text:
    Succession of John Jacob ZINSEL.
    No. 9197.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Henry L. Klein, New Orleans, for plaintiff-appellant, Josephine Andracchio.
    D. A. McGovern, III, New Orleans, for plaintiffs-appellants, Joseph G. Zinsel, Individually and as Testamentary Executor, and Mrs. Dolores Clark Zinsel.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

In this contest, the trial court upheld the validity of a will bequeathing decedent’s estate to his wife and brother but further concluded that the decedent’s only son was a putative child and entitled as such to the legitime. We affirm.

In 1939, John Jacob Zinsel, Jr. married Dolores Clark (Lola) and remained married to her until his death. No children were born of that marriage. In the late 1950’s, however, Zinsel met Josephine Andraccio (Linda) and the two underwent a marriage ceremony in Cuernavaca, Mexico in August, 1959. The couple returned to New Orleans following this ceremony and lived as man and wife. In April, 1961, a son, John Jacob Zinsel, III, was born to them. In 1964, however, Linda, according to her testimony, first learned that Zinsel had never divorced Lola. Though Linda and Zinsel did not thereafter live as man and wife, Zinsel recognized John, III as his son, and supported and enjoyed a warn relationship with him.

The statutory will under attack was executed on July 25, 1975, while the decedent, John J. Zinsel, Jr. was hospitalized during his last illness. Named as legatees were the testator’s legal wife and brother. The will, by its terms, revoked a prior will executed by Zinsel on December 4, 1973, which had named his son as residuary legatee.

Zinsel died on August 7, 1975, and both wills were offered for probate. On behalf of her minor son, John Zinsel, III, Linda petitioner to annul the probate of the July 25, 1975 will on the grounds that the decedent was incompetent at the time the will was signed and that the testament was defective as to form. By amended and supplemental petition, she further alleged that a putative marriage had existed between her and the decedent and that the later will, if valid, should be modified so as not to deprive John, III of his forced portion as a putative child.

After trial, judgment was rendered dismissing the petition to annul the July 25, 1975 will, but further recognizing John, III as a putative child and entitled as such to the legitime, one third of decedent’s estate.

On appeal, Linda contends that the testator at the time of the execution of this will was suffering from terminal cancer and was under the influence of a pain-relieving drug which deprived him of testamentary capacity. She further argues that the decedent, due to his infirmity, lacked the muscular control to sign the will; that his purported signatures on the document are at best “marks”; and that the will is therefore null because it fails to mention the physical cause hindering the decedent from signing as required by LSA-R.S. 9:2442.

The decedent’s brother and legal wife, on the other hand, contend the trial judge erred in recognizing John, III as a putative child. According to the legatees, the mother of the child was not in good faith when she entered into the purported marriage with Zinsel because she knew or should have known of his existing marriage and failed to investigate his marital status prior to the ceremony.

VALIDITY OF THE WILL

It is well settled that testamentary capacity is presumed and a person attacking the will has the burden of proving lack of capacity at the time the will was executed. McCarty v. Trichel, 217 La. 444, 46 So.2d 621 (1950); Succession of Chopin, 214 So.2d 248 (La.App. 4th Cir. 1968). Similarly, proof of non-observance of formalities in the execution of a will must be exceptionally compelling to rebut the presumption of validity. Succession of Staggers, 254 So.2d 289 (La.App. 4th Cir. 1971), writ refused, 260 La. 11, 254 So.2d 617 (1971). Furthermore, testamentary capacity and the observance of formalities aire factual questions and the findings of the trial judge are not to be disturbed unless manifestly erroneous. Succession of Brown, 251 So.2d 465 (La.App. 1st Cir. 1971); Succession of Staggers, supra.

In his written report, the commissioner concluded the opponents of the will had failed to “bear” the burden of showing “lack of testamentary capacity and form”. The record supports these conclusions.

The notary and two witnesses, present at the signing of the will, testified the decedent had appeared completely lucid and competent. The notary stated that the will had been read aloud paragraph by paragraph; that the testator had answered affirmatively after each paragraph; and'that the testator understood what was being read. This testimony was corroborated by decedent’s brother who stated that on the day prior to the signing of the will decedent had expressed his displeasure with the earlier will and had indicated his desire to change it.

The decedent’s treating physician saw the testator approximately 25 or 30 minutes before the signing of the will on July 25 and stated Zinsel was sitting up in bed and was wide awake though he was in pain and irritated. According to this physician, Zin-sel at that time was in full possession of his mental faculties.

The doctor stated further that when he saw Zinsel on the day the will was made, Zinsel was talking on the phone to his attorney. (This is not the notary who prepared the 1975 will, but the attorney who prepared testator’s earlier 1973 will.) According to the doctor, two days before the day the will was signed, Zinsel had seemed weak but “lucid”. On hospital visits, Zinsel conversed with the doctor after July 25 until Zinsel died on August 6. The doctor indicated Zinsel had conversed less each day, but that he had understood the doctor’s inquiries and responded to questions.

Though an injection of Dilaudid, a pain-relieving drug, was administered pursuant to the physician’s order at 10:55 a. m., the doctor testified that it would have taken at least 15 minutes or longer for any appreciable effect to result. The doctor further stated that the drug does not induce sleep but because of the drug’s painkilling effect, sleep is permitted. The physician indicated Zinsel would not lose his mental capacity after the injection and in the event he did fall asleep he could be awakened and would be mentally competent to talk, discuss and understand.

It is true, as pointed out by opponents of the will, that a medical expert, after reviewing the hospital records, stated “the man was most probably not mentally competent to engage in detailed thinking”. It is true also that this expert doubted seriously that the testator would have been capable of understanding. We are aware also that the 15-year-old son of the decedent testified that on the day before the will was signed, his father had expressed a desire not to “go through with the will”. This witness further stated that three days before the signing of the 1975 will his father (testator) was in poor condition. We recognize further that decedent’s attorney (not the attorney who prepared the will) stated he had seen Zinsel at the hospital on the day following the signing of the will and he was unable to “communicate” with the decedent.

The trial judge, however, after hearing the evidence concluded, based on credibility, the opponents had failed to establish that the testator lacked testamentary capacity. We cannot say, under the circumstances, the judge erred.

With regard to the adequacy of decedent’s signatures on the testament, the commissioner concluded:

“The decedent was given the will to sign and did so after assistance and raising his body to a level allowing him to sign. The signature or writing was made by the decedent and reveals a lack of muscular coordination which he previously had. * * *
“ * * * In the instant matter, the writing of the decedent is more easily classified as a signature rather than a mark.”

The record supports this conclusion.

Notwithstanding the testimony of an examiner of questioned documents who stated that the writing on the July 25 will is illegible and cannot be compared to Zinsel’s standard signature, the notary testified that Zinsel had “laboriously” signed his name to the testament without assistance to his hand or arm although some “juxtapo-sitioning” had taken place in order to get him into a comfortable position so that he could write. He further stated that Zinsel had apologized for the quality of his signature and had stated that it was the best he could do in his condition. This testimony was substantially corroborated by the two witnesses to the testament. Copies of the will introduced into evidence are signed in a manner indicative of Zinsel’s signature rather than an abstract marking.

In Succession of Broussard, 210 So.2d 589 (La.App. 4th Cir. 1968), interpreting LSA-R.S. 9:2442 pertaining to the testator’s inability to sign his name because of a physical infirmity, this court stated:

“ * * * [T]he words thereof [LSA-R.S. 9:2442(A)(1)] convey the conviction that it was drawn to apply in situations in which the testator’s physical infirmity was of such a degree as to render him unable to sign his name in any fashion, so that he could only make his ‘mark’ on each page of the instrument and at the end thereof. Thus, where the testator maintains his ability to sign, and his signature is merely unsteady, the amendment has no application. * * * ” (emphasis supplied)

The evidence considered, we find no error in the commissioner’s finding that “the writing of the decedent is more easily classified as a signature rather than a mark” and that the will is not defective in form. Under the circumstances, we conclude, as did the trial judge, the July 25, 1975 Zinsel will is valid.

PUTATIVE CHILD

LSA-C.C. art. 117 provides:

Art. 117. Civil effects of putative marriage
“Art. 117. The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.”

LSA-C.C. art. 118 provides:

Art. 118. Persons entitled to civil effects of putative marriage
“Art. 118. If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children born of the marriage.”

It is undisputed that John Zinsel, Jr. acted in bad faith in entering into a second marriage without terminating his first. At issue is Linda’s good faith in marrying Zin-sel. If she acted in good faith, a putative marriage existed between her and Zinsel until 1964 and John Zinsel, III, born of that marriage in 1961, is a putative child, entitled as such to share in his father’s estate. LSA-C.C. art. 118; Succession of Verrett, 224 La. 461, 70 So.2d 89 (1953); Succession of Jene, 173 So.2d 857 (La.App. 4th Cir. 1965).

“Good faith” within the meaning of LSA-C.C. arts. 117 and 118 has been defined as “an honest and reasonable belief that the marriage is valid and that no legal impediment exists thereto”. Succession of Fields, 222 La. 310, 62 So.2d 495 (1952); Succession of Pigg, 228 La. 799, 84 So.2d 196 (1955). The existence of good faith is a factual question dependent upon the circumstances of each case. Succession of Chavis, 211 La. 313, 29 So.2d 860 (1947). Furthermore, this good faith is presumed to exist in favor of a party claiming to be a putative spouse who, free of her own impediment, enters into the marriage and the burden of proving the lack of good faith is upon the party attacking the marriage. Succession of Chavis, supra; Succession of Jene, supra.

