’Orsay D. Bryant, an obstetrician and gynecologist in Baton Rouge, Louisiana, who examined Miss Martin on June 11, 1974.

Miss Martin complained to Dr. Bryant on June 11, 1974, of secondary amenorrhea or cessation of her menstrual periods. She gave a history of regular menstruation commencing in June, 1972, ending after the episode in August, 1973. Dr. Bryant found no other physical problems and stated his opinion that there could be a causal relationship between the incident and the secondary amenorrhea. Dr. Bryant saw Miss Martin again on July 17, 1974, and September 4, 1974. Her condition had not changed at the time of his last examination. Dr. Bryant said that secondary ame-norrhea is a common problem in adolescent females and can result from emotional, organic or functional causes.

It was stipulated that Dr. deBlanc’s reports would be received in evidence in lieu of his testimony. Dr. deBlanc observed muscle spasms in the lower thoracic spine on his first examination, January 19, 1974. Bruises were still evident on February 11, 1974, and Miss Martin had definite muscle spasms. On March 25, 1974, there was tenderness in the same area.

Lucille Richard testified that the incident involved a fight between her granddaughter, Sandra Richard, and Mary Martin, in which she intervened.

Alfred Malveaux, Richard Jones and Donna Gay Charles witnessed the fight between the two girls and said Mrs. Richard struck Mary Martin with a blackjack.

Mary Martin testified that Sandra Richard instigated the fight and that Mrs. Lucille Richard struck her with a blackjack that August Sunday afternoon. Mary went to Dr. Bertrand the following morning. Mary was 13 at the time and was unable to play volleyball or basketball or run track when school started in September. She saw four doctors in all, Dr. Bertrand, Dr. Gaar, Dr. deBlanc and Dr. Bryant. Mary said she was in pain for two or three months after the accident. Her periods ceased for nearly a year and she had trouble with her back. At the time of trial in February, 1975, her periods had resumed on a regular basis.

Mary Delores Martin testified that her daughter went to Dr. Bertrand the Monday morning after the accident; her daughter’s periods ceased after the accident for a period of nine or ten months or longer. Mary complained of pain for five or six months after the accident and was unable to participate in school activities for two months after school started in September.

Sandra Richard testified that she lives with her grandmother, Lucille Richard, and was involved in an altercation at the park with Mary Martin. Sandra hit Mary, and Mary fell against a car. The fight continued approximately twenty minutes and it was stopped by Sandra’s grandmother, Lucille Richard, whom Sandra calls mother.

Although the reports of Dr. D. J. deBlanc and the deposition of Dr. D’Orsay D. Bryant might indicate a larger award for Mary’s injuries, Dr. deBlanc did not see her until January 19, 1974, five months after the injury, and Dr. Bryant first saw her on June 11, 1974, approximately 10 months post-injury. The record is void of any reports, depositions or testimony from the first two doctors who saw Mary Martin, Dr. Charles C. Bertrand and Dr. J. Frazer Gaar. The absence of any corroboration from these doctors creates some question about the causal connection between the incident and the physical symptoms exhibited later and may have influenced the trial court’s award of damages. The testimony of Mary Martin and her mother as to the connection was uncontra-dicted but was weighed and considered by the trial court. Evaluation of these witnesses’ credibility is properly within the province of the trier of fact. The amount awarded, while modest, is not so inadequate as to constitute an abuse of the trier of fact’s much discretion in assessing damages. LSA-C.C. art. 1934.

Since the record reveals no abuse of the trial court’s discretion in the award of damages, no purpose would be served by considering the question of whether Mrs. Lucille Richard was in the course and scope of her employment at the time of the battery.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiffs-appellants, Eddie Martin, individually, and as administrator of the estate of his minor daughter, Mary Elizabeth Martin, and Mrs. Mary Delores Martin.

AFFIRMED.

DOMENGEAUX, J., concurs in part and dissents in part and assigns written reasons.

DOMENGEAUX, Judge

(concurring in part and dissenting in part).

I am in agreement with my brothers of the majority in their affirmation of the District Judge’s findings on several of the issues. I feel that the trial judge correctly ruled that defendant committed a battery upon plaintiff’s 13 year old daughter, and I am of the opinion that his award of $500.-00 for bruises resulting therefrom was not an abuse of his discretion.

However, the majority affirms the trial judge’s specific finding that the minor’s affliction of secondary amenorrhea was not causally connected to the beating administered by the defendant. Thus the trial judge denied plaintiff any recovery for that injury. With this finding, I cannot agree.

The trial court considered the testimony of two of plaintiff’s treating physicians, Doctor D. J. DeBlanc whose reports were admitted by stipulation, and Dr. D’Orsay D. Bryant, an obstetrician and gynecologist whose deposition was likewise introduced by stipulation.

Doctor DeBlanc was of the opinion that the amenorrhea condition was attributed to the beating which the child received. He stated that:

“ . . . this child is menarche and the child was so shocked that this affects the nervous system which affects the menses. This child has not seen a period for six months. You must remember that a child beaten by a stranger is going to be affected mentally and emotionally as in this case, and if there is any question concerning this I will answer to anyone in authority what I have discovered through examination and history.
Concerning the area where the child was struck, that has been previously described, it is not that the patient has extreme pain at the site anymore, it is tender when pressure is applied over that area, but I feel more important than the tenderness and the pain is the effect of the mental trauma to this patient which is shown with the findings in relation to her menses.”
Doctor Bryant testified:
“Q. Could there be any connection in your findings of the absence of a menstrual cycle in this traumatic experience that she told you about; is there any connection between them?
A. Yes. There is a causal or could be a causal relationship.
Q. Would a beating about the head, shoulders, back and arms, would that cause the onset of secondary amenorrhea ?
A. It could. Yes, it could.
Q. I was about to say that a traumatic experience like a beating at the hands of an older woman ' could very well cause this type of condition.
A. Yes.
Q. Were there any findings that you found objectively or otherwise in examining Miss Martin that would lead you to any other conclusion than the one that you had just stated?
A. Not with her historical data, not as I have listed here.”

