author: DOMENGEAUX, Judge.

text:
    John L. STRACENER, Individually, etc., Plaintiffs-Appellants, v. Dr. E. R. BROWN, Defendant-Appellee.
    No. 5985.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.

      Evans & Bradley by Mitchel M. Evans, DeRidder, for plaintiffs-appellants.
    Raggio, Farrar, Cappel & Chozen by R. W. Farrar, Jr., Lake Charles, Hall, Coltharp & Lestage, DeRidder, for defendant-appel-lee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

This is a suit brought by plaintiff, John L. Stracener, for individual damages and for damages accruing to his minor child, Jerry Lewis Stracener. The suit is against defendant, Dr. E. R. Brown, M. D., a general practitioner, for alleged malpractice on the part of the doctor in the treatment of Jerry Lewis Stracener. It is alleged generally that Doctor Brown failed to give plaintiff’s baby the proper medical attention and treatment after birth, which omission was the cause of the child’s mental and motor retardation.

The case was tried before a jury, and a verdict was rendered in favor of defendant, and plaintiff’s suit was ordered dismissed at his costs. Plaintiff has appealed. We affirm.

Essie Mae Stracener, age 41 years, became pregnant for the twelfth time. In due course she went to the DeRidder Clinic in DeRidder, Beauregard Parish, Louisiana, and became the patient of Doctor Brown. Her pregnancy was confirmed and it was determined that she was a diabetic.

DeRidder Clinic is a medical corporation composed of three doctors, Doctor Carter, Doctor Sauls, and the defendant, Dr. E. R. Brown. Based on the procedure used by the DeRidder Clinic, she was seen on occasions by all three of these physicians. Due to the known incompatibility of the Rh factor between her husband and her, plus the new finding of diabetes, she was seen often and admittedly was given proper prenatal care.

Due primarily to her condition of diabetes, it was decided that she would be delivered by Caesarean section. Accordingly, on April 9, 1974, at which time she was considered to be 8V2 months pregnant, she was admitted to the Beauregard Hospital in the City of DeRidder for this surgery. However, on the evening of April 9, 1974, she began to show signs of commencing labor, and by the morning of April 10,1974, it was determined that she was ready to deliver naturally. During the morning of April 10, 1974, she was removed from the maternity ward to the labor room and at 12:40 P.M., April 10, 1974, Jerry Lewis Stracener was born with Doctor Brown in attendance.

Doctor Brown drew cord blood and forwarded it to the laboratory of Beauregard Hospital for testing so as to determine whether or not the blood of Jerry Lewis Stracener had any Rh factor incompatibility, and, if so, whether this was causing any problems. At the time the infant was delivered, it had some difficulty in crying and exhibited evidence of being cyanotic, i. e., a blue baby. It was immediately placed in an incubator and was observed very closely for a period of approximately 3V2 hours. By this time the color of the baby had been corrected and, it appeared normal. When removed, it was cleaned and exhibited to the mother. At that time, Doctor Brown saw no evidence of jaundice.

That evening, at approximately 8:10 P.M., nursery personnel noticed a slight jaundice and Doctor Brown was summoned to Beauregard Hospital. It is the position of Doctor Brown that he went from the nursery to the room of Mrs. Stracener to inform her of the jaundice and to advise her that the baby might have to be taken to another hospital outside of Beauregard Parish where there would be facilities for blood exchange. The testimony of Doctor Brown is that Mr. Stracener was in the room at the time and was advised that the child might have to be taken to Lake Charles, Alexandria, or Shreveport, Louisiana for blood exchange should the necessity therefor arise.

Early in the morning of April 11, 1974, while making his rounds, Doctor Brown noted a marked progression of the jaundice. Shortly thereafter, he received the results of the Coombs test, which was positive and showed that there was the possibility that the child might have a blood factor problem. He then immediately ordered a biliru-bin test which is a more exact test as to the existence of the blood factor problem. Between 10:00 and 10:30 A.M., he received the report of this test, which indicated that there was a possibility that there would be a necessity for a blood exchange. However, the results of this test were such that, at that time, an exchange blood transfusion was not indicated and as is customary he requested that another bilirubin test be scheduled for noon.

At approximately 11:00 A.M. Doctor Brown was called by the hospital and advised that the baby was showing more changes and at a faster rate. The expert testimony indicates that the crucial factor in a situation such as this is a rapidity with which the bilirubin content in the blood increases. In this case the unusual increase in jaundice (indicating bilirubin) alarmed the doctor so that he returned to the hospital, and at that time instructed the nurses to prepare the baby for discharge, dispensing with further tests in view of the emergency situation. He then advised the family that the baby should be taken to Lake Charles Memorial Hospital, Lake Charles, Louisiana, as had been decided by the family. He, in turn, commenced to make arrangements with Dr. Patrick Unkel, a pediatrician in Lake Charles, and during the noon hour, or shortly thereafter, he discussed the matter with Doctor Unkel and placed him on notice that the child was being transported to Lake Charles, Louisiana, for his attention.

During the noon hour, or shortly thereafter, Mr. Stracener came to Doctor Brown’s office and the doctor discussed with him the transfer of the child to Lake Charles. This concluded Doctor Brown’s contact with the child until subsequent to the blood exchanges which were performed later that day in Lake Charles by Doctor Unkel.

There is confusion, and contradictory testimony, as to when the parents were advised by Doctor Brown of the need for the transportation of the child to Lake Charles, what took place in the interim, and the reasons for the delay in getting the child to Lake Charles Memorial Hospital, Lake Charles, Louisiana. The records of Beauregard Hospital show that the baby was discharged to the family at 3:30 P.M. and was taken to Lake Charles by his father. The child was admitted to Lake Charles Memorial Hospital at 5:00 P.M. on the same date that it was discharged from Beauregard Parish Hospital. A bilirubin test was performed at the Lake Charles hospital shortly thereafter and its result indicated the need of a blood exchange. This exchange was performed by Doctor Unkel with considerable difficulty. Subsequently, it was determined that a second exchange was necessary and this was also performed. On April 18, 1974, the bilirubin content of the blood had stabilized at 19.7 and the child was discharged from the Lake Charles hospital on April 19, 1974.

After the discharge from Lake Charles Memorial Hospital, Doctor Unkel did not see the child until March 27, 1975, at which time he felt there was evidence of brain injury and this conclusion remained through his examination of June 5, 1975, January 26, 1976, and May 18, 1976. Seeking an expression from a specialist more familiar with the type of disability found by him, Doctor Unkel referred the child to the Blue Bird Clinic, Houston, Texas, where the child was examined and tested by Dr. Thomas E. Zion. Doctor Zion specializes in conditions of this type. Doctor Zion rendered the opinion that the child had some brain damage but stated that the extent could not be determined at this early stage of the child’s development.

We find the issues of this case to be:

(1) Were the defendant’s diagnosis of the child’s condition and his subsequent actions untimely so as to amount to negligence?
(2) Was the defendant negligent in failing to make the necessary arrangements in transferring the child to Lake Charles for further treatment?

As a general rule, it is the duty of a doctor to exercise the degree of skill ordinarily employed under similar circumstances by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case. Meyer v. St. Paul-Mercury Indemnity Company, 225 La. 618, 73 So.2d 781 (1954).

In this case, there was ample evidence for the jury to conclude that Doctor Brown fulfilled that duty. The doctors from his community, Doctors Carter and Strecker, testified that to the best of their knowledge, Doctor Brown exercised the degree of care and skill ordinarily employed under similar* circumstances by members of his profession in good standing in the De-Ridder, Louisiana, locality. Doctor Zion, the Houston physician, testified that this was a highly unusual case in that the mother had no previous Rh factor problems with her eleven other children, and that the bilirubin content in the baby’s blood rose with unusual rapidity.

Doctor Unkel, the Lake Charles physician who performed the blood exchanges, testified that he would have liked to have seen the child earlier, but also said that he was in no position to state that the baby could have been sent to Lake Charles at an earlier time. Doctor Unkel also testified that a blood exchange is a very dangerous operation to be performed on a small child, and usually a series of bilirubin tests are run before the exchange is performed. However, in this highly unusual case, further tests were dispensed with by Doctor Brown and Doctor Unkel because of the rapidity with which the bilirubin content was rising. Doctor Strecker testified that he would have acted in a similar manner to Doctor Brown in making arrangements for transportation to Lake Charles if he had been the doctor on the case.