Though no marriage certificate or other instrument was produced to document the ceremony, Linda testified that a marriage ceremony had taken place in Mexico on August 19, 1959. According to Linda, a justice of the peace and a witness officiated at the English-speaking ceremony. Her testimony was corroborated by her 15-year-old daughter (from a prior marriage) who was present at the ceremony. Further support that a marriage ceremony in fact took place is a document in evidence dated June 28, 1968, signed by Zinsel in which he agreed to pay support to John, III until his 18th birthday. This agreement contained the following clause:

“whereas, the parties hereto had entered into a purported contract of marriage, the legality of which has been ascertained to be null and void . . . ”

As pointed out by the commissioner, such wording establishes a “contract of marriage” was entered into between Linda and Zinsel.

Linda testified that on first meeting, Zin-sel used an alias. Shortly thereafter, upon confronting him with her knowledge of his use of the alias, Zinsel explained that he wanted to be desired for his personal qualities and not for his wealth. According to her testimony, at that time he told her that he had previously been married but was divorced. At Zinsel’s suggestion, Linda obtained a divorce on March 6, 1957 from her previous spouse. Acquaintances of Zin-sel and Linda testified a wedding celebration took place at the couple’s apartment. They apparently lived together as man and wife and shared the usual family life after the birth of their child until sometime in 1964. Letters and photographs, in evidence, demonstrate Zinsel’s affection for his son.

According to Linda, she did not meet or know of Zinsel’s'legal wife at any time prior to the wedding. She stated that it was not until early 1964 that she received a telegram and phone call and learned of the existence of the previous marriage. Though the couple did not thereafter live as man and wife, Zinsel remained in close contact with his son and continued to support him. Linda stated that she had not investigated Zinsel’s marital status prior to the Mexican ceremony because she had believed his statement that he had obtained a divorce and had no reason to require further proof.

Though Zinsel’s legal wife stated that she had personally confronted Linda in 1957 and again in June, 1959, and had informed her of the existence of the legal marriage, and though an adult daughter of the wife (Lola) from an earlier marriage testified she had told Linda that Zinsel was still married to Lola, the trial judge chose not to accept this testimony.

Again, we are faced with a credibility determination made by the trial judge supported by evidence in the record. The trial judge simply believed Linda was in good faith when the ceremony took place and continued in good faith at the time of and after the child’s birth in 1961.

We find no merit to the legatees’ reliance on language in Succession of Taylor, 39 La.Ann. 823, 2 So. 581 (1887); Prieto v. Succession of Prieto, 165 La. 710, 115 So. 911 (1928) and Succession of Hopkins, 114 So.2d 742 (La.App. 1st Cir. 1959) to the effect that the mere declaration by a husband that he has been divorced is insufficient to create a presumption of good faith on the part of a woman who marries him without further inquiry. In the cited cases, there exist factual circumstances significantly different from those in our case. In Taylor, the party claiming to be a putative spouse kiiew the wife and children of the previous marriage and was aware that a court had denied the wife a divorce. In Prieto, the party claiming putative status did not obtain a divorce. The Hopkins court concluded that decedent’s known relationship with other women, and knowledge by the party claiming putative status of the existence of a wife and child, were such that she should have investigated decedent’s marital status. Her failure to investigate, the court concluded, was fatal to her claim as a putative wife.

In the instant case, the trial judge apparently concluded, based on a credibility determination, that Linda was not under any obligation to investigate further Zinsel’s marital status after having been told by him that he had been divorced. We find no error. Indeed, upon first learning in 1964 of the possibility that Zinsel had not been divorced, she immediately demanded documentary proof from Zinsel and sought legal counsel to ascertain Zinsel’s marital status. Under the circumstances, we find no error in the trial court’s conclusion that John Zinsel, III is a putative child of John J. Zinsel, the decedent, and is entitled as such to a forced portion and/or legitime amounting to one third of decedent’s estate.

Accordingly, we affirm the trial court’s judgment. The matter is now remanded to the trial court for further proceedings consistent with the views expressed herein.

AFFIRMED AND REMANDED.

      . The matter was tried before a commissioner who rendered a written report. Judgment was rendered in accordance with his findings.

      . LSA-R.S. 9:2442(A)(1) provides:
      § 2442. Statutory will; form
      “A. Except as provided in Subsection B, the statutory will shall be in writing (whether typewritten, printed, mimeographed, or written in any other manner), and shall be executed in the presence of a notary and two competent witnesses not otherwise disqualified under Articles 1591 and 1592 of the Civil Code, shall be dated, and shall be made in the following manner:
      (1) In the presence of the notary and both witnesses the testator shall signify to them that the instrument is his will and shall sign his name at the end of the will and on each other separate sheet of the instrument. If the testator is not able to sign his name because of some physical infirmity, he must so declare or signify to the notary in the presence of the witnesses as well as declare and signify the cause that hinders him from signing, and shall then affix his mark in the places where his signature is required. Express mention of the testator’s declaration or signification and of the cause that hinders him from signing his name must be made in the act.”

      . The treating physician testified he saw the testator at 10:55 a. m. The notary stated the will was signed at approximately 11:10 or 11:15 a. m. on that same morning.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    INGRAM CONTRACTORS, INC. v. H. L. ROWLEY.
    No. 9202.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Monroe & Lemann, Benjamin R. Slater, Jr., William J. Hamlin and Benjamin R. Slater, III, New Orleans, for plaintiff-appellant.
    Richard S. McBride, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   LEMMON, Judge.

Plaintiff has appealed from a judgment dismissing its suit on a promissory note on an exception to the jurisdiction over the person.

Prior to 1968 H. L. Rowley, maker of the note, was a resident of Louisiana and was president of H.' L. Rowley, Inc. (HLR, Inc.), a Louisiana corporation whose entire stock was owned by Rowley, his wife and their child. In August, 1967 HLR, Inc. employed plaintiff, also a Louisiana corporation, to perform dredging services on land in Louisiana leased to HLR, Inc. An invoice for these services was rendered the following month.

HLR, Inc. ultimately went out of business, and in April, 1968 Rowley moved to Mississippi. Because of his personal friendship with the officers of plaintiff corporation, Rowley thereafter agreed to furnish a promissory note making himself personally liable for the corporate debt, and further agreed to pay the interest periodically and to pay the principal as soon as he was financially able to do so. He executed the note in January, 1969, at which time he was still a resident of Mississippi, and mailed the note from Mississippi to plaintiff in Louisiana. He made three interest payments thereafter, the last on January 21, 1971, but was unable to make any further payments. ■

In the fall of 1970 Rowley moved back to New Orleans “temporarily”, then returned to Mississippi until 1975, when he moved to Ohio. This suit was filed in February, 1975, and service by certified mail was obtained in Ohio pursuant to R.S. 13:3201 et seq., the long-arm statute.

R.S. 13:3201 et seq. was designed to allow Louisiana courts the broadest basis for exercising personal jurisdiction over nonresidents which is constitutionally permissible. Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La.1977). The applicable standard is that the nonresident must have certain minimum contacts so that a suit against the nonresident does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

R.S. 13:3201 et seq. authorizes a Louisiana court to exercise personal jurisdiction over a nonresident only as to a cause of action arising from the nonresident’s activity or conduct in this state. The cause of action herein sued upon involves Rowley’s execution of a promissory note purporting to make him liable for an already incurred debt of a third party. At the time of execution (which is the first time any cause of action against Rowley accrued) Rowley was a nonresident, and the transaction giving rise to the cause of action (the execution of the note) occurred in Mississippi.

We hold that the conduct or activity by the nonresident which gave rise to a cause of action against him individually simply does not bear a sufficient relationship with this state for our courts to exercise jurisdiction over the nonresident.

The judgment is affirmed.

AFFIRMED.

      . Arguably a state has jurisdiction over the nonresident maker of a note when the note specifies performance in that state. However, the note in this case did not specify a place for payment, in which case presentment (demand for payment) is to be made at the place of business or residence of the maker. R.S. 10:3-504(2)(c). See, however, Moore v. Evans, 196 So.2d 839 (La.App. 3rd Cir. 1967).


author: SCHOTT, Judge. GARSAUD, Judge,

text:
    Allen J. ST. PIERRE v. GENERAL AMERICAN TRANSPORTATION CORPORATION et al.
    No. 9204.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      The Law Offices of Daniel E. Becnel, Jr., Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.
    Taylor, Porter, Brooks & Phillips, John I. Moore and A. Michael Dufilho, Baton Rouge, for defendants-appellees.
    Before SCHOTT, BEER and GARSAUD, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit against six “executive officers” pursuant to a jury verdict. Plaintiff was injured at the Shell Oil Company plant in Norco, Louisiana, where he was employed as a welder.

On the morning of the accident plaintiff’s supervisor sent him to the alkylation department with instructions for him to weld a ladder onto a tank containing sulfuric acid. He met two pipefitters at the alkylation department who had also been delegated as a part of the crew to perform the task. Mounted on the outside of this tank was a glass gauge column to enable one to visualize the amount of acid in the tank. This glass gauge was difficult to read from ground level and the practice had been to climb on a portable aluminum ladder leaned against the tank so that the gauge could be read more easily and accurately. The purpose of the permanent ladder being installed on the side of the tank by plaintiff and his co-workers was to eliminate the use of the portable ladder when the gauge was read.

Before beginning his work, in accordance with the safety policy of the company with respect to any job where a potential fire hazard existed, plaintiff secured a safety permit to perform his work. This permit was approved by a safety inspector, Mr. Ramirez, who was deceased at the time of the trial, and Mr. Tastet, the foreman of the alkylation department.

In the performance of their task plaintiff’s crew utilized a portable or movable scaffold on which plaintiff climbed with his welding equipment and welded two lugs or brackets to hold the top of the ladder and welded the ladder to the brackets as the first step in the procedure. Next, plaintiff welded the two lugs for the bottom of the ladder and the ladder thereon. This left the middle of the ladder to be welded on two of the lugs which were likewise to be installed on the tank.