The above medical testimony was completely uncontradicted by the defendant. Also uncontradicted was the testimony of the child and her mother, supported by the medical evidence, that the minor’s menstrual cycle had been interrupted for a period of approximately one year commencing with the beating.

Doctor Bryant also testified that during the course of the amenorrhea, the medical possibility existed that Miss Martin had been rendered sterile by the beating. Thus, for approximately one year, she suffered from the mental anguish and the anxiety invoked by the possibility or probability of her sterility.

I feel that the above outlined medical evidence (uncontradicted) strongly preponderates in plaintiff’s favor, and I must conclude that the District Judge committed manifest error in his failure to find a causal connexity between the beating and the secondary amenorrhea condition. I wish to make it abundantly clear that I do not find an abuse of discretion in the trial judge’s award of $500 for the bruises which resulted from the beating. Rather, I would award additional damages for the secondary amenorrhea, an injury which the trial judge erroneously found to have no causal connexity to the beating. Therefore, I would vote to award plaintiff an additional $1,000 for mental anguish and anxiety caused by the secondary amenor-rhea condition. See Broussard v. St. Paul Fire and Marine Insurance Company, 198 So.2d 458 (La.App. 3rd Cir. 1967).

For the above and foregoing reasons I respectfully concur in part and dissent in part.

      . There is some question as to the disposition of the third party demands; however, under our resolution of the issues the possible procedural problems are moot.


author: MILLER, Judge.

text:
    Donald E. LESTER, Plaintiff-Appellant, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN et al., Defendants-Appellees.
    No. 5467.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Sept. 29, 1976.
    Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellant.
    Jack O. Brittain, Natchitoches, for defendants-appellees.
    Before MILLER, WATSON, and BERTRAND, JJ.
   MILLER, Judge.

Plaintiff Donald E. Lester seeks an increase in the $10,000 award for the death of his eighteen month old purebred Arabian horse. We affirm.

Defendant, Employers Mutual Liability Insurance Company of Wisconsin, conceded responsibility for the negligence of its insured, The Valley Electric Membership Co-operative, in leaving a live wire lying on the ground in plaintiff’s pasture.

DEL Sangre, the dead horse, was killed when he touched the live wire. He was bred at plaintiff’s stables, sired by Skorife out of DEL Koraff. Plaintiff was keeping him for show and further breeding.

Plaintiff sold DEL Raffia, the only full brother to DEL Sangre, when he was weaned. Plaintiff’s expert witness Dr. Huckabay bought DEL Raffia and testified he paid $1,000 for the foal. Plaintiff testified he received $2,500, but was not sure.

Plaintiff never showed or insured DEL Sangre. Each of plaintiff’s two experts saw DEL Sangre on two or three occasions and both were impressed with his potential. DEL Sangre was grey which led them to expect him to turn white at maturity, a most desirable color for Arabian horses. They thought DEL Sangre had the more desirable conformations of several champions in his pedigree.

Plaintiff himself is an expert judge of Arabian horses. His qualifications as an expert were the most impressive. He had judged many Arabian horse shows in several states and was about to receive the coveted “Big R” rating as a judge. Plaintiff’s other experts worked closely with him insofar as they were interested in Arabian horses.

Plaintiff owned the only full sister to the dead horse and was keeping the mare for future breeding. Both plaintiff and Dr. Huckabay admitted a high appraisal of DEL Sangre might increase the value of their Arabians — DEL Sangre’s only full brother and sister.

A sizeable portion of the $25,000 appraisal of DEL Sangre by plaintiff’s two experts was based on a belief that substantial stud fees would be earned over an extended period of time. While they were firm in their $25,000 appraisal for the eighteen month old horse, they admitted other appraisers might reach a substantially lesser figure. To their knowledge no eighteen month old unproved Arabian horse had commanded a price of more than $3,500.

Although plaintiff testified $35,000 was a fair appraisal of DEL Sangre when he was killed, he admitted he might have mentioned $25,000 when he was evaluating the extent of his loss. The Electric Company’s manager testified that when plaintiff telephoned to report the accident only minutes after the accident, he stated the company had killed a $10,000 horse. Plaintiff did not recall setting that figure, but testified he was upset at the time. Plaintiff did not deny he might have made that statement.

Plaintiff submits, as a matter of law, the trial court erred in refusing to accept the only expert testimony. Since defendants did not produce expert testimony, plaintiff contends the expert testimony by his witnesses stands unrebutted. Defendants point to the fact that there is nothing to indicate DEL Sangre was seen by an expert other than plaintiff and his two friends. Since DEL Sangre had not been shown to other experts, and no photographs are in evidence, opinions of other experts may not have been helpful. Plaintiff and his two qualified experts opined that DEL Sangre’s minimum value was $25,000 when he was electrocuted,

Plaintiff relies on several cases to support his contention that courts should not reject expert evidence and testimony from appraisers who are knowledgeable in the field under consideration, primarily Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Under Olds, uncontradicted testimony regarding underlying facts, not impugned by lack of credibility, may not be lightly disregarded.