Although there is confusion as to who was supposed to make the arrangements to transport the child to Lake Charles, there is ample evidence in the record upon which the jury could base its decision that Doctor Brown acted in accordance with the community standard in making arrangements for the child to be transferred to Lake Charles for further treatment.

It is the concensus of the medical testimony that Doctor Brown diagnosed a possible Rh factor problem in the early stages of Mrs. Stracener’s pregnancy, and handled the problem with the best techniques available. We find no evidence in the record which faults Doctor Brown for any of his actions in this case. We find no manifest error in the judgment of the district court.

For the above and foregoing reasons we affirm the judgment of the district court, and cast costs against plaintiff-appellant.

AFFIRMED.

      . Originally, John L. Stracener was joined by his wife, Essie Mae Stracener, in seeking certain individual damages resulting from the alleged malpractice of Doctor Brown. However, her suit and the personal demands of John L. Stracener were dismissed in the district court and no appeal has been taken therefrom.

      . It is admitted that neither the cyanotic condition nor the actions of the defendant in coping with it form any basis for this lawsuit.

      . The cord blood test.

      . Doctor Brown later saw the baby on two occasions for a cold, bronchitis, and asthma, but before the retardation (discussed later) was discovered. No issue was made of this treatment.

      . The technical name of the damage is Kernic-terus. This is a result of hyperbilirubinemia— high levels of bilirubin, a pigment, in the blood. The symptoms of Kernicterus are motor and mental retardation.

      . We note here that plaintiff(s) did not file suit against the Beauregard hospital or any of its staff.


source: Caselaw Access Project

author: ROGERS, Judge.

license: Public Domain

text:
    Price Felton JONES, Plaintiff-Appellant, v. FRANCIS ROMERO, INC., et al., Defendants-Appellees.
    No. 5995.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Joseph A. Koury, Lafayette, for plaintiff-appellant.
    Landry, Watkins, Cousin & Bonin by William 0. Bonin, New Iberia, for intervenor-appellant.
    Caffery, Duhe & Davis and Gibbens by Patrick T. Caffery, New Iberia, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

This tort action was instituted by Price Felton Jones against defendants, Francis Romero, Inc. and American Insurance Company, seeking damages for the sum of six hundred and forty-four thousand one hundred and no/100 ($644,100.00) dollars for personal injuries.

Hartford Accident and Indemnity Company, the workmen’s compensation insurer for plaintiffs employer, intervened in the suit, seeking reimbursement of the sums paid to plaintiff in the form of workmen’s compensation benefits and medical expenses. The jury returned a verdict for defendants, finding that plaintiff was the statutory employee of defendant Francis Romero, Incorporated, and pursuant thereto, the trial judge signed a judgment in favor of defendants and against the plaintiff, and the intervenor, dismissing both actions with prejudice, whereupon plaintiff and intervenor individually filed appeals to this court.

The major issues presented by the plaintiff-appellant are as follows: (1) The trial court erred in its instructions to the jury on the definition of a statutory employee; (2) the jury’s finding that plaintiff was the statutory employee of Francis Romero, Incorporated was manifestly erroneous and was clearly contrary to the law and the evidence; and (3) in the alternative, if plaintiff was correctly found to be the statutory employee of Francis Romero, Incorporated, then the trial court erred in holding that such designation confers tort immunity on one found to be the statutory employer.

The major issue presented by intervenor-appellant, in addition to its adoption of those errors urged by plaintiff, is that in the further alternative, plaintiff should have been held to have been a borrowed employee of Francis Romero, Incorporated, thereby making the latter responsible for one-half , of all workmen’s, compensation benefits paid or to be paid plaintiff.

On September 5, 1975, plaintiff filed a petition for damages against defendants alleging that he was injured due to the negligence of an employee- of Francis Romero, Incorporated (Romero), in an accident that occurred on or about February 27, 1975, at Romero’s shell business located at the Red Hawk Shipyards in Iberia Parish, Louisiana.

Plaintiff Jones, at the time of the accident, was employed as a welder’s helper by the company of Shockley and Whittington Welding Works (Shockley) which leased property for its ship repair operations at the Red Hawk Shipyard adjacent to the property leased by Romero. Prior to the accident, an agreement was entered into between Doyle Shockley of Shockley and Whittington and Mr. Francis Romero whereby Shockley was permitted to keep some of its equipment on Romero’s property in exchange for Shockley allowing his employees to perform some welding work on Romero’s equipment when it was needed.

On the day of the accident, plaintiff, a welder’s helper, and the welder he worked under, Tommy Oubre, were requested by Romero to weld a broken hydraulic arm on one of his front loaders. Upon completion of the welding, plaintiff climbed onto the front tire of the loader in an attempt to reinsert a pin that had been removed to facilitate the welding operation.

The testimony is contradictory at that point as to whether the machinery attached to the loader was operating or moved while Jones was atop the tire, but for whatever cause, Jones did fall off the tire and onto the ground below, fracturing his right upper femur, and requiring major surgical and other medical treatment.

Plaintiff’s suit for personal injuries was based on this accident, plaintiff alleging that defendant Romero’s employee’s negligence caused the injury. Defendants filed an answer, generally denying the allegations of plaintiff’s petition, and in the alternative, alleging contributory negligence, in the further alternative, alleging that plaintiff at the time of the accident was the statutory employee of defendant Romero, and therefore, plaintiff was limited to a claim for workmen’s compensation, and in the further alternative, alleging that plaintiff at the time of the accident was the borrowed employee of defendant Romero, which status would also limit plaintiff’s claim to one of workmen’s compensation.

Hartford Accident and Indemnity Company, who as the insurer for Shockley'had been paying plaintiff’s workmen’s compensation benefits and medical expenses, intervened in the suit seeking reimbursement from defendants for these sums expended.

Plaintiff requested a trial by jury, and after both parties had presented their case, the judge charged the jury as to the law and presented the jury six interrogatories for deliberation and answer. The jury returned a verdict finding that plaintiff was the statutory employee of defendant Romero, and accordingly, judgment was signed in favor of defendants and against plaintiff and intervenor. It is from this adverse judgment that plaintiff and intervenor have filed appeals to this court.

The first two issues raised by plaintiff are that the trial judge improperly defined the term “statutory employee” in his charge to the jury, and that the jury committed manifest error in finding that Jones was the statutory employee of defendant.

The “statutory employee” concept is derived from LSA-R.S. 23:1061 Principal contractors; liability, which provides an employee of a contractor the protection of being able to seek workmen’s compensation benefits directly from the person (referred to as the principal) with whom the contractor has agreed to execute work.

The purpose for such a section in the Workmen’s Compensation Act was well stated by Professor Wex S. Malone at 10 La.L.Rev. 25 (Nov. 1949):

“In the absence of some special provision in the Workmen’s Compensation Act it would be possible for an employer to avoid his compensation responsibility merely by interposing an independent contractor or sub-contractor between himself and his employees. This, of course, would not deprive the employee of protection so long as the intermediary contractor is solvent or protected by insurance. However, the possibility of using an impecunious middle man as a means of dodging compensation remains, and it was necessary to prevent this by subjecting certain principals to the compensation claims of their contractors’ employees. A provision of this type is found in most compensation acts, and the principal who is affected thereby is commonly known as a statutory employer.”

A relevant limitation found in the above cited statute is that the work to be executed by the contractor must be “. a part of his [the principal’s] trade, business or occupation . . .”

The major basis of plaintiff’s arguments on appeal emanates from this limitation, plaintiff contending that section 1061 has no application because Romero (the principal) was in the retail business of selling shell, gravel and concrete pipe, and was not in the welding business; therefore, Romero had not contracted with Shockley to execute work that was a part of Romero’s “. . . trade, business or occupation...."

The trial judge, in his charge to the jury, defined a “statutory employee” in the following manner as found at pages 708 and 709 of the record:

“. . . The law also is that an employee may be what is called a statutory employee of an employer.”
* * * * * *
“This means that if an employee is working for one company, and on their payroll, but is doing work for another company, he may under certain conditions become what is called the statutory employee of the second company so that he can’t sue the second company in tort either, and his sole remedy is for workmen’s compensation benefits. A party claiming the defense of statutory employer has the burden of establishing by a preponderance of the evidence, that the work in which the plaintiff was injured was part of the regular trade, business or occupation of the party claiming to be the statutory employer, or so closely related thereto as to be an integral and substantial part of the business, trade or occupation of the statutory employer, and must also show that the work was essential to the business of the party claiming to be the statutory employer.”