The ladder was situated about a foot or 18 inches from the glass gauge with the gauge to the left of the ladder. The ladder was enclosed with a cage, and in order for plaintiff to complete the welding of the middle lugs he climbed onto the ladder and proceeded to work from inside of the cage in close proximity to the gauge.

One of plaintiff’s tools was a chipping hammer and after he completed the weld on the right side he proceeded with his welding on the left side, placing his chipping hammer on the bracket which supported the glass gauge. He performed the welding, the chipping and the brushing from the left side of the ladder and cage without incident, and after completing the task he dropped his leads and prepared to descend from the ladder. In the process of pulling his left arm into the cage, however, his chipping hammer which he was holding with his left hand struck the glass gauge, breaking it and causing the pure sulfuric acid to fall on him with the result that he was seriously burned by the acid.

When plaintiff and the two pipefitters had begun their work on the scaffold it became apparent to them that the presence of the acid in the glass gauge constituted a safety hazard. As a result, they spoke to Tastet, the foreman, and Mr. Hammersly, the supervisor of the alkylation department, about draining the gauge, whereupon they delegated an auxiliary operator in the alky-lation department, Sheldon Vice, to drain the gauge. Vice had never performed this operation before but upon getting an explanation from Tastet and Hammersly he went to the tank and simply by turning one valve to block the flow of the acid from the tank into the gauge and another valve at the bottom of the gauge he assumed that the gauge had been drained, and so informed plaintiff and his co-workers. It was apparent to plaintiff that the level of the acid in the gauge had dropped and everyone was under the impression that there was no more acid in the gauge when plaintiff and his co-workers returned to their task.

Plaintiff brought his suit against seven of the executive officers (later dismissing the suit as against one of them) who included the chief engineer of the plant, the manager of safety, the refinery manager, the manager of the alkylation department, the manager of the engineering field and the plant superintendent. Neither Tastet, Hammersly nor Vice were included among the defendants.

The case was submitted to the jury on special interrogatories, beginning with the questions as to whether plaintiff was con-tributorily negligent or not. These two questions were followed by the instruction that if the first two questions were affirmative as to plaintiff’s contributory negligence the jury’s work would be finished. On the other hand, if contributory negligence was negated there were some twelve questions as to the negligence and proximate cause thereof as to the six defendants. The jury found plaintiff contributorily negligent and their verdict of dismissal of his suit automatically followed.

In this court, plaintiff has assigned three errors. First, he contends that the interrogatories were unfair in that they reversed the order which the jury should have followed in arriving at a decision. That is, plaintiff contends that the negligence of the defendants should have been the subject of the first interrogatories and .the contributory negligence of plaintiff following. The second error, assigned by plaintiff, concerns two instances in which the trial judge sent written messages to the jury after they had begun their deliberations in response to questions which the jury had sent in to the court. The third assignment of error is on the facts of the case with plaintiff contending that the jury erred in finding him to have been negligent or contributorily negligent. In connection with this assignment plaintiff contends it is necessary for us to remand the case for a new trial since the question of defendant’s negligence was never reached.

Beginning with the first assignment, we are not convinced that plaintiff was prejudiced because of the order in which the interrogatories were addressed. Whether the questions about the defendant’s negligence had been placed first or not the fact remains that the questions with respect to plaintiff’s negligence were clear and unequivocal and the jury found as a fact that he was contributorily negligent. It is sheer speculation on the psychology of the jurors to say, as plaintiff urges, that they simply took an easy way out by answering the first questions affirmatively. In any event, we do not believe plaintiff has the right as a matter of law to raise this question at the appellate level in view of his failure to object to the order of the interrogatories before the jury retired.

In connection with charges to the jury, unless an objection is made to proposed charges before the jury retires the objection is waived. LSA-C.C.P. Art. 1793. In connection with special verdicts, Art. 1811 provides that the questions must be submitted to the parties and if an issue of fact is omitted the parties waive their objection unless they raise the issue before the jury retires. The rationale of these rules is obvious. Parties may not sit back and make no objection to charges or to the omission of relevant factual issues in the case where special interrogatories are addressed to the jury and then, for the first time after an unfavorable verdict is reached, make objections. Similarly, if plaintiff felt that he was prejudiced by the order in which the interrogatories concerning negligence and contributory negligence was established he should have objected before the jury retired, and his failure to do so constitutes a waiver. ,

The same disposition must be made of plaintiff’s second assignment of error. The record shows that the jury did send to the court two requests for clarification of facts and in both instances all counsel were present, including plaintiff’s, and without any objection and in fact with participation by all counsel, the judge sent the messages now complained of to. the jury. We have concluded that plaintiff also waived this objection.

In connection with plaintiff’s third assignment of error, we have reviewed the entire record, not only with respect to the factual question of plaintiff’s own negligence but also that of negligence on the part of the defendants. As we indicated earlier in this opinion plaintiff and his two co-workers were aware of the hazard of the acid being in the glass gauge in proximity to their work before they began, and this awareness led them to seek to have the glass gauge drained. Hammersly and Tastet apparently agreed that there was some hazard involved and they dispatched Vice to empty the gauge. There is evidence to show that Vice had never done this particular thing before but it was a rather simple operation. In any event, Vice may have been careless in the performance of the task because some of the acid remained in the gauge. However, assuming that leaving some acid in the gauge was negligence on the part of Vice, the evidence clearly convicts plaintiff of the ultimate act of negligence in breaking the glass with his chipping hammer. The following testimony was elicited from the plaintiff concerning his own conduct in connection with the incident:

“Q. Did you have any appreciation that there was acid in that glass as you were making those welds?
A. I had appreciation of knowing that the gauge column was only a foot from any welds on that left side from the first clip on the top to the bottom clip. I had precautions that were taken in the event there wasn’t any acid, or if there was acid, and I welded each lug in a safe manner and as I was coming in to bring both of my hands before I descended the ladder, that is when there was a very low key break noise and the next thing I remember acid flowing on me. . . . ”

Thus, whether plaintiff thought there was acid in the gauge or not he surely was under a duty to avoid breaking the gauge. He had placed his hammer on the bracket holding the gauge and, according to his testimony, while he was bring his left arm and hand into the steel cage and holding onto the hammer he accidently struck the gauge with the hammer. Ultimately, this accident happened because of his own carelessness, and for that reason we cannot say that the jury erred in finding him contribu-torily negligent.

Finally, in our review of this entire record, we do not find any evidence to support plaintiff’s charge of negligence on the part of the six defendants he sued. Defendants placed into evidence the chain of command at the refinery, at the top of which was the manager and a defendant, J. D. Ramsey. He testified that this plant covers 850 acres and has over 800 employees on the job. The type of job which plaintiff was performing on this day was such that there were 30 to 40 jobs of the same magnitude performed at the plant every day. The safety manager and a defendant, H. M. Miller, Jr., had eight assistants under him, including Ramirez who signed the permit. Miller himself was not aware of the particular job which plaintiff was doing or was about to do on this date and we infer from the evidence that was a responsible subordinate to whom the job of issuing the permit was delegated by Miller. The manager of the alkylation department, and also a defendant, T. M. Dorsey, had no direct knowledge of the job which plaintiff had been delegated to perform and we infer from the evidence that the duty of supervising this particular task in the alkylation department had been delegated to two responsible subordinates, Tastet and Hammersly. Whether they were negligent or not they were not made defendants, and of course the same applies to Vice.

Applying the principles set forth in Canter v. Koehring, 283 So.2d 716 (La.1973) and Downey v. Callery, 338 So.2d 937 (La.App. 4th Cir. 1976), writ refused, La., 340 So.2d 1390, we have concluded that as a matter of law the facts shown by plaintiff do not convict the particular defendants against whom this suit was brought of negligence.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

GARSAUD, J., concurs with written reasons.

GARSAUD, Judge,

concurring.

I agree with the majority’s decision that there is no evidence in the record to support plaintiffs charge of negligence on the part of the six defendants sued. Accordingly, I concur in the affirmance of the trial court’s decision.

However, I am very troubled by the plaintiff’s Assignment of Error No. 1, dealing with the special interrogatories to the jury on the plaintiff’s contributory negligence, and by the handling of this issue by the trial court and this Court. It appears to me that to reverse the order of interrogatories is totally inconsistent with the conceptual framework of the defense of contributory negligence, and is inherently prejudicial to plaintiff’s claim. Although judges and lawyers might be able to appreciate the fine distinctions which would support such a reversal of the special interrogatories, I do not believe a jury possesses the same appreciation. Both substantively and procedurally, the jury is presented just with an overall establishment of negligence, then with a rebuttal on the basis of contributory negligence. To short-circuit the established process for concluding plaintiff’s contributory negligence, in my opinion, is fatal. Under Article 2164 of the Code of Civil Procedure, I would reverse on this issue had the proper defendants been sued, in spite of the fact that plaintiff failed to raise a timely objection. The interrogatories are so essentially foreign to the traditional analysis of negligence on the part of the defendant and the response of the contributory negligence of the plaintiff, that I believe justice would require a reversal.

      . Plaintiff’s present counsel did not try this case.


author: REDMANN, Judge.

text:
    John David ATCHISON v. ARCHER-DANIELS-MIDLAND COMPANY.
    No. 9231.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.
    Joseph P. Henican, III, Henican, James & Cleveland, New Orleans, for defendant-ap-pellee.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   REDMANN, Judge.

Defendant employer designed and constructed grain bins and their feeder system (screws, drive, shaft and pneumatic lines) which defendant employed at its grain facility. Plaintiff, an employee of defendant, lost his leg at an accident while at work at that facility.

Plaintiff alleged that improper design and construction by defendant caused his loss. He seeks to hold defendant liable under a theory of “products liability” and he argues that the exclusivity of workmen’s compensation, La.R.S. 23:1032, excludes only ordinary tort liability and not products liability. We reject this argument and affirm the dismissal of his action against his employer.