However, expert opinion as to ultimate facts, even uncontradicted, is not binding on the court. Expert “opinions as to value are not binding on the trier of fact.” State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33, 39 (1972). We find a distinction between underlying facts and the ultimate facts at issue in a trial. The former are the basis upon which the trier of fact finds the latter.

The underlying facts in this case are the traits of DEL Sangre which contribute to his economic value. His bloodline, his col- or, his configuration, are traits which contribute to his ultimate value. The trial court expressly considered these facts in arriving at a decision.

The final dollar value is the ultimate fact at issue. Here the trial court is not bound by the conclusion of the experts, but may consider, as in fact it did consider, the opinions together with other relevant evidence.

In determining the ultimate fact— the dollar value of DEL Sangre, the trial court was impressed with plaintiff’s original report that the Electric Company had killed his $10,000 horse. He was also impressed by the price Dr. Huckabay paid for DEL Raffia, and mentioned that the dead horse was unproved. He may have been impressed that it was not established that any Arabian horse of eighteen months had brought more than $2,500, and that DEL Sangre had never been shown or insured. Some expert testimony indicated insurance is usually obtained on all horses with real potential.

Plaintiff has,failed to establish that the award disregarded the underlying facts developed by the expert testimony. The award is supported by a detailed assessment of the elements of value taken chiefly from plaintiff’s own testimony.

Plaintiff appellant has not established manifest error in the trial court’s factual determination and/or an abuse of the “much discretion” granted to trial courts by LSA-C.C. art. 1934(3). Our appellate review of quantum is limited to these two issues. Anderson v. Welding Testing Laboratory Inc., 304 So.2d 351 (La.1974); Ogaard v. Wiley, 325 So.2d 642, 651 (La.App. 3 Cir. 1975).

The trial court judgment is affirmed at appellant’s costs.

AFFIRMED.


author: STOULIG, Judge.

text:
    Max SIMON v. ADMINISTRATOR OF EMPLOYMENT SECURITY et al.
    No. 7518 (Consolidated with Nos. 7519 and 7520).
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Max Simon, in pro. per.
    Marion Weimer, James A. Piper and James A. McGraw, Baton Rouge, for defendant-appellee.
    Before STOULIG, SCHOTT and BEER, JJ.
   STOULIG, Judge.

This appeal demonstrates the pitfalls of self-representation.

Plaintiff filed three rules to show cause why he should not be entitled to additional unemployment compensation benefits for the years 1967, 1968 and/or 1969, which he alleged this court ordered in the case entitled Simon v. Administrator of Employment Security, 281 So.2d 165 (1973). The court did not rule as plaintiff apparently thinks we did, and therefore the judgments of the trial court dismissing said rules are affirmed.

In 1973 we affirmed a judgment dismissing claims for unemployment compensation benefits in connection with his employment with Zenith Hearing Aid Centers and Atlas Life Insurance Company. In addition this court dismissed his appeal from the judgment awarding him unemployment compensation benefits stemming from termination of his employment by Commonwealth Life & Accident Insurance Co. Having been successful against this employer in the trial court, there was nothing to be gained by an appeal.

Complying with this decision, the Division of Employment Security paid plaintiff maximum benefits of $45 per week for 28 weeks. Appellant cashed 27 of the benefit payments and lost one of them. At the time plaintiff’s claim was filed the maximum benefit payable under the statute (L. R.S. 23:1592-95) was $45 per week for a maximum period of 28 weeks. Obviously, having only one valid unemployment compensation claim, he was fully compensated.

No need exists to evaluate the benefit years that would have been applicable had plaintiff been successful in his claims against Atlas and Zenith because both were dismissed.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

      . A rule was filed in each of the three cases entitled Simon v. Administrator of Employment Security, bearing our docket Nos. 7518, 7519 and 7520 respectively. These cases were consolidated for trial and for appellate review.


text:
    Max SIMON v. ADMINISTRATOR OF EMPLOYMENT SECURITY.
    No. 7519 (Consolidated with Nos. 7518 and 7520).
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Max Simon, in pro. per.
    Marion Weimer, James A. Piper and James A. McGraw, Baton Rouge, for defendant-appellee.
    Before STOULIG, SCHOTT and BEER, JJ.
   STOULIG, Judge.

For the reasons assigned in the case of Simon v. Administrator of Employment Security et al., No. 7518 of the docket of this court, 333 So.2d 674, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Max SIMON v. ADMINISTRATOR OF EMPLOYMENT SECURITY.
    No. 7520 (Consolidated with Nos. 7518 and 7519).
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Max Simon, in pro. per.
    Marion Weimer, James A. Piper and James A. McGraw, Baton Rouge, for defendant-appellee.
    Before STOULIG, SCHOTT and BEER, JJ.
   STOULIG, Judge.

For the reasons assigned in the case of Simon v. Administrator of Employment Security et al., No. 7518 of the docket of this court, 333 So.2d 674, the judgment of the trial court is affirmed.

AFFIRMED.


author: MARVIN, Judge.

text:
    Clyde B. BUTLER, Plaintiff-Appellant, v. The BOARD OF TRUSTEES OF the ELECTRICAL WORKERS PENSION AND RELIEF FUND OF the CITY OF MONROE, Louisiana and the City of Monroe, Louisiana, Defendants-Appellees.
    No. 12902.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.
    Writ Refused Sept. 24, 1976.

      Mengis, Roberts, Durant & Carpenter, by Warren L. Mengis, Monroe, for plaintiff-appellant.
    Ralph J. Wicker, Asst. City Atty., Monroe, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ-
   MARVIN, Judge.