Plaintiff complains in his appellate brief that this charge was “. . . overly broad and an erroneous paraphrase of Sec. 1061 . . .,” that the “. . . language is extremely legalistic and difficult for the lay person to understand .,” and that the charge “. was in error because it was not only inadequate but also confusing. . . .”

After reviewing the jurisprudence interpreting LSA-R.S. 23:1061 and the statute itself, this court finds little merit to plaintiff’s complaints. The charge uses the exact terminology employed in the statute when it twice refers to the principal’s “. . . trade, business or occupation . .” The charge appears to be even more restrictive than the statute because of the limitation that the type of work be part of the “. . . regular trade, business or occupation . . .’’of the principal, or “. . .so closely related thereto as to be an integral and substantial part . . . ” and further, “. . . that the work was essential to the business of the principal . .” (italics added)

It is undisputed that Romero was not in the welding business; his business at the shipyard involved loading and unloading heavy bulk products which necessitated the constant, daily use of heavy equipment. The record' indicates, and common sense dictates, that to keep such heavy equipment operational necessitates welding services. Mr. Romero testified that all of his men, himself included, performed occasional welding on his equipment. The cases are legion holding that repair or maintenance work is part of a principal’s “trade, business or occupation”.

As noted by this court in Meche v. Farmers Drier and Storage Company, 193 So.2d 807, at p. 809 (La.App. 3 Cir. 1967):

“. . . [t]o determine if the work in which the employee is injured is part of the principal’s business one relevant factor is whether such work is customarily considered a part of the regular business of employers performing through their own employees the work of the occupation in which the principal is engaged.”

In that case, the court held that rodent extermination was “. . . a regular and integral part of the business of operating rice warehouses . . . ” (italics added), and therefore, LSA-R.S. 23:1061 was applicable, which limited the action against the defendant to workmen’s compensation, and prohibited plaintiff’s tort action. In so holding, this court used language very similar to that employed by the trial judge in the instant suit in his charge to the jury.

[For other cases holding that repair or maintenance work was part of the principal’s “trade, business or occupation” see: Frey v. Brown, 254 So.2d 491 (La.App. 3rd Cir. 1971). Drilling company found to be statutory employer of plaintiff injured while making repairs on a pipe laydown machine; Allen v. United States Fire Insurance Company, 222 So.2d 887 (La.App. 2nd Cir. 1969). Oil company found to be statutory employer of plaintiff injured while welding piping; Arnold v. Stupp Corporation, 249 So.2d 276 (La.App. 1st Cir. 1971). Building owner found to be statutory employer of plaintiff injured while making repairs on the building.]

The Meche decision has further application to the instant case in that the court held that whether the work in which the employee was injured was part of the principal’s business so as to render the principal liable for workmen’s compensation benefits under LSA-R.S. 23:1061 was a question of fact. In the case before us, this question was presented to the jury for determination, with the jury finding that plaintiff was a statutory employee of defendant. After careful review of the record, we find that there was a sufficient evidentiary basis for the jury’s verdict on this issue, and therefore, this finding must be upheld. Canter v. Koehring Company, 283 So.2d 716 (La.S.Ct.1973).

Plaintiff-appellant’s next alleged error urged is that, in the alternative, should plaintiff be found to be the statutory employee of defendant under LSA-R.S. 23:1061 as we now so hold, this classification should not confer tort immunity on the statutory employer. On appeal, plaintiff presents two major arguments in favor of his contention.

The first is that LSA-R.S. 23:1061 “. contains absolutely no reference to tort immunity on the part of the principal . .” On its face, this statement is correct. However, LSA-R.S. 23:1061 does state, in pertinent part, the following:

“. . . [w]here . . . proceedings are taken against, the principal, then in the application of this Chapter reference to the principal shall be substituted for reference to the employer . . . .”

Section 1032 of Title 23, Chapter 10 (The Workmen’s Compensation Act, as amended), makes the rights and remedies granted the employee by the Workmen’s Compensation Act the exclusive rights and remedies he has against his employer; therefore, since in the instant suit a proceeding has been instituted against a party found to be a “principal” under section 1061, and since the above cited provision of section 1061 mandates substitution of “principal” for “employer”, section 1032 would apply to limit plaintiff to an action in workmen’s compensation against the defendant Romero.

The second argument advanced by plaintiff on appeal is that this court should not follow the Louisiana Supreme Court holding in Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972), wherein the majority held that under section 1061, a defendant found to be a “statutory employer” was granted tort immunity from a party found to be a “statutory employee”. Plaintiff appears to be urging that we follow the concurring opinions of Justices Bar-ham and Tate, who both labeled this holding by the majority as dictum.

However, this entire argument by plaintiff-appellant as to whether or not the above discussed holding in the Broussard v. Heebe’s Bakery, Inc. case was dictum is without merit since the clearly established and following jurisprudential rule in Louisiana is that tort immunity is granted to a party found to be a “statutory employer”. Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852 (1950); Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (1951); Coal Operators Casualty Co. v. Fidelity and Casualty Co., 223 La. 794, 66 So.2d 852 (1953).

Furthermore, while Broussard v. Heebe’s Bakery is the most recent Louisiana Supreme Court pronouncement on this issue, the subsequent Louisiana Courts of Appeal decisions have followed the established line of jurisprudence, Brown v. Kaiser Aluminum and Chemical Corporation, 289 So.2d 524 (La.App. 1st Cir. 1973), Writ application not considered, 293 So.2d 171 (La.S.Ct.1974); Kirkland v. Western Electric Company, Inc., 296 So.2d 350 (La.App. 4th Cir. 1974), Writ application not considered, 302 So.2d 19 (La.S.Ct.1974), and, at least in one instance, the Supreme Court has had the opportunity to reconsider its position, but has declined to do so. Wayne v. Olinkraft, Inc., 293 So.2d 896 (La.App. 2nd Cir. 1974), Writ denied, 294 So.2d 827 (La.S.Ct.1974).

The final issue to be considered, presented by the intervenor in the alternative, is whether the jury erred in finding that plaintiff was the “statutory employee” of defendant as opposed to being the “borrowed employee” of defendant. The jury, after having been duly charged as to the law by the trial judge, was presented with a list of six interrogatories, the first two of which, and pertinent instructions, are reproduced as follows:

VERDICT
INTERROGATORY NO. 1
Do you find that Price Felton Jones was the statutory employee of Francis Romero, Incorporated, at the time of the accident?
Answer “Yes” or “No”
Answer: (Answered “Yes” by the jury.)
INTERROGATORY NO. 2
Was Price Felton Jones the borrowed employee of Francis Romero, Incorporated, at the time of the accident?
Answer “Yes” or “No”
Answer: (Answered “No” by the jury.)
If you answered either Interrogatory No. 1 or 2 “Yes”, you need go no further with your deliberations. Your foreman should sign your verdict at the space provided on the last page and you will return this finding in Open Court.
If you have answered Interrogatories 1 and 2 “No”, then answer the following issues or such of them as may be necessary .

As is indicated by the above quoted excerpt from the verdict, the jury was given the opportunity to decide whether plaintiff was a statutory employee, a borrowed employee, or neither of the two.

Intervenor does not argue that the definition of a borrowed employee as given by the trial judge in his charge was incorrect, and rightfully so, for after reviewing the definition we have found no error. Nor are we able to find that the jury committed manifest error in its determination that plaintiff was not the borrowed employee of defendant Romero.

While it is true that the distinction between a borrowed employee and a statutory employee is often difficult to determine, the distinction was made by the finder of fact, upon an adequate evidentiary basis, and this court will not disturb that finding.

For the reasons assigned, the judgment of the lower court is affirmed, with costs of this appeal to be shared equally by plaintiff-appellant, and intervenor-appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    ARBMAHLA HIGH CORPORATION v. NORTH AMERICAN CO. for Property and Casualty Insurance.
    No. 6110.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Timothy J. McNamara, Lafayette, for defendant-relator.
    J. Minos Simon, Lafayette, Sandoz, San-doz & Schiff by Leslie J. Schiff, Opelousas, for plaintiff-respondent.

      Before GUIDRY, FORET and ROGERS, JJ.
   GUIDRY, Judge.