“Products liability” is but a catchword, a descriptive categorization, like “slip and fall” or “medical malpractice”. The liability that arises in any of these categories is the result of fault causing damage; La.C.C. 2315. Accordingly, we see no reason to justify escape for products liability from R.S. 23:1032’s peremptory denial “of all other rights and remedies” against the employer. A stranger is liable for injury caused by his defective product, just as he is liable for injury caused by dropping a hammer. It is no more unfair, and no more fair, in one instance of asserted liability than in the other, to trade that liability for workmen’s compensation liability when the alleged tortfeasor is the employer of the injured person.

The wording of R.S. 23:1032 is unmistakable. No constitutional infirmity is suggested as arising in the case of products liability. There is no cause of action in “products liability” against one’s employer for injury for which the employer owes workmen’s compensation.

Affirmed.

      . Accord, Winkler v. Hyster Co., 1977, 54 Ill.App.3d 282, 12 Ill.Dec. 109, 369 N.E.2d 606.


author: SCHOTT, Judge.

text:
    Mr. Claude P. MOUTON and Mrs. Mourivert Mouton v. GODCHAUX’S INC., and Seligman & Latz of New Orleans, Inc.
    No. 9243.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Hammett, Leake, Hammett, Hulse & Nelson, W. Paul Anderson, New Orleans, for defendants-appellants.
    Livingston, Powers & Nass, J. Wensles Parra, Jr., New Orleans, for plaintiffs-ap-pellees.
    Before SCHOTT, BEER and GARSAUD, JJ.
   SCHOTT, Judge.

Defendants have appealed from a judgment based on a jury verdict in favor of Mrs. Mourivert Mouton for damages to her hair after getting a permanent wave at the beauty parlor operated by defendants.

Mrs. Mouton received her permanent wave on Friday, November 29,1974, and on the following Sunday noticed that her hair was coming out. This continued and on the following Thursday she saw a dermatologist. He described the amount of hair lost as a massive amount which indicated a “tremendous insult” to her hair and said that this was the most extensive case of a loss of hair he had seen from a permanent wave. However, he found that the hair had broken and he did not expect any permanent damage to her hair.

Mrs. Mouton testified that her hair grew back but never regained its thickness. She testified that her social life during the following Christmas holidays and the Carnival season were limited because of her condition, and she was forced to wear wigs until the following May. In her place of employment at a hospital it was warm with the result that she suffered from itching and discomfort from the wigs. Furthermore, she suffered embarrassment in being called Kojak by children and being offered a lollipop by a neighbor as an indirect reference to the same fictitious television character known for his bald head.

The jury awarded Mrs. Mouton $6500 in damages, and on appeal the parties have stipulated the issues to be whether res ipsa loquitur applies and if so, is the quantum excessive.

The trial judge did instruct the jury on the doctrine of res ipsa loquitur. Defendants contend that plaintiff had the burden of proving negligence on the part of defendants and that the doctrine was unavailable under the circumstances of the case. They take the position that all of the evidence showed that defendants performed their work properly, and in the absence of some showing of negligence on their part plaintiff was not entitled to recover as a matter of law.

Defendants’ contention is not supported by the jurisprudence. In Sheppard v. Travelers Insurance Company, 333 So.2d 342 (La.App. 3rd Cir. 1976), Horton v. Seligman and Latz, Inc., 260 So.2d 731 (La.App. 4th Cir. 1972), writ refused, 262 La. 191, 262 So.2d 788, and Martin v. Lehmann, 147 So.2d 243 (La.App. 4th Cir. 1962), the doctrine of res ipsa loquitur was applied in the same type of cases. In Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972), the court reiterated the principle that the doctrine of res ipsa loqui-tur applies in a situation where the circumstances are of such an unusual nature as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury.

Under the facts of this case where this lady had had many permanent waves in her lifetime without incident, had suffered a loss of her hair on the second day after this permanent wave was administered and had the benefit of an expert dermatologist who attributed the loss of her hair to the permanent wave, there was surely an inference of negligence on the part of the defendants and the burden was properly shifted to them to exculpate themselves by explaining to the satisfaction of the jury that this situation occurred without any negligence on their part.

As to quantum of general damages, we turn to Coco v. Winston Industries, 341 So.2d 332 (La.1977) for guidance. In that case the court reiterated its previous pronouncement in Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974), in which the court had said that the appellate court might consider awards in similar cases to serve as an aid to determine whether the trial court abused its discretion in the case under review. In Coco the court emphasized that a court of appeal may never disturb an award unless the record clearly reveals an abuse of discretion, and once the finding is made that there was an abuse of discretion in a case where the award was excessive it can be lowered only to the highest point within the discretion afforded the court.

Following these guidelines we have compared the $6500 award given Mrs. Mouton with the $1,000 award given in the Sheppard ease and the $1500 award given in the Horton case. In the former case plaintiff suffered hair breakage in the frontal portion of the scalp and her condition necessitated the wearing of a wig for approximately one year, in the Horton case an attorney at law who suffered hair breakage over her entire scalp necessitating hair treatments weekly and wearing of hair pieces for approximately five months was awarded only $1500. In the Sheppard case a number of other cases are cited and discussed and the maximum award was for $2500 to the plaintiff in Katz v. Employers Group of Insurance Companies, 204 So.2d 695 (La.App. 4th Cir. 1967) where she had a burned and irritated scalp and lost all of her hair on an area several inches in diameter. Considering the guidelines set forth by the Supreme Court in the Coco case, we have concluded that the award of $6500 does constitute an abuse of discretion and reduce the award to $3,000 which we consider to be the highest amount which could have been awarded within a proper exercise of that discretion.

The judgment appealed from is affirmed but is amended, and there is judgment in favor of plaintiff, Mrs. Mourivert Mouton and against defendants, Leon Godchaux’s Clothing Company, Inc. and Seligman & Latz of New Orleans, Inc., jointly and in solido in the sum of $3,000 with legal interest from date of judicial demand until paid, and for all costs of these proceedings.

AFFIRMED AND AMENDED.


author: STOULIG, Judge.

text:
    Branch M. JORDAN v. BACHE & CO. INCORPORATED. In the Matter of the arbitration between BACHE & CO. INCORPORATED and Branch M. JORDAN.
    Nos. 9245, 9246.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.
    Maumus F. Claverie, Jr., New Orleans, for Branch M. Jordan, appellant.
    Stone, Pigman, Walther, Wittmann & Hutchinson, Walter B. Stuart, IV, New Orleans, for Bache & Co. Inc., appellee.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   STOULIG, Judge.

By appeals in these consolidated cases, Branch M. Jordan seeks to discharge as invalid a $13,766 debt to his stockbroker, Bache & Co. Incorporated (Bache), incurred in trading in the commodities market. He contends that this is a gambling debt that is unenforceable under La.Const.1921 Art. 19, § 8.

In May and June 1973 appellant instructed his broker John Roy of Bache to buy soybean futures. He ordered the May contracts sold the same day he purchased them and held the June contracts for only two days. As the market fluctuated downward, Jordan lost $16,778 and subsequently refused to honor the debt. Although it is customary to require a payment toward the purchase of any stock bought on margin, Jordan deposited no funds for these purchases with his broker.

Bache employees testified that insofar as the purchases were made, the usual procedure was followed in this case. It was explained that first the customer (Jordan) places an order with his broker, who then has it relayed by teletype to the floor of the stock exchange, where a clerk brings it to the broker’s representative or affiliate. He in turn makes the purchase and the exchange clerk advises the broker that initiated the order of the completion of the transaction.

The record reflects that many who buy and well in the commodities market never intend to take delivery of the commodity but if the holder of a futures contract does not sell his contract, he will ultimately receive delivery of the farm product represented by warehouse certificates.

Under these circumstances this is not a gambling contract within the prohibition of La.Const.1921 Art. 19, § 8. This question was settled by the court in Stewart Bros. v. Beeson, 177 La. 543, 148 So. 703 (1933). There the court pointed out that the illegal intent to gamble must be mutual and the intent of one party not communicated to or concurred in by the other will not nullify the agreement.

Appellant would have us infer that Bache’s failure to collect the advance due on the margin purchase demonstrated its intent to gamble on a rising market with Jordan. While we recognize that this oversight is contrary to federal law regulating margin buying, we will not treat it as a tacit commitment by Bache to enter into a joint venture to gamble with Jordan. There is no evidence to support this premise.

Nor do we attach any significance to Jordan’s declared lack of intent to accept delivery of soybean oil and the broker’s awareness of this fact. The Stewart court, in holding that trading in commodities was not a gambling contract but an agreement of exchange, stated:

“In support of defendant’s contention that these contracts were intended as mere wagers or to speculate in the rise or fall of prices, which under all the authorities strikes the transaction with nullity, he cites the fact that while there were in all 88 of such trades, yet all of them, except the last one, were closed out without actual delivery being made. The fact that these contracts were closed out without actual delivery may be a circumstance in support of the contention, but it is by no means conclusive. The validity of the contract depends upon the intent of the parties at the time made. Where the intent is to make actual delivery, the contract is valid. Such contracts are usually closed out prior to the delivery date. There are certain ‘lawful, customary and generally prevailing methods of closing out such contracts, settling them and discharging the parties thereunder which do not render such contracts wagering contracts or illegal, to wit, (1) by sales; (2) by direct set-offs; and (3) ringing off before the times of delivery specified in the contracts arrive, so that when those times come, no liability to deliver or to pay exists.’ Gettys v. Newburger (C.C.A.) 272 P. 209.
“These methods of settling such contracts are recognized as valid and are authorized by the rules of the exchanges. 27 C.J. §§ 275, 276, and 277, p. 1063 et seq.” 148 So. at 707.

See also Gerde Newman & Co. v. Curcuru, 18 La.App. 572, 139 So. 83 (Orl.1932), and Gruner v. Stucken, 3 So. 338 (La.1887).