Plaintiff, a permanently disabled employee of the defendant city, sought to have the city ordered to cease deducting from monthly disability retirement benefits paid him under a pension and relief fund an amount equal to weekly workmen’s compensation benefits paid him by the workmen’s compensation insurer of the city for the disability. The lower court rejected the employee’s demands for this relief. We affirm on the authority of Patterson v. City of Baton Rouge, 309 So. 2d 306 (La.1975).

Plaintiff was injured February 4, 1974, and was eventually placed on disability retirement status effective September 1, 1974. His disability retirement benefits are being paid under the Electrical Workers Pension and Relief Fund of the City of Monroe. This fund was created by the Legislature under Act 283 of 1956, amended by Act 425 of 1960 and by Act 112 of 1967. Plaintiff began his employment with the city in 1966 and contributed five percent of his wages to the fund during his employment.

Plaintiff contends that the legislative acts mentioned do not provide for the integration of workmen’s compensation benefits received by the disabled employee into the formula for computing disability benefits under the fund. The 1956 Act provided in part:

“A member who has become permanently disabled . . . shall . . . receive a sum per month, equal to two-thirds (24) of the employee’s monthly salary averaged over a period of the best Five (5) years prior to date of disability, less any compensation paid, . .

The 1960 Act provided that a disabled member shall receive a sum per month

. . which when combined with Social Security benefits received by him, if any, equal to two-thirds of the employee’s monthly salary averaged over a period of the best five years prior to the date of disability, less any compensation paid and less any workmen’s compensation or Social Security benefits received,

The 1967 Act provided that a disabled member shall receive a sum per month

“. . . which, when combined with Social Security benefits received by him, if any, shall be equal to two-thirds of the employee’s monthly salary averaged over a period of the best five years prior to the date of disability less any [workmen’s] compensation [or Social Security benefits received], . . ,”

Plaintiff’s counsel deftly argues that the terms of the statutes such as “less any workmen’s compensation,” were not intended to allow the offset complained of but were intended to relate only to the averaging of the members’ salary. Plaintiff contends that variance in language and punctuation (the omission of the comma after the word “disability”) in the 1967 amendment strengthens his argument as to legislative intent under the prior enactments. We disagree.

Plaintiff alternatively contends that R.S. 23:1163 prohibits implementation of the statute even should it be interpreted contrary to plaintiff’s contentions.

In Patterson, supra, a Baton Rouge fireman saw his disability retirement offset by the amount he was then receiving as workmen’s compensation benefits from the city which was self-insured. The ordinance creating the disability retirement benefits provided for such offset. The court held that the offset did not cause its firemen to contribute to the city’s funding of its self-insured workmen’s compensation program.

“As already noted R.S. 23:1193 in our opinion has no effect upon a pension benefits formula of a public retirement plan. As earlier indicated the employee in receiving limited benefits because of the compensation offset is not helping to fund the City’s compensation obligation. He is simply receiving a predetermined smaller pension benefit from the retirement system.
“Furthermore, we are aware of no overriding public policy of this State which dictates the invalidation of the pertinent benefits formula of the Employees’ Retirement System.
“Interestingly, the Social Security law at 42 U.S.C. § 424a allows the reduction of a Social Security pension otherwise due, by amounts being received under state workmen’s compensation statutes (except where the state workmen’s compensation law provides for an offset for social security). Federal public policy apparently is not offended by reducing federal social security benefits by the amount of workmen’s compensation being received by the employee.
“There is indeed a temptation to hold the workmen’s compensation offset invalid on cursory examination, for it appears that the employee is helping to bear the compensation obligation of the City of Baton Rouge. In actuality this is not the case. If the 6(10) (b) type workmen’s compensation offset in public retirement systems is to be prohibited such directs itself to State Legislature rather than to this Court.”

Plaintiff here does not quarrel with the integration of social security benefits into the disability pension.

Plaintiff argues here that Patterson would have held the Baton Rouge plan without rational basis and therefore invalid, were it not for the finding there that the actuarial soundness of the plan depended upon the integration of workmen’s compensation benefits. Plaintiff then argues that there was no proof here that the actuarial soundness of the Monroe plan depended upon the integration of workmen’s compensation benefits.

In Patterson, the court did observe that it would be inclined to question the actuarial impact of integrating workmen’s compensation into the Baton Rouge disability retirement plan were it not for the testimony of the actuary for the retirement system. In Baton Rouge, however, the retirement system was created in 1953. Early in 1956, firemen were brought under the system. Late in 1956, the offset provision was adopted integrating workmen’s compensation benefits into the disability retirement plan. Here, the integration of workmen’s compensation benefits into the Monroe disability retirement plan occurred when the plan was initially adopted by legislative act.

An employee under such a disability plan could not be working full time at the same time he was drawing benefits under the workmen’s compensation law or the social security law. For this reason alone, we cannot accept plaintiff’s contention that the language in the acts relates to the averaging of the salary rather than to offsetting benefits.

Plaintiff makes no attack upon the constitutionality of any of the acts mentioned which created or amended the Monroe disability retirement plan. We are not to presume any act invalid. See Roberts v. City of Baton Rouge, 236 La. 521, 108 So. 2d 111 (1958).

In Patterson, the court noted that the public policy of the state did not dictate invalidation of the integration of workmen’s compensation benefits into the disability benefits formula of an employee retirement plan. See 309 So.2d 314.

At appellant’s cost, judgment is

Affirmed.

      . The language of the other Acts is reproduced only to illustrate plaintiff’s argument as to legislative intent in interpreting the prior acts.