This case is before us as a result of our having granted the defendant-appellee’s application for supervisory writs. .

The pertinent facts, succinctly stated, are as follows: On August 20, 1975, the plaintiff instituted a suit in contract on a life insurance policy, issued by the defendant, for the death of a stallion at stud, Arbmah-la High. The defendant’s answer was filed on September 23, 1975. On December 5, 1975, the plaintiff filed an amended petition, and the defendant filed an amended answer thereto on December 9, 1975. On December 29, 1975, the defendant filed an opposition to the pre-trial order, which was the last pleading filed in this matter prior to February 11, 1977, on which date the defendant filed a motion for leave of court in which to file a second amended answer, which answer included a request for a trial by jury.

The plaintiff immediately filed a Motion to Strike, seeking to strike paragraphs 12 and 13 of the defendant’s second amended answer, and also opposing the defendant’s request for a trial by jury.

Pertinent to our consideration here are paragraph 5 of the defendant’s original answer, and paragraphs 12 and 13 of the defendant’s second amended answer, which are set out as follows:

“5.
“The allegations of paragraph 5 of the petition are denied except that it is admitted that a policy of insurance was at one time issued by North American Company for Property and Casualty Insurance, but said policy is, being a written instrument, the best evidence of its own contents and is subject to all the terms, conditions, exclusions, limitations and provisions therein set forth, all of which is specially pled herein as fully as if copies in extenso, including the requirement of payment of premium, of which strict proof is demanded.”

Article 12 of the Amending Answer asserts:

“That the death of the stallion ‘Arbmahla High’ was caused directly or indirectly by the carelessness and neglect of the insured, its agents and employees in the maintenance of the animal prior to the onset of its terminal illness or the occurrence of the terminal injury and, further, with respect to the care or lack thereof including proper veterinary treatment given the animal between the onset of its terminal illness and/or injury and death, as well as not having the animal under daily care and supervision, all of which serves to bar the recovery herein under the terms and provisions of the policy sued upon.”

Article 13 of the Amending Answer asserts:

“That further, in the alternative, upon the onset of the terminal injury and/or illness of this stallion, Arbmahla High, plaintiff failed to at once secure the services of a licensed veterinarian and give proper care to the animal and use every means to save its life and further failed to at once give notice of such sickness or injury by telephone to the company, but instead waited a week before doing so at a time when it was too late for defendant to intervene and save the life of the animal, and that said breach of the obligations of plaintiff to furnish proper notice of sickness or injury at once and to furnish veterinary ■ care at once, and to use every possible means to save the life of the animal further serves to bar recovery herein.”

The two motions were set for hearing instanter, and after the hearing the trial court issued written reasons denying the defendant’s request to file its second amended answer and request for a trial by jury, holding that the amended answer added nothing new to the pleadings, and was filed solely for the purpose of circumventing LSA-C.C.P. art. 1732, to permit the defendant to move for a trial by jury, which it was precluded, by right, from doing.

The statutory law applicable to a determination of the issue presented is contained in LSA-C.C.P. art. 1151 and art. 1732, which reads as follows:

Art. 1151.

“A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.
“A defendant shall plead in response to an amended petition within the time remaining for pleading to the original petition, whichever period is longer, unless the time is extended under Article 1001.”

Art. 1732.

“A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.”

After studying the record and pleadings filed (writs were granted on briefs only) in view of the above quoted statutes, we are unable to conclude that the trial court abused its much discretion in holding that the defendant’s second amended answer added nothing new to the pleadings and was filed solely for the purpose of circumventing the provisions of LSA-C.C.P. art. 1732.

We distinguish the case of Barberito v. Green, 275 So.2d 407 (La.1973), cited by the relator, there the trial court had permitted the plaintiff to file an amended petition, and the plaintiffs motion for a trial by jury was field within 10 days of the last pleading directed to a triable issue, which was the defendant’s amended answer.

For the reasons assigned, the writs are recalled, and the judgment of the trial court is made absolute.

WRITS RECALLED.


author: WATSON, Judge.

text:
    Dudley ROLLINS and Doris Rollins, Plaintiffs-Appellants, v. MELTON TRUCK LINES et al., Defendants-Appellees.
    No. 6128.
    Court of Appeal of Louisiana, First Circuit.
    May 13, 1977.
    Guillory, McGee & Mayeux by A. Frank McGee, Eunice, for plaintiff-appellant.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   WATSON, Judge.

MOTION TO DISMISS AND/OR MOTION TO REMAND

The defendant-appellee, Melton Truck Lines, moves to dismiss the unlodged appeal of the plaintiffs-appellants, Dudley Rollins and Doris Rollins, on the grounds that the plaintiffs’ appeal was not perfected in accord with LSA-C.C.P. art. 5183. In the alternative, the defendant-appellee moves to have the plaintiffs’ appeal remanded to the trial court so that he can traverse the plaintiffs’ right to proceed with his appeal in forma pauperis. No opposition has been filed.

The pertinent facts are as follows: the plaintiffs timely moved for and were granted an appeal to this court in forma pauper-is. However, the plaintiffs failed to attach to their motion for an appeal in forma pauperis the affidavit of a third person stating that, “he knows the applicant, knows his financial condition, and believes that he is unable to pay the cost of court in advance, or as they accrue, or to furnish security therefor,” as required by LSA-C. C.P. art. 5183. .

The defendant argues that because the plaintiffs failed to affix the affidavit of a third party, as required by art. 5183, the plaintiffs have failed to perfect their appeal, and hence their appeal should be dismissed. We disagree.

This court has held on several occasions that the statutes authorizing the litigation of certain cases in forma pauperis (LSA-C. C.P. arts. 5181, et seq.) should be interpreted liberally in favor of giving indigent persons their day in court. Roy v. Gulf States Utilities Co., 307 So.2d 758 (La.App. 3rd Cir. 1975), and cases cited therein. The Roy case holds that the plaintiffs’ failure to affix the proper affidavit constitutes a relative nullity, which can be ratified or confirmed by the trial court after the required affidavit is supplied.

Therefore, in the interest of justice, the appeal is remanded, and the plaintiffs are given ten (10) days from the receipt of this judgment in which to file with the trial court the proper affidavit, or suffer the dismissal of their appeal.

e agree, however, that defendant should be afforded an opportunity to contest the right of the plaintiffs to proceed in forma pauperis, and therefore, this appeal is also being remanded to afford the defendant the right to traverse the plaintiffs’ affidavit of poverty. The defendant is hereby given seven (7) days from the date that the plaintiffs file their affidavit in which to file a Motion to Traverse with the trial court.

For the reasons assigned the plaintiffs’ appeal is hereby remanded.

APPEAL REMANDED.


author: HEARD, Judge.

text:
    John B. WILLIAMS, Sr., Plaintiff-Appellant, v. J. Lenwood INABNETT and Commercial Union Assurance Company, Defendant-Appellee.
    No. 5868.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.

      Gahagan & Gahagan by R. E. Gahagan, Natchitoches, for plaintiff-appellant.
    Joe M. Inabnett, New Orleans, Thomas & Dunahoe by G. F. Thomas, Jr., Cook, Clark, Egan, Yancey & King by Steven H. Beadles, Shreveport, for defendant-appellee.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

This suit was instituted by the plaintiff, John B. Williams, Sr., against J. Lenwood Inabnett and his insurer, for damages sustained by the plaintiff when his three quarter ton pickup truck was struck while making a left turn off Highway 71 in Natchi-toches Parish by a 1974 Lincoln automobile being driven by the defendant, J. Lenwood Inabnett. At the time of the accident, the truck was also occupied by two minors, namely Stan Nash and Lonnie Houston. Nash and Houston filed separate suits against Inabnett and his insurer, Commercial Union Assurance Company. The defendants answered the petitions denying negligence, and pleading alternatively contributory negligence as to Williams. In the suits by Nash and Houston, the defendants made a third-party demand against Williams for contribution. Inabnett reconvened against Williams and his insurer, Dixie Automobile Insurance Company for damages. The cases were consolidated for trial and tried on their merits in the Tenth Judicial District Court.