We conclude the trial court properly affirmed the arbitration award requiring Jordan to pay Bache $13,766 with interest from June 9, 1973 until paid and properly dismissed Jordan’s suit against Bache.

For the reasons assigned the judgments appealed from are affirmed.

AFFIRMED.

      . Two proceedings were filed in Civil District Court and consolidated. One is Civil District Court No. 587-215, entitled “Branch M. Jordan v. Bache and Company Incorporated”, in which Jordan attempted to enjoin arbitration proceedings invoked by Bache and for declaratory relief. Jordan was unable to furnish the bound required by the trial court and the propriety of an injunctive stay was never tested. Bache resorted to arbitration because a failure in'its machinery put at issue what diminution of the original $16,778 debt was due to Jordan. Jordan at all times resisted payment asserting a gambling debt is unenforceable. The second case is Civil District Court proceeding No. 590-319, entitled “In the Matter of the Arbitration Between Bache & Co., Incorporated and Branch M. Jordan ”, wherein Bache moved for confirmation of the arbitration award. These cases were consolidated.

      . La.Const.1921 Art. 19, § 8 provides in part: “Gambling in futures on agricultural products or articles of necessity, where the intention of the parties is not to make an honest and bona fide delivery, is declared to be against public policy; and the Legislature shall pass laws to suppress it.”


author:
GULOTTA, Judge.
      LEMMON, Judge,

text:
    CONVERT-A-BED, INC. v. Fouad SALEM, d/b/a American Fabrics.
    No. 9259.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.
    Gordon K. Konrad, Gretna, for defendant-third-party plaintiff-appellant, George Wainer.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, James Ryan, III, New Orleans, for defendant-appellee, Fouad Salem, d/b/a American Fabrics.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

This appeal is from the dismissal of a suit for injunctive relief in which plaintiff claims the permitted use provision of a sublease has been violated.

Plaintiff had initially leased the premises in a shopping center from George Wainer, owner, to be used for the “sale of specialty furniture and related items”. The space was subsequently-subleased by plaintiff to defendant, Salem, with the lessor’s permission. The permitted use provision of the sublease states:

“Sublessee under the terms of this Agreement shall be restricted to the sale of fabrics and ladies apparel. * * * ”

According to plaintiff, because of the sale by defendant of men’s clothes and wearing apparel, defendant was in violation of the permitted use provision of the sublease. Plaintiff filed suit for injunctive relief against defendant-sublessee and joined the lessor as a necessary party defendant. The lessor, Wainer, third-partied the sublessee-defendant. The main demand and third-party petition were dismissed. Lessor appeals. We affirm.

In written reasons assigned for the dismissal of the petition, the trial judge stated:

“. . . it is virtually impossible to classify exterior wearing apparel as not included within the term ‘ladies apparel’. Some ‘ladies’ today wear virtually all types of outer garments worn by men. The opposite may not be true. A lease permitted use covering only men’s apparel might well effectively exclude the sale of ladies dresses, hats, head scarves, etc. But a permitted use covering the sale of ladies apparel excludes only men’s undergarments, and perhaps not even all types of such items. Some ladies today wear pants, jackets, and shirts of the same type as generally worn by men.”

The exhibits, some of which were price tags attached to the garments, indicated sizes for both men and women. Letters from manufacturers of the clothes stocked and sold by defendant (stipulated into evidence) indicated the merchandise is “unisex” wearing apparel. According to defendant, his retail outlet caters to the unisex customer trade. The manager of the store stated that approximately 20% of the clothing is “strictly” for ladies and that the remaining merchandise is unisex clothing. He added that the store stocks no merchandise which is “strictly” for men. Defendant approximates that 75% of his customers are female and 25% are male.

A clothing expert whose testimony was offered by plaintiff stated that some of the merchandise in defendant’s store was “strictly men’s suits”. However, he indicated that in his retail business he had not done any purchasing that would appeal to defendant’s trade.

The evidence considered, we conclude the record supports the trial court’s determination that the business conducted by defendant does not violate the permitted use provision of the sublease.

As a matter of law, it is true, as pointed out by lessor, that LSA-C.C. art. 1946 provides that words of a contract are to be understood “in the common and usual signification”. We believe, however, that the interpretation of the permitted use provision of the sublease as made by the trial judge (considering the facts) does not do violence to this Codal provision. The term “ladies apparel” can be subject to more than one interpretation. One restrictive meaning of the term is clothing manufactured exclusively for women. Another broader interpretation is clothing that may be or is worn by women. “Unisex” clothing falls into this broader meaning. The trial judge interpreted the term “ladies apparel” as clothing that may be worn by women and we cannot say his interpretation is unreasonable. Furthermore, the court’s interpretation is justified by the well-settled doctrine that any ambiguity in a lease must be interpreted in favor of the lessee. Governor Claiborne Apartments v. Attaldo, 231 La. 85, 90 So.2d 787 (1956); Riverside Realty Company v. National Food Stores of Louisiana, Inc., 174 So.2d 229 (La.App. 4th Cir. 1965).

Finding no error, we affirm the judgment.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge,

dissenting.

The intention of the provision restricting use of the premises to “sale of fabrics and ladies apparel” is to prevent the sale of items in competition with the men’s clothing store in the same shopping center.

The record establishes that, in addition to the two basic categories of men’s clothing and ladies’ clothing, there is a third category referred to as “unisex”, which partakes' of some of the characteristics of each of the basic categories. The issue is whether a provision restricting sales to ladies’ clothing permits the sale of unisex clothing. Although unisex clothing are worn by “some women”, they are not ladies’ clothing. Indeed, at least 25% of the sales in defendant’s store are for men’s use (and 75% of the sales in the Florida store operated by the same family, which carries the exact lines).

The competition intended to be prohibited by the restriction in the lease is in fact occurring, and the intention of the parties to the lease is being violated.

      . This case is not controlled by the rule that an ambiguous term for a lease is to be interpreted in favor of the lessee. Although the term “unisex clothing” may be ambiguous, the term “ladies apparel” is not.


text:
    J. Philip STEIN and Marvin C. Grodsky v. J. C. BRADFORD AND CO.
    No. 9266.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.
    Trudy H. Oppenheim, New Orleans, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, Earl S. Eichin, Jr. and Charles F. Thensted, New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   LEMMON, Judge.

Plaintiffs have appealed from a judgment maintaining an exception of prescription and dismissing their suit to annul the sale of stock which they purchased from J. C. Bradford & Co., a securities broker. The principal issue is whether prescription was interrupted by an earlier federal suit. We affirm.

The stock transaction, involving 3,100 shares of common stock in ‘ Howard Bros. Discount Stores, Inc., took place in June, 1972. In April, 1974 plaintiffs filed suit in federal court against Howard Bros, and Bradford, alleging that Howard Bros, had issued a quarterly report containing false and misleading representations as to sales and earnings and that Bradford’s salesman had delivered the report and other brochures to them and had represented that the information was correct. Plaintiffs alleged further that they did not discover the true condition of Howard Bros, until April, 1973, less than one year before suit was filed.

In July, 1976 plaintiffs amended their complaint, alleging without explanation that state courts “have pendent jurisdiction” and further alleging that Bradford’s salesman was “making a market” in the shares and had recommended the stock without reasonable basis or adequate investigation. Then in September, 1976 plaintiffs included in a pre-trial order the issue of violations of R.S. 51-701 et seq., but that issue was ordered deleted because the scheduled trial was only two weeks away. The suit against Bradford was dismissed by judgment after trial, the claim against Howard Bros, having been compromised earlier.

The present action against Bradford, filed in June, 1977, seeks to annul the 1972 sale of stock on the basis that neither Bradford nor its salesman had registered in Louisiana as required by R.S. 51:710.

R.S. 51:715E provides that “(n)o person may sue under this section (which provides for the liability of a person who violates R.S. 51:710) more than two years after the contract of sale.” However, plaintiffs assert that prescription was interrupted by the 1974 filing of the federal suit and citation upon Bradford. They rely upon R.S. 9:5801, which provides that “[a]ll prescriptions effecting the cause of action therein sued upon” are interrupted as to the defendant served by service of process.

The issue of prescription turns on the question of whether the cause of action asserted in 1974 for violation of federal securities law by misrepresentation was the same cause of action asserted in 1977 for violation of state securities law by failing to register. Plaintiffs contend that the “cause of action therein sued upon” was the same in each suit, the only difference between the two suits being the theory of recovery.

In National Surety Corp. v. Standard Acc. Ins. Co., 247 La. 905, 175 So.2d 263 (1965), a prescription case, the court quoted Hope v. Madison, 192 La. 593, 188 So. 711 (1939), which had defined a cause of action as follows:

“A cause of action is an act on the part of a defendant which gives rise to a plaintiff’s cause of complaint; ‘the existence of those facts which give a party a right to judicial interference in his behalf’; ‘the situation or state of facts which entitles a party to sustain an action’ ”. “ ‘When used with reference to the pleadings by which the cause of action is alleged, the phrase signifies the facts upon which the plaintiff’s right to sue is based, and upon which the defendant’s duty has arisen, coupled with the facts which constitute the latter’s wrong’ ”.

The factual basis for the cause of action asserted in the federal court complaint is Bradford’s salesman’s delivery of the false quarterly report and misrepresentation of the corporation’s true financial picture which he knew or should have known. The factual basis for the cause of action stated in the state court petition is Bradford’s failure to register as a broker-dealer in Louisiana before engaging in business here.

Clearly there were different acts or omissions by Bradford and different facts underlying plaintiffs’ right to sue Bradford in the two suits. This is vastly different from two suits asserting different theories of recovery based on the identical factual situation, as was the case in Hayes v. Muller, 243 So.2d 830 (La.App. 3rd Cir. 1971), cited by plaintiffs. Admittedly in this case, both causes of action are related to the same stock transaction and the demand in both suits is to recover the purchase price of the stock, but “demand” is not synonymous with “cause of action”. National Surety Gorp. v. Standard Ace. Ins. Go., above. The two causes of action are not the same, and the filing of one did not interrupt prescription as to the other.