      . R.S. 23:1163 reads as follows:
      “It shall be unlawful for any employer, or his agent or representative, to collect from any of his employees directly or indirectly either by way of deduction from the employee’s wages, salary, compensation, or otherwise, any amount whatever, or to demand, request, or accept any amount from any employee, either for the purpose of paying the premium in whole or in part on any liability or compensation insurance of any kind whatever on behalf of any employee or to reimburse such employer in whole or in part for any premium on any insurance against any liability whatever to any employee or for the purpose of the employer carrying any such insurance for the employers own account, or to demand or request of any employee to make any payment or contribution for any such purpose to any other person.
      “Nothing herein shall be construed to prevent any employer from carrying his own insurance towards his own employee; nothing herein shall apply to an employer qualified under the laws of this State to engage in the liability insurance business.
      “Whoever violates any provision of this Section shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both.”

      . Referred to in Patterson as “6(I0)b”, which was the section number of the ordinance providing for the offset.

      . 309 So.2d 306, 313-314 (La.1975).


author: HALL, Judge.

text:
    Henry WILSON, Plaintiff-Appellee, v. RELIABLE LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 12897.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.
    Clyde Lain, Jr., Monroe, for defendant-appellant.
    T. K. Giddens, Jr., William Robert McKenzie by T. K. Giddens, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff Henry Wilson, as beneficiary named in a funeral insurance policy issued to his mother, Mary Smith, by defendant Reliable Life Insurance Company, brought suit against defendant to recover the sum of $112.50 allegedly due under the terms of the policy, together with statutory penalties and attorney’s fees for defendant’s alleged arbitrary refusal to pay. Defendant answered denying liability under the policy because it was not given an opportunity to provide the funeral services stipulated in the policy. After trial, judgment was rendered in favor of plaintiff for $112.50, the optional cash benefit provided for in the policy, plus 12% penalty thereon and $500 attorney’s fees. Defendant perfected a suspensive appeal. Plaintiff answered the' appeal praying for an increase in the attorney’s fees because of the additional services required by the appeal. We amend the judgment of the district court to provide for additional attorney’s fees and, as so amended, affirm the judgment of the district court.

The 20 year term funeral service policy in question was originally issued by Colored Funeral Service Association to Mary Smith in 1943 and was reissued by the Association in 1963. In 1972, the policy was assigned to the defendant company, which assumed the obligations of the Association under the policy.

The policy provides that the Association agrees to provide a funeral service equal in retail value to the amount indicated in Schedule A, the amount of insurance shown in Schedule A being $150. The policy provides that the funeral benefit “ . . . shall consist of: Casket, preparation of body, burial garment, suit or dress, use of funeral parlor, cemetery equipment and the hearse service.” The policy contains the following optional settlement provision:

“OPTIONAL SETTLEMENT: Should the Insured’s death occur beyond a radius of fifty (50) miles of the authorized Funeral Director or in the event it becomes impossible or impractical to provide the Funeral Service the Association shall in lieu thereof pay a cash amount equal to seventy-five percent (75%) of the Funeral Benefit in effect at the date of death.”

Mary Smith died October 4, 1974 in Shreveport and the family arranged for funeral services to be provided by Winn-field Funeral Home. The insurance company was subsequently notified of the insured’s death and a claim was made for payment of the optional cash benefit of $112.50. The claim was rejected and this suit followed.

It was stipulated at trial that the premiums paid by Mary Smith from 1943 to 1974 totaled $735.08.

It was convincingly established at the trial by the testimony of plaintiff, his wife and his son, without any conflicting evidence by defendant, that agents of the insurer who collected premiums over the years repeatedly assured plaintiff and his mother the insured could be buried by any funeral home of their choice and the insurer would pay the cash amount provided in the policy.

It was established at the trial by the testimony of defendant’s general manager that the insurance company had an arrangement with Pioneer Funeral Home in Shreveport to provide funeral services in connection with the defendant’s policies. It was also established, however, that Pioneer Funeral Home is not a modern funeral home and lacks adequate facilities for providing suitable funeral services. Defendant’s general manager conceded these facts and further conceded that the services called for by the insurance contract could not be provided for $150 and the services could only be provided at a loss to the insurance company.

On appeal, defendant contends it has no liability under the policy because it was not given the opportunity to provide services through Pioneer Funeral Home and that under the terms of the policy the insurance company alone has the option of making a cash payment if it determines the furnishing of the services to be impractical or impossible. Defendant points out that LSA-R.S. 22:253 as it existed in 1963 when the policy was reissued did not require payment of the cash amount if the funeral services are not provided for any reason as is now required by the statute since its amendment in 1972. Defendant argues the decision of the district court awarding the cash benefit in this case gives retroactive effect to the 1972 amendment.

A consideration of the effect of the statute, either before or after its amendment, is not necessary to a decision of this case. Defendant’s contentions are not well taken for at least two reasons which do not involve application or interpretation of the statute.

First of all, it was established that the insurer’s agents repeatedly assured the plaintiff-beneficiary and the deceased-insured that the cash benefit would be paid regardless of which funeral home was used. Defendant is bound by the representations of its agents. The representations of the agents are not inconsistent with the terms of the policy, particularly in view of the established facts that the defendant-insurer was not in a position to offer suitable funeral services at the funeral home with which it had an arrangement, or at any funeral home for the amount of insurance stipulated in the policy.

Secondly, under the express terms of the policy the cash amount is payable by the insurer in the event it becomes impossible or impractical to provide the funeral services called for by the policy. The evidence establishes it was impractical for the defendant insurance company to provide the services in this instance. The funeral home selected by it was unsuitable. The amount of insurance could not possibly cover the cost of the services to be provided. It was to the economic advantage of the insurance company to make the cash payment rather than to provide the funeral services and the company surely would have made an election to pay the cash benefit had it been given the choice initially. It would have been impractical to provide the services and under the policy provisions the cash benefit is due the beneficiary.