The trial court in a well written opinion held that both Inabnett and Williams were concurrently guilty of negligence in causing the accident. Judgment was rendered in favor of Nash for general and special damages in the amount of $1,290.00 and in favor of Lonnie Houston for general and special damages in the amount of $1,176.00 against the defendants, J. Lenwood Inab-nett and his insurer, Commercial Union Assurance Company. The demand of John B. Williams, Sr. against the defendants were rejected and the reconventional demand of Inabnett against Williams was rejected. The third-party demands against Williams and Dixie Automobile Insurance Company were also rejected. Only Williams has appealed. He asserts that the issues to be determined are: (1) Was Inabnett guilty of negligence; (2) if so, was Williams guilty of contributory negligence; and (3) if so, did Inabnett have the last clear chance to avoid the accident.

In his reasons for judgment the trial court very accurately sets forth the facts of the accident which we take the liberty of quoting.

“This accident happened in Natchitoches Parish, on Louisiana Highway 71, on the afternoon of Tuesday, October 14, 1975, at approximately 3:00 o’clock P.M. The highway at this point was straight and the weather was fair and clear. All vehicles involved in this collision were traveling in the same direction, which was northerly.

“John B. Williams, Sr., age 63, as of the date of the accident, was the owner and driver of a three quarter ton Chevrolet pickup truck, being used to haul bales of hay. Williams had entered Louisiana Highway 71 at a point about 1.6 miles south of the accident scene. His truck was not loaded, as the driver and the two young boys accompanying him, namely Stan Nash and Lonnie Houston, both 16 years of age, were returning from delivering a load of hay with the intent to reload the truck to deliver a “final” load of hay. The area on both sides of the highway at the scene of the accident is rural farming land.

“Williams had been obtaining the hay from the farm adjacent to the highway. As he approached the private entrance to the farm, Williams began to decrease his speed from 30 miles per hour to about 5 miles per hour.

“The traffic on Highway 71 on this date had been materially increased due to the temporary closing of Highway 84 from Clarence to Winnfield, and such traffic was detoured over this portion of the highway.

“As Williams began to slow down his truck, several cars came up behind so there were at least three vehicles following Williams as he prepared to make his left turn from the highway. Immediately behind Williams was a Volkswagen, another car, and then a large F-600 Ford Truck driven by a Jack Collins. Williams put on his left blinker lights, and having seen through his rearview mirror the several cars lined up behind him, began his left turn maneuver. This left turn by Williams was a gradual drifting to the left and not an abrupt turn.

“At approximately the same time Williams began his slow left turn, J. Lenwood Inabnett, age 68 at the date of the accident, was driving his 1974 Lincoln automobile. Inabnett came up behind the four vehicles and seeing no on-coming cars from the north began a passing maneuver by entering the left lane and speeding up the car to pass the slower vehicle.

“One Jeff Burch, driver of the ear immediately behind Williams’ truck, stated he thought he would pass the truck but on looking in his rearview mirror, saw the approaching Lincoln. He estimated the Lincoln speed at the scene at 65 to 75 miles per hour. At the trial he lowered the speed at 55 miles per hour. Burch stated Williams had begun his turning when he saw the Lincoln car enter the passing lane.

“The third vehicle behind the Williams truck was a large F-600 Ford truck being driven by the witness Jack Collins. Collins’ seat in the eab of this truck was at such an elevation that he was able to see the Williams truck in front and by means of his rearview mirror was able to observe the oncoming of the Inabnett car. Collins gives a graphic narrative of an onlooking person seeing the developments of a succession of events that resulted in the accident but being unable to prevent same. Collins stated he saw the Lincoln car in his rearview mirror coming down the road and its movement into the passing lane, at the same time Collins saw the Williams truck turning to its left. He was so alerted to the oncoming possible collision that he automatically turned on his flashing lights on his truck and remarked to his passenger, “watch this.” He gave his estimate that the Lincoln was within 100 yards of his truck when this action was taken by him.

“The Williams truck had reached the position that its front wheels were off the blacktop portion of the left lane at an angle to the right. The Inabnett car struck this truck with the front of the car on the left rear corner of the truck. This caused the truck to spin to its right.

“This accident resulted in damages to the Williams truck; the Inabnett car; and physical injury to John B. Williams, Sr., Stan Nash and Lonnie Houston.”

The first issue asserted by plaintiff-appellant is “Was Inabnett guilty of negligence?”

The trial court found that Inabnett was driving at an excessive rate of speed under the circumstances. Trooper J. T. Chambers found 75 feet of skid marks made by the Lincoln automobile prior to the collision. He estimated that Inabnett was traveling at approximately 55 miles per hour prior to the braking action. Burch testified at one time the Lincoln was traveling between 65 and 70 miles per hour. At the time of trial, he testified 55 miles per hour. Burch and Collins both were aware of the actions of Williams and Inabnett and presumed that there would be an accident. The trial court further stated that there was no reason why Inabnett should not have been so alerted and taken some remedial action to prevent the accident. Inab-nett did not deny seeing the blinking lights on the Williams truck or the flashing caution lights on the Collins truck. He did not reduce his speed until it became too late to avoid the collision. We conclude as did the trial court that Inabnett was guilty of negligence which contributed to the accident.

The next question posed by plaintiff is “Was Williams guilty of contributory negligence?” The testimony is clear as stated by the trial court that Williams made a left turn into a private driveway in a rural area. He knew there were several cars behind him. He saw them in his rear-view mirror. He turned on his blinker light to make a left turn, did not look to his rear except through his rearview mirror. He never saw the Inabnett car until immediately prior to the collision.

The duties of care imposed upon one who would turn left from a highway into a private drive is set forth in LSA-R.S. 32:104 as follows:

“104. Turning movements and required signals.
A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.
B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.
C. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal. Acts 1962, No. 310, ¶ 1; Acts 1963, No. 33, ¶ 2.”

In the case of Bamburg v. Nelson, 313 So.2d 872, 874 (La.App. 2 Cir. 1975), the court stated:

“Although the driver making a left turn is not deemed ipso facto negligent, the cases which characterize the maneuver as dangerous and setting forth the duty of the left turning vehicle are numerous. The duty of the left turning motorist is two-fold, the first being to give a proper signal and secondly to make proper observation that the turn can be made without endangering an oncoming or overtaking vehicle. See Lewis v. Liberty Mutual Insurance Company, 215 So.2d 138 (La.App. 3 Cir. 1968). A left turner must not only give an adequate signal of his intention but also make adequate observation to his rear to ascertain that the turn can be safely made. Ardoin v. Chachere, 207 So.2d 574 (La.App. 3 Cir. 1968).”

See also Star Dusters, Inc. v. Lee, 311 So.2d 566, 568 (La.App. 3 Cir. 1975).

We conclude as did the trial court that Williams did turn on his blinker light signifying his left turn but failed to maintain observation to his rear as required by law, contributing to the accident.

Plaintiff lastly poses the question “Did Inabnett have the last clear chance to avoid the accident?”

For the doctrine of last clear chance or discovered peril to apply, Inabnett must have discovered Williams in a position of peril at a time when Inabnett could have taken some action to avoid the accident.

The evidence is clear that after Inabnett entered the passing zone with the several cars in front of him and discovered Williams in his left turn maneuver, there was nothing that he could have done to avoid the accident except apply his brakes, which he did, leaving 75 feet of skid marks.

We conclude that the doctrine of last clear chance has no application in this case.

For the foregoing reasons the judgment of the trial court is affirmed. Costs of appeal to be paid by plaintiff-appellant.

AFFIRMED.


text:
    Rene ALLEMOND, Sr., et ux., Plaintiffs-Appellants, v. Sam GUIDRY et al., Defendants-Appellees.
    No. 5890.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.

      Dwight D. Reed, Taylor & Trosclair, by Frank P. Trosclair, Jr., Opelousas, for plaintiff-appellant.
    Jack N. Huval and John P. Hill, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

Plaintiff, Rene Allemond, Sr., in his capacity of Administrator of the estate of his minor child, Emily Allemond, took a devolu-tive appeal from the trial court judgment rejecting plaintiff’s allegations of negligence against defendants, Sam Guidry, Edward “Dagwood” Frederick, and Clarence Marcel, and the Town of Arnaudville.

The original suit was also brought by Rene Allemond, individually. However, when it was established that he could not proceed in forma pauperis, on joint motion of counsel for all parties, this matter was dismissed as to Rene Allemond, individually-

Plaintiff contends that defendants, Police Chief Sam Guidry, Edward “Dagwood” Frederick and Clarence Marcel, all policemen of the Town of Arnaudville, acted negligently in the performance of their duty by making a false arrest on Rene Allemond, Sr., and others, by the use of mace in making the arrest, thereby causing injuries to his five month old child, Emily Allemond, on June 22, 1974. It was also alleged that the child suffered bronchitis and conjunctivitis as a result of the spraying of the mace by the police officers.