The judgment is affirmed.

AFFIRMED.

      . In Mitchell v. Bertolla, 340 So.2d 287 (La.1976), a res judicata case, the court observed that the phrase “cause of action” in C.C. art. 2286 was a mistranslation of “cause”, which was likened to “grounds”.
      We hold, however, that “cause of action”, as used in R.S. 9:5801, means cause of action in its usual significance.


text:
    Ernest V. RICHARDS, IV v. GULFCO ELECTRONICS CORPORATION.
    No. 9271.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John W. Haygood, New Orleans, for defendant-appellant.
    Frederick A. Wild, III, Metairie, for plaintiff-appellee.
    Before SCHOTT, BEER and GARSAUD, JJ.
   SCHOTT, Judge.

Defendant has appealed from a default judgment taken by his former attorney for $1795.75 for fees and costs allegedly due him in connection with a number of matters he handled for defendant. Plaintiff was also awarded $300 as additional attorney’s fees pursuant to LSA-R.S. 9:2781. At issue are the sufficiency of the evidence introduced in support of plaintiff’s claim and whether the claim is to be considered one on an open account so as to make R.S. 9:2781 applicable.

The default judgment was taken by another attorney employed by plaintiff on the basis of an affidavit entitled “Affidavit of Correctness of Account and/or Note and Non-Military Service” made by plaintiff stating that he is familiar with defendant’s account and that the correct amount owed to plaintiff on the account is the $1795.75. Also filed in the record at the time of the default judgment being taken were five bills to defendant from plaintiff, itemizing various costs and reciting to some extent the details of the services rendered by plaintiff to defendant in connection with different lawsuits.

Since the trial judge awarded attorney’s fees pursuant to R.S. 9:2781, which provides for attorney’s fees in favor of a creditor in the case of a successful claim on an open account, it follows that he considered plaintiff’s claim one on an open account. In Delta Tank Mfg. Co. v. Dear-born Machinery Mov. Co., 144 So.2d 698 (La.App. 4th Cir. 1962), this court rejected the plaintiff’s contention that his claim against defendant was on an open account where the evidence showed it was a suit on a contract for the performance of work. The instant claim is for a series of contracts for professional services and cannot be considered an open account under the same reasoning as the cited case, so that the award of attorney’s fees pursuant to R.S. 9:2781 was erroneous.

Even though this was not a suit on an open account, however, proof by affidavit was authorized under LSA-C.C.P. Arts. 4896 and 5002, since the judgment was obtained in the First Parish Court of Jefferson Parish. However, the affidavit introduced in this case is insufficient because it does not specify in detail the confection of the various contracts sued upon and the work performed by plaintiff pursuant to those contracts. See Carte Blanche Plumbing & Heating Repair Service, Inc. v. Van Haeler, 337 So.2d 654 (La.App. 4th Cir. 1976), Eddie’s Hardware, Inc. v. Rago, 320 So.2d 276 (La.App. 4th Cir. 1975).

Because of the insufficiency of the affidavit on the basis on which the default judgment was obtained the judgment is set aside and the case is remanded to the trial court. Defendant will be allowed ten days from the date this judgment becomes final, to file responsive pleadings. Costs will await final disposition of the case.

JUDGMENT SET ASIDE.

CASE REMANDED.


author: BOUTALL, Judge.

text:
    James BATTISTE, Jr. v. L. A. FREY AND SONS, INC. James BATTISTE v. Louis FREY and Charles Frey.
    Nos. 9388, 9399.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearings Denied July 26, 1978.
    Gertler & Gertler, M. H. Gertler, New Orleans, counsel for James Battiste, Jr., plaintiff-appellee.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, Bruce A. North, Molony, Nolan, North, Riess & Hall, New Orleans, counsel for L.A. Frey & Sons, Inc., defendants-appellants.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

This case is based on workman’s compensation benefits and was consolidated for trial with a tort claim against executive officers arising out of the same occurrence, No. 9389, on our docket, 360 So.2d 613. The trial court awarded total and permanent disability benefits and the employer appeals. The employee is also an appellant, seeking in this case an award of attorney’s fees as penalty.

James Battiste was working as a general cleanup man for L. A. Frey & Sons, Inc., and when he was attempting to unclog a drain, the cleaning solution sprayed back into his face and eyes, causing the injuries complained of. The basic issue before us is the extent and permanence of those injuries.

Battiste had lost the sight in his left eye in an industrial accident in 1966, prior to his employment with Frey in 1970. Other than this blindness in one eye, he had experienced no problems with either eye during his tenure at Frey, until the accident on November 26, 1974. The solution that splashed back into his eyes was hot water and Oakite “Rustripper”. Plaintiff’s eyes' were washed out and he was taken to St. Claude General Hospital and then referred to Dr. Hilliard Haik, an opthalmologist, for further treatment. He was paid benefits from November 26, 1974 until February 17, 1975, at which time he returned to work at Frey in a different department.

The plaintiff’s eyes never did become completely cured, and he began experiencing more and more irritation. As a result of this, he sought further treatment from Dr. Haik, and in August, 1975, he also sought examination by Dr. Robert Azar, who had handled his previous eye injury. Plaintiff was then relieved of his work obligation and was placed back on compensation benefits from November 24, 1975 through January 13,1976. At this time, Dr. Haik was of the opinion that Battiste could return to work, although he was still having some problem with his eyes and was not discharged medically. From this time, Bat-tiste did not return to Dr. Haik but continued treatment exclusively by Dr. Azar. He has not worked since that time.

We are convinced from the medical testimony that plaintiff continues to experience problems with his eyes. As we see it, plaintiffs right or good eye, is not by itself suffering from the injuries sustained in the accident. However, his left or blind eye, is affected by the results of the accident and there is a sympathetic reaction which causes the good eye to become red and irritated, causing tearing and blurry vision, reducing the degree of vision obtainable through the good eye. The degree of loss of vision will vary with the sympathetic irritation, and Dr. Azar has testified that he had never been able to observe a loss of less than 8 to 10% of the good eye. The issue thus revolves around the rather neat problem that the good eye is not itself injured, and the loss of vision in that eye (presuming the other was not blind) is not of itself sufficient to constitute total disability. This problem was recognized at trial time and explained by Dr. Azar. This workman does not present a case where a simple, mathematical formula of loss of vision can be applied. The controlling factor is the relationship that the impairment to the eye bears to the workman’s ability to work. The impairment in this case, which varied from a minimum of 8% to more than 50% on occasions, so reduces this man’s ability to work, that he could only work in a protected environment with shortened hours. There is a preponderance of evidence supporting the declaration of disability by the trial judge, and we agree that he is totally and permanently disabled as long as the condition exists.

The only other issue in this case is whether attorney’s fees should be awarded for failure to pay claims under the provisions of R.S. 23:1201.2. Because of the peculiar way in which the trial court judgment was drawn, we first considered the possibility of remand. The original judgment read:

“ * * * that there be judgment * * together with interest and costs from date of judicial demand, expert’s fees and attorney’s fee, for Workman Compensation and permanent and total disability * * *

New trial was moved, pointing out failure to set any amount of attorney’s fees, among other things, and finally an amended judgment was signed containing the same quoted words, amending other portions of the judgment and stating:

“ * * * all expert fees be set at $175.00 each”.

Nothing was said about any amount of attorney’s fee. We were thus confronted with the question of whether the judge was awarding attorney’s fees as a penalty under R.S. 23:1201.2, or whether he was simply referring to the fact that attorney’s fees were included within the award of compensation due by plaintiff to his attorney, inasmuch as several attorneys had been of record for plaintiff. However, we have decided against remand, because the record before us does not disclose plaintiff’s entitlement to attorney’s fees.

The initial petition in this case was filed on September 12, 1975. At that time plaintiff’s eyes had generally recovered from the initial effects of the accident, and he had returned to work in another capacity. He had been paid benefits for time lost from work and his medicals were being paid. Shortly before filing suit was apparently the time when the secondary phase of his condition began, and he started experiencing the irritation and resulting impairment to his good eye. We note that it was just one month prior to suit, in August, 1975, that he consulted Dr. Azar for the first time. In any event treatment was continued after the filing of suit and his condition worsened thereafter, resulting in his being placed again under compensation benefits, and the medicals being paid until January, 1976. In January, Dr. Haik had concluded that plaintiff could return to work, and Dr. Azar had not yet begun treatment. During this period, it was considered that plaintiff was suffering irritations which were temporary in nature and were being resolved by treatment, and it was not until later, during the course of Dr. Azar’s treatment, that the full extent of plaintiff’s impairment crystallized. During all of this period there was the considerable problem of relating the impairment of vision to the ability to perform work, which we have discussed above.

A compensation insurer cannot continue in a refusal to pay benefits if it becomes reasonably apparent, even after suit is filed, from all available information, that the claimant is clearly entitled to benefits. Nevertheless, we cannot say from this record that there was ever a time, before or . after suit was filed, that defendant was not reasonable in insisting on its day in court for trial of its defense.

For the reasons above expressed, the judgment appealed from is amended by deleting therefrom any award of attorney’s fees under R.S. 23:1201.2, and as thus amended, it is affirmed at cost of defendants-appellants.

AMENDED AND AFFIRMED.


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    James BATTISTE v. Louis FREY and Charles Frey. James BATTISTE, Jr. v. L. A. FREY AND SONS, INC.
    Nos. 9389, 9388.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearings Denied July 24, 1978.