In awarding $500 attorney’s fees the district court noted that the arbitrary refusal of defendant to pay the cash benefit necessitated the employment of counsel by plaintiff. The district court noted that the $500 awarded was not actually sufficient to properly compensate counsel for the services rendered at that time. Defendant’s appeal has necessitated the performance of additional services by plaintiff’s attorney. Additional attorney’s fees in the amount of $350 will be granted.

For the reasons assigned, the judgment of the district court is amended to increase the award for attorney’s fees from $500 to $850 and as amended is affirmed.

Amended, and as amended, affirmed.


author: STOULIG, Judge. SCHOTT, Judge

text:
    GENERAL AVIATION CORPORATION v. FIRST MANAGEMENT CORPORATION et al.
    No. 7494.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied June 30, 1976.

      Young & Mars, Theodore A. Mars, Jr., New Orleans, for plaintiff-appellee.
    Garon, Brener & McNeely, Trudy H. Oppenheim, New Orleans, for Hilbert S. Loeb, defendant-appellant.
    Before STOULIG, SCHOTT and BEER, JJ.
   STOULIG, Judge.

Plaintiff, General Aviation Corporation, obtained a $1,465.44 judgment against defendant Hilbert Loeb in a suit on open account for gasoline charged to H. S. Loeb on Exxon Credit Card No. 375 616 976. Defendant has appealed urging reversal on the ground that plaintiff failed to prove the gasoline was purchased by Loeb’s authorized agent.

Plaintiff submitted 18 service station charge tickets reflecting various purchases of gasoline for airplanes at the New Orleans Lakefront Airport on the account of H. S. Loeb. Each ticket is handwritten rather than imprinted with a credit card and is signed “H. S. Loeb per J. Riedl.” Because the tickets were not stamped with a credit card, Exxon refused to honor them once H. S. Loeb returned all the charge slips to the oil company with the notation these were unauthorized purchases. Hence this suit.

At the outset, we note it is overwhelmingly apparent from the record that Hilbert Loeb’s conduct in the course of this trial reflects his contempt for the judicial system and his determination to impede honest inquiry with hostility and evasiveness. The quality of Loeb’s testimony is summed up by this observaton of the trial judge:

“Let me say this in the record; counsel: If you can prove this case from your side we are probably spinning our wheels here because we are anticipating defenses.' You may need his testimony to prove your case and if so, God help you, but let me say for your benefit, and I want this clearly in the record. So far I haven’t believed one word Mr. Loeb has said; if it was true it was accidentally true and not true because he said it.”

Therefore, his denial that he authorized J. Riedl can be assigned very little weight in evaluating the evidence.

The record reflects the gasoline in question was used to fuel two airplanes, one owned by Welch and Loeb and a second leased by First Management Corporation.

First Management Corporation administered and kept books for several corporations and partnerships in which Hilbert Loeb or his wife Janet had a controlling interest. Defendant admitted he was president of this corporation, conceded it was not paid a fee for services rendered to the other business entities and reluctantly acknowledged J. Riedl was employed to pilot the planes in which the gasoline was pumped by plaintiff. He further admitted the flights were for business purposes of one of his various enterprises.

Under these circumstances, we conclude that Riedl was clothed with apparent authority to act on Loeb’s behalf, since he was in possession of and piloting aircraft either owned or leased by defendant. C.C. art. 3000 recognizes the right of third parties to contract with one having apparent authority to deal for his principal in providing :

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

In addition, Riedl furnished the correct charge name and credit card number of H. S. Loeb, and when we couple this fact with the circumstance of his piloting defendant’s plane, we can only conclude it was more than reasonable for plaintiff’s agent to draw the inference that Riedl was Loeb’s agent. This is not to say that Loeb would be estopped from disproving the relationship, but in view of the trial court’s observation as to his lack of credibility, we find the presumptive agency relationship has not been rebutted.

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

AFFIRMED.

SCHOTT, Judge

(dissenting).

In my opinion the judgment against defendant Loeb should be reversed because plaintiff failed to prove its case against him for purchases of aviation fuel by one J. Riedl.

Plaintiff’s original petition sought a joint and solidary judgment against Loeb together with First Management Corporation and Robert Welch in the amount of $2217.10. Plaintiff, at the outset of its case, called Loeb for cross examination and sought to establish that the affairs of the three defendants were so intermingled and intertwined that the liability of any would be the liability of all with respect to the purchases from plaintiff. Admissions by Loeb were sought to establish that Loeb was at all times personally involved in the use of the aircraft or in the employment of the pilots, or that the pilots were authorized tO' use his personal credit cards for the purchases. No such admissions were made, but Loeb’s testimony was so evasive, equivocal and vague that the trial judge was prompted to make the observation quoted in the majority opinion.

At this point plaintiff called Welch as a witness and he was able to shed some light on the relationship among the parties, the ownership of the aircraft, employment status of the pilots and the use by the pilots of credit cards which had been issued to the three entities. It developed that Welch was in the construction business and operated through two partnerships composed of himself and Mrs. Loeb. First Management Corporation performed administrative services such as bookkeeping for these operations. Welch had a pilot named Smith but J. Riedl never flew for Welch. Although not entirely clear, it seems that Riedl was employed by First Management and there seems no doubt that both Smith and Riedl were authorized to make purchases for First Management. There were two aircraft involved, one a Beech Baron under lease to Welch and Loeb, and the other a Mitsuibishi.