The facts leading up to the incident in question appear to be an alleged attempt assault by one Leonard Guidry, on one of the plaintiff’s daughters. The plaintiff and his witnesses testified that after the alleged assault, Leonard Guidry was supposedly seen on the roof of plaintiff’s house, which precipitated the call to the Arnaudville police department for assistance. Upon arriving at the Allemond home, the police found a lively party in progress; however, upon being advised about the complaint against Leonard Guidry, it was discovered that Leonard Guidry was out of town. The plaintiff and his witnesses, who were guests at his party, were apparently dissatisfied with the help of the police officers and because of the police officer’s insistence in arresting plaintiffs daughter, proceeded to abuse and insult the officers which culminated in some arrests.

The record shows the testimony of the plaintiff and his guests to have many contradictions, exaggerations and inconsistencies.

There was testimony on behalf of plaintiff that the policemen entered the house and one deliberately sprayed mace on the five month old child. The trial judge refused to believe this testimony and so do we.

The record also reveals that the police officers were threatened with bodily harm and were informed by the plaintiff’s son, Rene Allemond, Jr., that he had a shotgun and that he would use it on the officers. The police further testified that mace was used only on one occasion on the plaintiff’s son, Rene Allemond, Jr., and that this took place outside the home, a good distance from where the child was kept. There was also evidence that some drinking of alcoholic beverages was taking place.

Dr. George Prather testified that the child, Emily Allemond, probably suffered from bronchitis and conjunctivitis as a result of the contact with mace. The trial court believed that somewhere along the line, the child received “fall out” from the macing of plaintiff’s older son, Rene Alle-mond, Jr., or by coming in contact with someone who had mace on them. He rejected the testimony that one of the officers deliberately held a can of mace within one foot or two of the baby and sprayed her, rather the child’s contact was minimal according to the testimony of Dr. Prather.

We believe the issue here is whether or not the police officers were negligent in performing their duties by using mace in making a legal arrest, whereby a five (5) month old child nearby suffered from the “fall out” or an indirect application of the mace.

We find no manifest error as to the finding of facts by the trial judge, who had the opportunity to observe the demeanor of plaintiff and his witnesses and we are well aware of the weight which must be given to these conclusions given by him.

In determining whether the factual conclusions of the trier of fact are erroneous, the trial judge’s findings should not be disturbed absent some manifest error. In Canter v. Koehring Company, 283 So.2d 716 (La.1973), the Supreme Court set forth the guidelines for appellate review of factual conclusions by the trier of fact. The court held in part as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” (at page 724).

The trial judge gave more credence to the testimony of the police officers and the surrounding evidence, and the plaintiff must prove his case by preponderance of the evidence.

Attention is directed to the case of Jackson v. City of Baton Rouge, 286 So.2d 743 (La.App. 1 Cir. 1973). This case involved an arrest by officers of the City of Baton Rouge, and the use of chemical mace in making the arrest. The evidence was in hopeless conflict as to whether the officers exercised due care, and as to whether unnecessary, unreasonable and excessive force was used in making the arrest. The trial court in resolving the conflict in the testimony held that the plaintiff must prove this case by preponderance of the evidence.

“(1) A plaintiff must establish his cause by a fair preponderance of evidence. Bougon v. Traders & General Insurance Company, 146 So.2d 535 (La.App. 4 Cir. 1962); Taylor v. Firemen’s Insurance Co. of Newark, N. J., 139 So.2d 782 (La.App. 2 Cir. 1962); Dyer v. Stephens Buick Co., 125 So.2d 185 (La.App. 4 Cir. 1960).
“In Parker v. Dixie Moving & Storage, Inc., 157 So.2d 627, 628 (La.App. 2 Cir. 1963), the Court said
“ i* * * -j. may £e 0hServed that the contradictory testimony of the witnesses cannot be reconciled and it follows that plaintiffs’ claim must fail because of a lack of a preponderance of the evidence.’ ” (emphasis added).

In this case, the trial judge also found that the only alternative that the police officers had to the use of chemical mace was the use of his night stick and other more extreme measures in making the arrest.

Another case relied on by defendants is Taylor v. City of Alexandria, 261 So.2d 92 (La.App. 3 Cir. 1972). In this case the police officers were in pursuit of a fleeing motorist in a stolen vehicle. The fleeing motorist collided with an automobile, causing the death of the plaintiff’s 14-year-old son. The plaintiffs contended that the officers were negligent in pursuing the motorist, and that by their use of unnecessary force, the death of the minor son, although caused by the fleeing motorist, was attributable to the officers. This was a Third Circuit Court of Appeal case and the court completely exonerated both the officers and the municipality and found that the pursuing officers did not act in a reckless manner, nor did they use unnecessary force.

For the foregoing reasons, the judgment appealed from is affirmed. Although this suit was brought'by plaintiff in forma pauperis, costs must nevertheless be taxed against him. LSA-C.C.P. art. 5188; Mayer v. Frank J. Reyes and Co., 138 So.2d 642 (La.App. 4 Cir. 1962); Williams v. American Marine Corporation, 212 So.2d 502 (La.App. 4 Cir. 1968).

AFFIRMED.


text:
    COMMERCIAL UNION INSURANCE COMPANY, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5917.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Woodley, Fenet & Ranier by Drew A. Ranier, Lake Charles, for defendants-appellants.
    Brame, Bergstedt & Brame by David A. Fraser, Lake Charles, for plaintiff-appellee.
    Before WATSON, FORET and HEARD, JJ.
   WATSON, Judge.

Commercial Union Insurance Company sued Willie R. Harris and his liability insurer; Travelers Insurance Company, for $6,310 in damages to a tractor-trailer rig, owned by Commercial’s insured, Seventy-Four Quebec, Inc. Commercial is subrogated to the claim which resulted from a collision between its insured’s 1964 White tractor and semi-trailer and Harris’ 1974 Peterbilt tractor and semi-trailer.

The parties stipulated liability on the part of Travelers and Harris. The only issue considered by the trial court was damages. Four experts testified for plaintiff and one additional repair estimate was put into evidence by stipulation. Three experts testified for defendants.

The trial court concluded that:

“. . . the plaintiff’s witnesses had more experience and there is no reason for the Court to believe that their testimony was unrealiable [sic].” (TR. 137)

The trial court awarded $3,110 for the tractor, consisting of $3,360 in repairs, less a $250 deductible; $2,200 for the trailer, consisting of its value of $3,000 less salvage of $550 and a deductible of $250. The total award to plaintiff was $5,310.

The only substantial issue on appeal is whether the trial court abused its discretion in awarding damages. Not only was there no abuse of discretion, but the judgment is in accord with the preponderance of the evidence.

The trial judge has much discretion as to quantum. LSA-C.C. art. 1934. Where experts differ, the trier of fact is entitled to evaluate their testimony and to choose between them. Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3 Cir. 1974) writ denied, La., 303 So.2d 187.

The judgment of the trial court, therefore, is affirmed and costs are taxed against appellants.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Geneva HEWITT et al., Plaintiffs and Appellants, v. Molly H. WATSON et al., Defendants and Appellees.
    No. 5920.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.

      Camp, Carmouche, Palmer, Carwile & Barsh by J. A. Delafield, Lake Charles, for plaintiff-appellant.
    L. E. Hawsey, III, Baton Rouge, Ryder & Deshotels by Errol D. Deshotels, Oberlin, for defendant-appellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   CULPEPPER, Judge.

Plaintiff filed this suit for partition in kind of a tract of land. The court appointed P. N. Fontenot, a civil engineer, to survey the property and prepare a plat as to how the land and improvements could be divided into halfs. Fontenot actually prepared a plat and it is in the record, together with his statement in the sum of $890 for services rendered. However, the district judge later set aside his order appointing this expert. The defendant, Molly Hendrix Watson, filed an answer denying that the property could be divided in kind, and she reconvened praying that the property be partitioned by licitation.

The district judge held that the property could not be divided in kind. Accordingly, judgment was rendered ordering that the property be sold at public sale for the purpose of partition by licitation. From this judgment the plaintiffs appealed.