      Gertler & Gertler, M. H. Gertler, New Orleans, counsel for James Battiste, Jr., plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, counsel for Louis Frey and Charles Frey, defendants-appellees.
    Molony, Nolan, North, Riess & Hall, Brucé A. North, New Orleans, counsel for Louis Frey and Charles Frey, L.A. Frey & Sons, Inc., intervenor-appellee.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a tort suit for damages against the executive officers of the corporate employer, arising out of the same accident for which workman’s compensation benefits were sought in case #9388, 360 So.2d 611. These two cases were consolidated for trial, and plaintiff’s tort claims were dismissed, resulting in this appeal.

James Battiste was employed as a cleanup man at the food processing plant of L. A. Frey & Sons, Inc. On November 26, 1974 he was attempting to clean out some clogged drainage pipes, one of the duties he had been assigned. In attempting this operation, he obtained a quantity of a highly alkaline industrial product called “Oakite Rustripper”, in powder form, poured it into the drain, and then with a hose attempted to force hot water under pressure into the drain, causing the solution to spray back into his face and eyes, causing the injuries complained of. He contends that the executive officers of his employer, Charles and Louis Frey were negligent in providing this material to be used to unclog the drains, failure to provide him with the proper safeguards for handling such a material, and failing to instruct him in the proper use of the material.

The evidence in this case presented by plaintiff and defendants conflicts in a number of critical instances, and it is apparent that the credibility of the witnesses is the major factor in the trial judge’s determination of judgment in favor of defendants. The plaintiff testified that he was told to use Oakite Rustripper in cleaning out the drains by Louis Frey and by other supervisors, that he was never told that it was a highly dangerous product, nor given any instructions how to use it properly; that safety goggles or other safety measures were not available for his use, and that the product was kept readily available along with other cleaning solutions. Plaintiff produces the testimony of several fellow workers, related to him, in support of these contentions. Opposed to this, Louis Frey testified that this product was not to be used by plaintiff in his duties, but was used only for a specific operation in which plaintiff was not involved; that he had noticed plaintiff using this product on a prior occasion, and had stopped him from using it, warning him that he would be fired if he used it again, and had several other supervisors follow up his warning; that the product is kept separate from the other cleaning materials, and could only be obtained by someone who purposely sought it out, and that there were goggles and other safety equipment available, together with signs warning personnel about the dangers of using caustic materials. He is supported generally by the testimony of other supervisory personnel, each of whom testified that he had told plaintiff on a prior occasion never to again use the Rustripper.

The trial judge obviously believed the testimony of the defendants and disbelieved the testimony of the plaintiff and we agree. The pictures and other objective evidence supports the defendants’ position. It is quite clear that this product was kept in a shed not generally available to personnel except those who had a particular purpose to use it, and that there were adequate signs, etc., to warn even an incautious individual. We find no negligence on the part of defendants. Rather, we conclude that plaintiff sought to use this product despite the warnings previously given him, because it is apparently such a very strong cleanser that it would make his job of cleaning the drain easier, and that the plaintiff disregarded the plain warnings printed on the container in large letters against the precise use that plaintiff made of it.

Finding no negligence on the part of defendants, we affirm the judgment appealed from dismissing plaintiff’s suit.

AFFIRMED.


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    George R. WERNER v. BOARD OF TRUSTEES OF the NEW ORLEANS POLICE PENSION FUND OF the CITY OF NEW ORLEANS, Joseph F. Maes, Sr., Individually and in his capacity as President of the Board of Trustees of the Police Pension Fund of the City of New Orleans.
    No. 9458.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.
    C. James Gelpi, New Orleans, for plaintiff-appellant.
    Richard A. Dowling, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   STOULIG, Judge.

Appellant, George Werner, a sergeant in the New Orleans Police Department, is appealing from a judgment of the district court maintaining that it lacked jurisdiction to judicially review an administrative decision of the Board of Trustees of the New Orleans Police Pension Fund of the City of New Orleans (the Board) which rejected his application for a disability pension.

Initially Werner, according to the pleadings, had difficulty obtaining a hearing before the Board to ascertain his pension rights. Thus on April 5, 1977, appellant filed a petition for a writ of mandamus in Civil District Court for the Parish of Orleans to compel, among other things, the Board to grant him a hearing to determine the validity of his claim that he was disabled from functioning as a policeman because of injuries in three separate accidents that occurred in 1974. It was unnecessary for the court to consider whether or not the mandamus should issue because the Board finally held a hearing in this matter on June 7, 1977 and July 12, 1977. In a decision rendered October 26, 1977, the Board denied the pension. There is nothing in the record to indicate when the Board mailed the decision to plaintiff, if at all.

On November 18, 1977, appellant filed a supplemental and amending petition in Civil District Court in which he alleged the hearing initially sought had in fact been held and that “ * * * said decisions and findings of fact are in complete contravention of the facts and the reaching of any such decision is both arbitrary and capricious.” To this pleading, the defendant filed numerous exceptions, but the one at issue before us is the assertion that the district court lacked appellate jurisdiction to review the Board decision.

On January 9, 1978, the district court rendered judgment maintaining the exception to the jurisdiction noting that under La.Const.1974 Art. 10, § 12 the proper forum is the Court of Appeal, Fourth Circuit. From this ruling, Werner has appealed to this court.

The issues before us are these: (1) Does any appeal lie from the decision of the Board?; (2) If Werner may appeal, which court has jurisdiction at this stage?; and (3) Has Werner perfected any appeal timely?

As to the first issue, R.S. 33:2284 confers sweeping powers on the Board to manage the pension fund including the right to:

“ * * * hear and decide all applications for pensions. Its decisions on such applications shall be final and conclusive. There shall be no appeal from the finding of the board. * * * ”

This prohibition falls far short of the minimal requirements of the due process clauses of the federal and state constitutions (U.S. Const. Amendment 14 and La.Const.1974 Art. 1, § 2) and must yield to the provisions of the Administrative Procedure Act R.S. 49:951 et seq., particularly Section 964(A) which grants judicial review of agency determinations.

The right to judicial review of administrative decisions was extensively discussed in Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971), wherein the Supreme Court noted that statutory attempts to preclude review must be carefully considered and judicially nullified where substantial rights were being denied. We quote the pertinent language:

“Article 1, Section 6, of the Louisiana Constitution provides that the courts must be open to every person for adequate remedy by due process of law. We have held that although administrative bodies have power to determine as original propositions the matters assigned to them under statute, a party whose legal rights have been adversely affected by that determination may test its legal correctness in the courts. See Meyer v. Board of Trustees, etc., 199 La. 633, 6 So.2d 713, and cases there cited; State ex rel. Rathe v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153; Parker v. Board of Barber Examiners, 84 So.2d 80 (La.App. 1st Cir. 1955); Pettit v. Penn, 180 So.2d 66 (La.App. 2nd Cir. 1965), writs refused 248 La. 696, 181 So.2d 397. Thus, with the presumption that all administrative determinations are reviewable by the court and a conviction that judicial review may even be necessary in the face of legislative attempt to deny it, in the absence of constitutional restrictions we must not only favor but preserve the right of review. The mandate of Article 1, Section 6, is of overriding concern as we consider the matter before us, which on its face presents a legal dispute between an individual and an administrative body.” 253 So.2d at 203-04.

The Board’s brief does not seriously challenge the basic right to appeal but because the issue has been raised and to avoid future dispute on this point, we hold that the applicant Werner is entitled to judicial review of a decision rejecting his application for a disability pension.

This brings us to the second issue of which forum is proper. The district court declined jurisdiction citing La.Const. Art. 10, § 12, which directs an aggrieved party to appeal to the appellate court having jurisdiction in the district where the commission held the hearing. As appellant points out, this section relates only to civil service cases because it comes within Part I of Article X of La.Const.1974, entitled “State and City Civil Service”. Appellant’s hearing was not one before a civil service commission. We conclude the Civil District Court for the Parish of Orleans under R.S. 49:964(B) is vested with the jurisdiction to entertain plaintiff’s petition for a judicial review of the administrative proceedings of the Board.

Finally, we must consider whether the application has been filed timely. The cited section requires filing of the petition for review in the district court within 30 days after mailing of the decision. The record does not disclose when the petition was mailed but the supplemental and amending petition was filed well within 30 days of the signing of the decision. While the pleading does not denominate the relief sought, we consider the complaint of error and the alleged injury to the appellant by the result as basic allegations in the petition for a judicial review of the Board’s proceedings. Apparently so did defendants because the exceptions filed by them question only the propriety of the appellate forum. We hold the supplemental petition is a petition for a judicial review of an administrative proceeding that was filed timely.

For the reasons assigned the judgment of the district court maintaining the exception to the jurisdiction is reversed and said exception is dismissed; and this matter is remanded to the district court for further proceedings consistent with the views herein expressed.

REVERSED AND REMANDED.


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    Mrs. Gwendolyn Barnett, w/o and Dale BARNETT v. Ronald J. VANNEY and American Guaranty and Liability Insurance Company and Vincent Lauro, Cooper and Weir Company, Inc. and United States Fidelity and Guaranty Ins. Co.
    No. 8353.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 1978.
    Rehearing Denied July 26, 1978.

      Gerald J. Leydecker, New Orleans, counsel for Mrs. Gwendolyn Barnett, w/o and Dale Barnett, plaintiffs-appellants.
    Wiedmann & Fransen, A. Remy Fransen, Jr., New Orleans, counsel for Vincent Lau-ro, Cooper and Weir Co., Inc. and United States Fidelity and Guaranty Ins. Co., defendants, appellees-appellants.
    Wood Brown, III, New Orleans, counsel for Valsin Vanney, Ronald Vanney and American Guaranty & Liability Ins. Co., defendants-appellees; Montgomery, Barnett, Brown & Read, New Orleans, of counsel.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Mrs. Gwendolyn Barnett and her husband Dale Barnett sue for her personal injuries and damages arising out of a three vehicle collision. From a jury verdict and judgment in favor of plaintiffs for $35,000, the plaintiffs have appealed the award as inadequate; defendants Vincent Lauro, Cooper & Weir Company, Inc. and United States Fidelity and Guaranty Insurance Company have appealed contesting liability, and defendants Ronald J. Vanney and American Guaranty and Liability Insurance Company have answered the appeals.