Plaintiff then produced the testimony of its office manager and bookkeeper, Eugene Caire, who identified three stacks of charge tickets for gasoline, one in the name of Robert B. Welch and Associates, a second in the name of First Management Corporation, and a third in the name of H. S. Loeb, totaling $546.94, $678.25 and $1465.44 respectively. He explained that on each card was the number of the airplane into which the fuel was placed, and that the Beech Baron with the number 1672W used 100 octane fuel while the Mit-suibishi having the number 200H. took jet fuel as well as kerosene. The tickets show that those charged to Welch invariably were for 100 octane fuel pumped into the Beech Baron. Most of those charged to First Management Corporation were for the Mitsuibishi, with two exceptions for the Beech Baron and one exception for an unidentified aircraft. All of the tickets charged to Loeb were for the Mitsuibishi with one isolated exception, this being an unidentified aircraft. This witness testified that it was a matter of routine that when the pilot came in his airplane would be fueled, and depending upon which airplane it was and what the pilot said the charge was made accordingly. The charges to Loeb personally were all signed by J. Riedl, and in response to the question as to why this was done, Caire said, “because he was the pilot of the aircraft over a period of time.” At this point the trial judge was prompted to make the following statement:

“I will conclude that a fellow who is entrusted with an airplane to fly for a company has inherent authority to purchase necessary gas for that company and to bind that company as an agent- and if he uses the name of a principal of that company I’m going to conclude, in the circumstances of this case that he had the authority to- do so. He was clothed with the authority to bind the corporation or the principals and I would infer from the circumstances that he had that authority and that the plaintiff relied on his apparent authority and extended credit to the principal this pilot chose to list on the particular purchase slip.”

Caire was asked who authorized his company to make charges to the different credit cards and he answered that he did not know, and that “it’s a matter of record somewhere.” At the conclusion of this witness’ testimony the three stacks of cards were offered in evidence over the objection of the defendant Loeb, and in response to an invitation from the judge, plaintiff’s attorney moved to amend his petition so as to convert it into a claim against the three entities for each individual amount as opposed to the lump sum originally claimed from all three.

When recalled as a witness by his attorney, Loeb testified that he never authorized Riedl to charge anything to him personally. He had originally said that some of the flights could have been made for him personally, but there was absolutely no connection made between that admission and the particular charges comprising the amount of plaintiff’s claim. When confronted with these tickets Loeb categorically denied having given Riedl authority to charge the purchases to his personal account.

The question before us is whether plaintiff established its case against Loeb personally for these purchases by Riedl. The evidence is uncontradicted that the plane for which the purchases were made was the Mitsuibishi which was owned and oper-tated by First Management Corporation and not by Loeb personally and apparently, Riedl was First Management’s employee, not Loeb’s. Plaintiff changed the entire theory of its case in midstream, having started out to show that these three entities were the same and that all of the charges were their joint responsibility and then attempting to isolate a batch of the charges as Loeb’s personal account. The only thing that connects Loeb with the account is the fact that a credit card number, supposedly Loeb’s, appears on these invoices. But the record is barren of any testimony to prove that this in fact was the number of Loeb’s card or that J. Riedl had authority to use Loeb’s personal number if in fact it was his.

The trial judge did not decide this case on the basis of the credit card number. His stated reason for the judgment was the fact that the man was buying fuel for an airplane whose owner should be responsible, but Loeb personally did not own the Mitsuibishi for which all of these purchases were made.

Finally, there is no explanation whatsoever in this record as to why J. Riedl was never called as a witness by plaintiff and why plaintiff did not produce its records which Caire said authorized Riedl to make charges to Loeb’s personal account. Plaintiff’s failure to produce Riedl and the records should operate as a presumption that this evidence would have been unfavorable to plaintiff’s case.

The burden was on the plaintiff to establish the purchases made by J. Riedl were made in his capacity as an agent for defendant Loeb as opposed to First Management Corporation. There is no evidence in the record to this effect. The judgment against Loeb can possibly be explained by the fact that he alienated the trial judge at the outset by failing to respond to the questions put to him truthfully and without equivocation, but Loeb’s lack of credibility does not relieve plaintiff of its burden to prove its case.

I would reverse the judgment of the trial court and respectfully dissent from the opinion of my colleagues.

      . Suit was filed against First Management Corporation and judgment was rendered in the sum of $678.25, from which no appeal was taken. Robert Welch was also named as a defendant but 1ns debt was discharged by a bankruptcy adjudication before this matter came to trial in the district court.


author: GULOTTA, Judge.

text:
    HOMEMAKERS LOAN AND CONSUMER DISCOUNT COMPANY v. Delores T. ARTHUR.
    No. 7491.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Clark & Odenwald, Maurice E. Clark, Jr., New Orleans, for plaintiff-appellant.
    Pierre Valcour Miller, New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   GULOTTA, Judge.

Defendant-in-rule, Homemakers Loan and Consumer Discount Company (Homemakers), appeals from a judgment dissolving a garnishment of mover-in-rule’s, Delores T. Arthur’s, wages, and awarding damages and attorney’s fees. The garnishment followed a May 26, 1970 judgment in favor of Homemakers, based on a default on a promissory note, which had been discharged in bankruptcy.

Defendant’s husband, Edward DeWitt Arthur, was discharged in bankruptcy on June 21, 1971. The judgment in favor of Homemakers was included in the husband’s discharge. On February 23, 1973, defendant also was discharged in bankruptcy and Homemakers’ judgment was included in this discharge. Thereafter, on November 15, 1973> the original judgment in Orleans Parish in favor of plaintiff, was made ex-ecutory in Jefferson Parish. On January 23, 1974, defendant’s employer, the Jefferson Parish School Board, was made garnishee.