On appeal, all parties plaintiffs and the parties defendant agree that the judgment ordering the partition must be reversed and set aside because all of the co-owners of the property are not named as parties to the suit. The peremptory exception of nonjoinder of an indispensable party may be noticed by the appellate court on its own motion. LSA-C.C.P. Article 927. Accordingly, judgment must be rendered reversing and setting aside the judgment ordering a partition by licitation, and the case must be remanded to the district court for the joinder of all co-owners of the property as parties and for further proceedings in accordance with law and the views expressed herein.

The sole issue argued on appeal is the assessment of costs. The defendants-appel-lees argue that it is the fault of the appellant in failing to name all co-owners of the property as parties which requires that the judgment appealed be reversed and the case be remanded. Defendant contends that all costs incurred in the district court and in the Court of Appeal to date should be assessed against the plaintiffs. In support of this argument, defendants cite Foster v. Stewart, 161 So.2d 334 (La.App. 1st Cir. 1964) where a partner sued to enjoin a lessor from violating the terms of a lease, and he failed to name the partnership as a party. The court held that since it was the fault of the plaintiff in failing to name the partnership as a party which required that the judgment be reversed and the case remanded, all costs, including expert witness fees, incurred in the proceedings to date of the decision of the reviewing court should be assessed against the plaintiff.

LSA-C.C.P. Article 2164 authorizes the Court of Appeal to “tax the cost of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.” Under this article, each case must be considered on its own facts in determining the assessment of costs. In Foster v. Stewart, supra, the court determined that under the facts of that case the plaintiff who was at fault for not joining an indispensable party should pay all costs to date. However, under the facts of the present case we reach a different conclusion for the following reasons.

In the present case the assessment of all costs incurred in the district court to the date of the judgment appealed, as well as those costs which will be incurred after this case is remanded to the district court, should be determined by the trial judge in his discretion. It may be that after this case is remanded to the district court the trial judge will find that the costs incurred in determining whether the property can be partitioned in kind, particularly the charge of $890 by the expert civil engineer, Mr. Paul N. Fontenot, should be borne proportionately by the owners, since that evidence may be useful in determining the issue of divisibility in kind. We should not at this time prejudge the assessment of costs, which the trial judge, in his discretion, may finally determine is equitable and proper under all of the circumstances after this case has been remanded and finally decided in the district court.

As to costs of this appeal, we think this should be borne by the parties in the proportion of one-half by the appellants and one-half by the appellees.

For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the district court for the joinder of all co-owners of the property as indispensable parties to this suit for partition, said parties to be joined within 15 days after this judgment becomes final, or in default thereof, plaintiffs’ suit is to be dismissed at their costs. After the case is remanded, and in the event all co-owners are joined as parties, proceedings may continue in the district court in accordance with law and the views expressed herein, it being specifically directed that each party shall have the right to introduce new admissible evidence on all issues. All costs incurred in the district court to date, as well as the costs incurred there after this case is remanded, shall be determined and assessed by the district judge in his discretion. All costs of this appeal, are assessed one-half against the appellants and one-half against the appellees.

REVERSED AND REMANDED.


text:
    David F. ILES, Plaintiff-Appellant, v. Phillip WHITE and Kalb Television, Defendant-Appellee.
    No. 5923.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.

      Bolen, Halcomb, Bolton & Erwin by Gregory S. Erwin, Stafford, Randow, O’Neal & Smith by Grove Stafford, Jr., Alexandria, for defendant-appellee.
    P. Spencer Torry and Steve Young, Alexandria, for plaintiff-appellant.
    Before WATSON, FORET and HEARD, JJ.
   HEARD, Judge.

Plaintiff-appellant, David F. lies, filed a suit for defamation on August 25, 1976, naming as defendants, Phillip White and KALB Television. On September 16 and September 9,1976, respectively, the defendants filed answers denying any liability.

On September 21, 1976, the defendant, Phillip White, caused a rule to be issued ordering the plaintiff to show cause why he should not be required to post bond for costs and attorney’s fees under the provisions of LSA-R.S. 42:261(E). At the conclusion of the hearing on the above rule on October 25, 1976, the trial court rendered a judgment, holding that the defendant Phillip White was a public official within the purview and protection of LSA-R.S. 42:261, and ordered the plaintiff to post bond in the sum of $2,250.00 for costs and attorney’s fees. Plaintiff appealed.

The sole issue before this court is simply whether plaintiff David lies must furnish bond for costs and attorney’s fees to Phillip White, defendant in this lawsuit.

MOTION TO DISMISS

After plaintiff-appellant’s appeal was lodged, the defendant-appellee timely filed a motion with this court to dismiss the appeal of the plaintiff-appellant.

In his motion to dismiss, the defendant-appellee alleges three main grounds for dismissal: (1) that the judgment appealed from is a non-appealable interlocutory judgment, (2) that the plaintiff-appellant failed to timely pay the Clerk of the trial court within 20 days from the date of his order of appeal the estimated costs of the appeal as required by LSA-C.C.P. Art. 2126 and LSA-R.S. 13:4445, and (3) that since the plaintiff’s motion for an appeal was not filed until after the 15 day period provided by the trial court judgment of November 2, 1976, in which the plaintiff was ordered to post a bond for costs and attorney’s fees, the trial court was not empowered in view of LSA-R.S. 42:261(E) to sign an order of appeal in this case.

In answer to the defendant’s first contention that the judgment appealed from is a non-appealable interlocutory judgment we hold, that though the judgment appealed from is interlocutory it is one which will cause irreparable injury and therefore appealable. LSA-C.C.P. Art. 2083; Romero v. Romero, 232 So.2d 572 (La.App. 3 Cir. 1970); Carter v. Phillips, 325 So.2d 337 (La.App. 3 Cir. 1975), La., 337 So.2d 187, 1976; Allen v. Rosenthal (La.App. 3 Cir. 1976), writ denied, 339 So.2d 15, La., 1976. While it is noted that the above case dealt with writ applications, the principle of irreparable injury is nevertheless the same.

In response to the defendant’s second contention, while true the plaintiff was six days late in paying the required estimated costs of the appeal as required by LSA-C.C.P. art. 2126 and LSA-R.S. 13:4445, both this court and our Supreme Court have held that once the appeals have been timely lodged in the appellate court, the non-payment of the cost and fees required by LSA-C.C.P. art. 2126 and LSA-R.S. 13:4445, is no longer fatal to the appeal. Howard v. Hardware Mutual Co., 286 So.2d 334, La.1973; Succession of Nunez ex rel First National Bank of Abbeville v. Picket, 335 So.2d 778 (La.App. 3 Cir. 1976), and Halcomb v. Halcomb, 343 So.2d 1183 (La.App. 3 Cir. 1977).

In support of his third argument the defendant White quotes, in pertinent part, the provisions of LSA-R.S. 42:261(E) as follows:

“The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for cost, to cover such attorney fees before proceeding with the trial of said cause." (Emphasis added by defendant.)

The defendant argues that the intent of the above quoted statute must be to stay all proceedings until the defendant is sufficiently protected by the posting of the bond, and that since the plaintiff did not move for his appeal until after the 15 day period in which he was ordered to post a bond for costs and attorney’s fees, the trial court could not sign an order of appeal.

We find no merit in this contention. The statute merely stays all proceedings in the trial of the cause, and does not forbid the court from signing an order of appeal.

The motion to dismiss is denied.

ON THE MERITS

The plaintiff-appellant contends that the trial court erred in finding the defendant-appellee, Phillip White, a high school principal, to be a public official under LSA-R.S. 42:261(E). Alternatively, plaintiff contends that if the defendant is found to be a public official under LSA-R.S. 42:261(E), the trial court erred when it found that he was acting within the scope of'' his" duties* of office when he made the statement which gave rise to this suit.

The testimony adduced on the trial of the rule to show cause is not included in the record on appeal, nor does the record contain either a narrative of facts agreed on between the parties or one made by the trial court in accordance with the provisions of LSA-C.C.P. arts. 2130-2131. The determination of whether the defendant is a public official for the purpose of LSA-R.S. 42:261(E) is a factual question. Where there are factual issues involved and the record on appeal contains neither a transcript of the testimony nor a narrative of facts, there is nothing for the appellate court to review. There being no evidence to review, it is presumed that the judgment of the trial court is supported by sufficient competent evidence, and should be affirmed. Succession of Walker, 288 So.2d 328 (La.1974); Hutcherson v. Welch, 316 So.2d 144 (La.App. 2 Cir. 1975); Otis v. Otis, 341 So.2d 84 (La.App. 3 Cir. 1976).