The facts are as follows. Mrs. Barnett was driving a community owned automobile on Interstate 10 towards New Orleans. As she proceeded over the overpass across the Industrial Canal, she was travelling in the center lane of the three traffic lanes. When she reached a location about 200 yards from the bottom of the overpass, she slowed her vehicle down because of traffic congestion and stopped vehicles ahead, resulting from a prior collision at the foot of the overpass. While her vehicle was in the process of stopping, it was struck in the rear by the front of the following vehicle in the center lane, driven by Ronald J. Van-ney. The impact propelled the Barnett vehicle forward and on a slight angle. Some seconds later, a truck driven by defendant Lauro in the scope of his employment with Cooper & Weir Company, Inc., struck the right rear of the Barnett vehicle with its left rear tire. As a result of these two collisions Mrs. Barnett experienced pains in her neck, shoulder, low back and chest, the basis for her present suit.

The jury found negligence on the part of Vanney and Lauro, no negligence on the part of Mrs. Barnett, and the defendants were cast in solido. We affirm these findings of negligence.

The negligence of Vanney is readily apparent and is no longer seriously contested. He was travelling in the same lane as the Barnett vehicle, and was under an obligation to operate his vehicle in such a manner as to be able to stop with safety. His defense is largely based on the fact that the weather was overcast and misty and that the road was wet, causing him to skid into the vehicle ahead. We point out that plaintiff did not come to any sudden or emergency stop for the traffic in front of her, and there is no reasonable basis to conclude that Vanney could not also stop.

The evidence also preponderates to prove the negligence of Lauro. He too was driving in the center lane, operating a stake-body truck, and between him and Vanney were three automobiles, all in the center lane. As each of those vehicles approached the rear of Vanney’s car, it turned into the left lane and proceeded safely onward. Lauro pulled into the right hand lane in order to pass the stopped vehicles. He safely passed Vanney on the right, but his truck began skidding sideways due to his application of the brakes and his left rear struck the right rear of the Barnett vehicle. Issue is made that the Barnett car was still spinning as a result of the collision with Vanney and that its right rear came into the right lane in which Lauro was travelling, causing the collision, Mrs. Barnett testifies that she was stopped in the center lane and attempting to get out of her vehicle at the time of the collision. The issue thus becomes one of credibility of the witnesses, and it is apparent that the jury adopted Mrs. Barnett’s testimony as being truthful. We too find that the evidence preponderates in support of Mrs. Barnett’s testimony, and we agree with the jury’s finding, holding both defendants in solido.

The most troublesome aspect of this litigation arises in the evidentiary rulings and the charge of the trial judge. The trial judge permitted evidence of the financial condition of Vanney, one of the defendant drivers, and, because he was a minor, also Vanney’s father. The insurance coverage of the Vanneys’ carried by American Guaranty and Liability Insurance Company was $25,000, and these policy limits were permitted in evidence as well. $100,000 policy coverage of the other defendants was not permitted in evidence. The trial judge charged the jury as follows:

“You may take into consideration that the insurance policy of the defendants Valsin and Ronnie Vanney contains a limit restriction of the insurance company’s liability for $25,000 plus interest in this case. It is within your province to decide that the plaintiffs are entitled to more than that, however, and in the event that you decide if the Vanneys are responsible to plaintiffs anything over the policy limits must be paid by them and their ability to pay is a factor which must be considered.”

Two contentions have arisen as a result. Plaintiffs contend that the result of that evidence and the charge thereon is an inadequate verdict, which barely covers the special damages of medical expense, loss of wages, etc. Defendant Lauro contends that the situation resulted in his being cast in liability, to his prejudice, in order to provide a responsible defendant who could pay the judgment.

We feel constrained to point out that there will invariably be problems arising under existing jurisprudential rules when multiple defendants are sued, and some are impecunious and some are not. Innumerable cases have held that the inability of a defendant to pay a judgment is a proper subject of consideration in assessing damages due as a result of a tort.

This rule was recognized in Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (La.1898) and in Daly v. Kiel, 106 La. 170, 30 So. 254 (1901) and followed in numerous cases, to mention a few: LeDoux v. So. Farm Bureau Cas. Ins. Co., 339 So.2d 966 (La.App. 3rd Cir. 1976), Carter v. Strother, 312 So.2d 672 (La.App. 2nd Cir. 1975), Territo v. Landry, 313 So.2d 309 (La.App. 1st Cir. 1975). See especially, Davis v. Moore, 353 So.2d 740 (La.App. 4th Cir. 1977) writs denied, La., 354 So.2d 1379. The basis for such a ruling is generally concluded to be a matter of fairness so that a defendant, who has limited ability to respond in judgment, would not be confronted with such a large judgment as may destroy him financially. It is difficult to understand why such a concept has arisen in Louisiana law, because the damages allowed in tort cases are compensatory damages and not punitive damages. If damages are to be compensatory only, the damages should be fixed solely upon the consideration of the plaintiff’s plight, not the defendant’s financial ability to respond. Although our courts have adhered to the view of permitting evidence of limitations on ability to pay, yet they have refused to permit a plaintiff to introduce evidence to show the wealth or the ability of a defendant to pay. See Ashley v. Nissan Motor Corp. in U.S.A., 321 So.2d 868 (La.App. 1st Cir. 1975), and the cases cited therein, writ denied La., 323 So.2d 478, with comment.

Thus, such a plaintiff as here concerned cannot complain of introduction of inability to pay, yet he is prevented from showing that the other defendant is responsible for any reasonable judgment. At the same time, between the co-defendants, the inequities of this situation seem to us to be an unnecessary burden imposed, and could result in lack of fairness to the wealthier defendant. Nevertheless, the rule of evidence relating to the defendants’ inability to respond in damages is too well entrenched for an appellate court to upset it. See, e. g., Davis v. Moore, supra.

We do feel however in this case, where one defendant is relatively unable to respond, and the other co-defenRant is in a much better financial condition, that the action taken by the trial judge in permitting evidence of inability to pay, together with the policy limits of that defendant’s insurance company is prejudicial both to plaintiff and the co-defendant. It is our opinion that a fairer result is reached and a better application of the law is attained by the trial judge refusing to permit any evidence of ability to pay when there are multiple defendants or by refusing to permit into evidence any policy limits, where there are multiple policies involved. We refer to the case of Ashley v. Nissan Motor Corp., supra, but see writ denial. As long as the law permits evidence of limited ability to respond, no evidence of policy limits seems more consistent with the present court rulings. The alternative, disclosure of all policy limits may lead to such results as in Adams v. Ross, 300 So.2d 192 (La.App.1974) in which the court noted that the judgment was based on the total amount of policy limits.

With these considerations in mind, we turn to the issue of the adequacy of the $35,000 judgment.

After the accident, Mrs. Barnett complained of pains in her neck, shoulder, low back and chest. She reported to a doctor several hours after the collision and has received treatment in one form or another down to the time of trial. Medical evidence is overwhelmingly preponderant that she has suffered from a herniated disc in her cervical spine and a herniated disc in her lumbar spine. Her cervical problem was largely resolved by subsequent operation and course of treatment. The low back, however, has been the subject of extensive treatment and a number of operations resulting in Mrs. Barnett’s inability to work with any degree of consistency. She has considerable permanent impairment of her back, and suffers considerable pain. If her present condition is completely a result of the collisions in which she was involved, it is apparent that the jury verdict is grossly inadequate.

It is not seriously contended that Mrs. Barnett is not severely handicapped or not pain free. Instead it is urged that her condition is the result of physical conditions which preexisted the accident, and which would have worsened in any event without the intervention of the trauma. The record discloses that some months prior to the collision, Mrs. Barnett had an operation on her cervical spine in which the protruding disc at the C-5, 6 interspace was excised. She had been symptom free after recovery from that operation until the accident, after the accident her complaints became severe. Her physicians were soon convinced that it was necessary to surgically repair this area and accordingly, the disc was surgically removed and a laminectomy performed. She experienced a slow and uneventful recovery from this disabling condition.

The low back area however shows a different course of events. Initially the doctors were not concerned so much with the low back as the most pressing problem was the cervical area. The low back was treated conservatively until some time after the cervical operation, and thereafter Mrs. Barnett began to experience more and severe pain in the lumbar region such that an operation became necessary to relieve her. Due to the instability of her back, the operation was not successful and several subsequent operations were attempted. At trial time, no one could say for certain that good results had been permanently achieved.

There was no medical disagreement as to Mrs. Barnett’s condition, and x-rays and myelograms disclosed that Mrs. Barnett was suffering a herniated disc just above the sacrum. The problem is when and how did it occur. Although Mrs. Barnett insists that she had no problems with her back prior to the accident, except some pains experienced as a result of a pregnancy, the statements that she gave to some of the doctors relate that she did have a prior history of back pains. Although all of the doctors concluded that she did indeed suffer from disc problems after the accident, there is no such unanimity as to what caused her problems. Taken as a whole, it is apparent that the conclusion of causation rested in the main upon the history given by the patient. There is sufficient evidence in the record for the jury to have concluded that Mrs. Barnett had a pre-existing back problem and that the collision simply caused a temporary aggravation of her problems. Under such a finding, the award of $35,000 could not be set aside by this court even though it appears to be somewhat low. We have no way of knowing precisely what determination the jury made, but we do not possess the authority to substitute our opinion, however reasonable it might be, for the conclusion of the jury when ample evidence exists in the record to support that finding. We find no manifest error to justify an increase in the award.

For the reasons above assigned, the judgment is affirmed.

AFFIRMED.