The trial judge, in well-considered reasons for judgment, concluded that since the discharges in bankruptcy included plaintiff’s judgment against defendant, the garnishment was not properly issued. Accordingly, the trial judge dissolved the writ of garnishment, returned the sum of $1,-625.52 deducted and awarded plaintiff-in-rule $1,000.00 in damages and $500.00 in attorney’s fees. The trial judge further concluded that a subsequent reaffirmation of the debt did not afford the creditor the right to issue a garnishment based on the reaffirmed debt, because the creditor had not obtained a new judgment. We agree.

We reject Homemakers’ contention that following the discharge in bankruptcy, a garnishment may issue based on a reaffirmed debt, without the necessity of a new suit being filed. Homemakers’ theory that a bankruptcy discharge is only a bar to enforcement of the debt, and that a reaffirmation of the debt removes the bar to enforcement, is without merit.

Even if the reaffirmation and ac-knowledgement were sufficient to constitute a promise to pay the discharged debt, as claimed by Homemakers, prior to the issuance of a garnishment or prior to any attempt to execute for nonpayment of the debt, a creditor is compelled to obtain a new judgment based upon nonpayment of the reaffirmed debt. See Irwin, supra.

We find no merit in Homemakers’ further contention that since Delores Arthur, at the time the original loan was made, falsely represented her marital status as separated, she is estopped from claiming that community assets cannot be seized for the payment of a separate debt. Delores Arthur’s representation of her marital status is immaterial. Both mover-in-rule and her husband were discharged in bankruptcy. Under the circumstances, the wife’s earnings could not have been seized for either a separate or a community debt.

Homemakers’ contention that the trial judge erroneously awarded plaintiff-in-rule $1,625.52, representing wages withheld pursuant to the garnishment writ, and that the true amount of wages garnished by the Jefferson Parish School Board totalled $927.86 is without merit.

An internal auditor for the Jefferson Parish School Board testified that the sum of $1,625.52 represented the total amount of garnished wages withheld through October, 1974. This figure was corroborated by documentary evidence which indicated that the $1,625.52 amount was deducted from Delores Arthur’s check. Under the circumstances, we cannot say that the trial judge erred in concluding that plaintiff-in-rule was entitled to a refund in the sum of $1,625.52.

We reject also Homemakers’ contention that the $1,000.00 general damage award to Delores Arthur for the loss of use of the funds garnished by the school board, general inconvenience, embarrassment and humiliation was unwarranted. Arthur testified that because of the garnishment, she was unable to secure funds from the school board’s credit union. As a result, she was forced to borrow funds from a finance company which charged an interest rate higher than that of the school board’s credit union. Delores Arthur also stated that she could not meet her outstanding obligations to the Louisiana Credit Association because of the amounts garnished, resulting in a demand for payment by an attorney.

Awards for inconvenience, anxiety and embarrassment caused as a result of the wrongful issuance of a garnishment writ are compensable items of damages. See Piper v. Olinde’s Hardware & Supply Company, Inc., 276 So.2d 788 (La.App. 1st Cir. 1973), affirmed, 288 So.2d 626 (La. 1974). Under the circumstances, we cannot say the trial judge erred in awarding $1,000.00 in general damages. Nor do we find that the $500.00 award for attorney’s fees is excessive.

The judgment is affirmed.

AFFIRMED.

      . It is true that under our jurisprudence, it is welll settled that the obligation of a bankrupt to pay a debt from which he has been discharged is only a moral obligation, and that a discharge in bankruptcy serves as a bar to the legal enforcement of the discharged debt. See O’Neill v. D. H. Holmes Co., 232 So.2d 849 (La.App.4th Cir. 1970) and Irwin v. Hunnewell, 207 La. 422, 21 So.2d 485 (1945).

      . A Federal disclosure statement, introduced into evidence, indicated that plaintiff-in-rule paid an annual percentage rate of 27.53% to the finance company.

      . In Commercial Credit Plan, Incorporated v. Perry, 186 So.2d 900 (La.App.1st Cir. 1966), $300.00 attorney’s fees were awarded in connection with the dissolution of a writ of garnishment. See also LSA.-C.C.P. art. 3506.


text:
    Robert V. WHITTAKER v. VETSHER, INC., and Century National Bank of New Orleans.
    No. 7811.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Montgomery, Barnett, Brown & Read, Stanley McDermott, Jr., Richard B. Montgomery, Jr., New Orleans, for plaintiff-appellant.
    W. Monroe Stephenson, New Orleans, for Vetsher, Inc., defendant-appellee.
    Frans J. LaBranche, Jr., New Orleans, for Century National Bank of New Orleans, defendant-appellee.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   ON MOTION TO DISMISS

STOULIG, Judge.

Appellee Vetsher, Inc., moved to dismiss the suspensive appeal of appellant, Robert V. Whittaker, based upon the representation that the bond posted was insufficient to maintain a suspensive appeal under C. C.P. art. 2124.

As pointed out by this court in the case of Reid v. Blanke, 200 So.2d 132 (1967), the procedure for testing the sufficiency of an appeal bond is clearly set out in C.C.P. art. 5123. Further the Code of Civil Procedure in Article 5125 prohibits the dismissal of an appeal on the insufficiency of the security unless the party who furnished it is afforded an opportunity to furnish a new or supplemental bond. Finally, under C.C.P. art. 2088(5) the trial court retains jurisdiction and is a proper forum to consider objections to the sufficiency of an appeal bond.

For the foregoing reasons the motion to dismiss this appeal is denied at mover’s cost.

MOTION DISMISSED.