For the reasons assigned, the judgment of the trial court is hereby affirmed. Costs are to be assessed against plaintiff-appellant.

AFFIRMED.


text:
    Loleta Lord BARBER, Plaintiff-Appellee, v. ST. FRANCIS CABRINI HOSPITAL, INC., et al., Defendants-Appellants.
    No. 5925.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.

      Provosty & Sadler by Ledoux R. Prov-osty, Jr., Alexandria, for defendant-appellant.
    Gist, Methvin & Trimble by Dorwan G. Vizzier, Alexandria, for. defendant-appellant St. Francis Cabrini Hospital, Inc.
    David A. Sheffield, Alexandria, for plaintiff-appellee.
    Before WATSON, FORET and HEARD, JJ.
   WATSON, Judge.

Plaintiff, Loleta Lord Barber, filed suit against defendants, Dr. Louis A. Cayer and St. Francis Cabrini Hospital, Inc., to recover damages for a burn she received while undergoing surgery on her hip. A jury voted 11-1 to award Ms. Barber $25,000 and she was given judgment for this amount against the hospital and the co-administrators of the estate of Dr. Cayer, Henry C. Taylor and Patricia J. Von-Dameck. Dr. Cayer’s medical malpractice insurer is St. Paul Fire & Marine Insurance Company and the hospital’s is Argonaut Insurance Company, but judgment was not rendered against the insurers. New trial and remit-titur were denied. The trial court stated in its reasons that the jury was correct in finding both the doctor and the hospital employees at fault and guilty of independent negligence. As to the amount, it was “high” but did not shock “the judicial conscience”. (TR. 61) The doctor’s estate and the hospital have appealed from the judgment.

Ms. Barber was burned while under anesthesia when her leg came in contact with an x-ray machine. The hospital says its employees were not at fault, and Dr. Cayer’s attorney says he was not at fault. Both contend that the award of damages is excessive.

The hospital also alleges that the trial court erred in not allowing evidence of jury misconduct. This consisted of the proffered testimony of one juror, Mrs. James Foster, to the effect that written notes were relied on during the jury’s deliberations. The pertinent article of the Code of Civil Procedure, LSA-C.C.P. art. 1794, is substantially similar to the prohibition in the Code of Criminal Procedure, LSA-C. Cr.P. art. 793, and the trial court relied on the criminal case of State v. Ledet, 298 So.2d 761 (La., 1974), which held that use of notes is not per se prejudicial nor such gross misconduct as to nullify a jury verdict. The trial court correctly refused to allow the testimony as a matter of public policy, which encourages free interchange in the jury room and discourages jurors from impeaching their verdicts in violation of LSA-R.S. 15:470.

The facts, as they relate to the issue of liability on the part of the hospital and Dr. Cayer are as follows:

Ms. Barber injured her left hip in a fall, at the age of 68, and was admitted to Cabrini Hospital on August 26, 1973 for surgery which was performed on August 28 by Dr. Cayer.

Dr. Cayer died before trial. His operative report states in pertinent part:

“Upon uncovering the patient after the surgical wound was closed and a dressing applied, it was evident that when moving the patient’s leg medially toward the X-ray machine, the patient’s leg had touched the X-ray machine box which had the light still on and the patient sustained a second and possibly a third degree burn of the left lower extremity.” (C-l).

The circumstances under which Ms. Barber was injured were established by the testimony of Dr. T. E. Banks, who assisted Dr. Cayer, and Ms. Mary Ann Goss Reed, then a student x-ray technician. The x-ray machine used was under the sole control of two student technicians, Mary Ann Goss Reed and Ellen Baudin. The switch on the collimator or light box, which is a focus or guide for the x-rays, was left taped in an “on” position which caused the collimator to overheat. Ms. Reed testified that this was done at the direction of Dr. Banks. However, Dr. Banks attributed the taping to a misunderstanding with inexperienced technicians. Dr. Banks testified that this was an improper procedure; that there was no reason to tape the switch in the “on” position; and that the main power source should have been used to control the machine. Dr. Banks said the automatic cut-off on the collimator is a safety device which protects against excessive heat. It turns off the light after 15 seconds, but Ms. Reed testified the light remained on as long as five minutes during Ms. Barber’s surgery. The taping prevented the operation of the safety device.

Dr. Banks said it is customary for the surgeon in a hip nailing procedure to be very careful that the uninvolved leg does not touch the x-ray machine and receive an electrical shock. It follows that it would also be standard procedure to avoid touching the leg subject to the operation against the machine. Ms. Reed said that the operating surgeon is solely responsible for the movement of the subject leg, which is in traction. According to Ms. Reed, Dr. Cay-er’s reference in his operating report to moving the leg medially would involve his releasing the traction. Dr. Banks said Ms. Barber’s burn was more apt to be a contact than an electrical burn.

Dr. Banks, Ms. Reed and W. F. Terrell, a licensed x-ray technologist at Cabrini Hospital, all testified that they had never known of another patient being burned in this manner. Terrell did not reach the operating room until shortly before Ms. Barber’s operation was completed and was called in because of a complaint that the collimator was extra warm. Terrell confirmed that the collimator switch was taped. |

The hospital had the x-ray machine under the unsupervised control of two student technicians. These student technicians, Ms. Reed and Ms. Baudin, taped the collimator switch in the “on” position, either because of Dr. Banks’ instructions .or because of a misunderstanding, thereby allowing the collimator light to overheat and create a dangerous condition adjacent to the field of surgery. Taping the switch in the “on” position prevented the safety mechanism or cut-off from operating. Had it done so, Ms. Barber would not have been burned. However, she would also have escaped injury if Dr. Cayer had not manipulated her leg into contact with the x-ray machine. The hospital employees’ conduct and that of Dr. Cayer were both causes in fact of Ms. Barber’s injury.

The injury which Ms. Barber received was not an ordinary risk of major surgery and could have been prevented by the exercise of proper care. Both the hospital and the doctor were under a duty to guard the unconscious Ms. Barber against being burned by contact with the overheated x-ray machine. This is pointed up by the fact that none of the witnesses knew of another instance of such a burn in their extensive experience. The hospital was negligent in failing to properly supervise its student technicians; these technicians were negligent in allowing the collimator to overheat; and Dr. Cayer was negligent in manipulating Ms. Barber’s leg into contact with the x-ray machine.

The facts as they relate to the quantum awarded are as follows:

When Ms. Barber awoke from the anesthesia, Dr. Cayer told her she had been burned by the x-ray unit, because the light was left on. The hip gave Ms. Barber no post-operative trouble but the burn caused “a pulsating ache” (TR. 75) that almost induced nausea, as well as a muscle grabbing sensation, similar to a charley horse. The burn was still bothering Ms. Barber on the day of trial, when she was 72 years old. The burn had been treated by frequent washings wijh peroxide. Ms. Barber exhibited the scar on her left inner thigh to the jury, stating it was much smaller than it had been three years before when she received it. Ms. Barber is herself a registered nurse. Her only income is from social security. She testified that the burn causes her embarrassment when swimming and wearing shorts in the summertime.

Ms. Barber remained in the hospital from August 26 until September 21, 1973, and was subsequently hospitalized because of her hip from October 10, until November 11,1973, and from February 28, until March 4, 1974.

Dr. Palmer J. Texada, a board qualified general surgeon, testified that he examined the scar on the “anterior medial aspect of the left thigh” (TR. 110) in April of 1975. It was described as triangular, measuring 1%" by 28/4" by 2". The skin in the area is discolored, inelastic, worn out, hairless and thin, but had healed satisfactorily; a skin graft would not create much cosmetic improvement. Dr. Texada found no atrophy of the leg; no underlying damage to the muscles; and no functional impairment of the leg. Because of Ms. Barber’s age and the risk of further surgery, skin grafting or excision of the atrophic scar was not indicated. Dr. Texada could not determine whether Ms. Barber had a deep second degree burn, a third degree burn or a combination, because both exhibit the same residual scarring. Dr. Texada found Ms. Barber’s complaints of itching and burning in the area consistent with her injury. The inner thigh area is not subjected to a great deal of stress but the skin would be tight and contracted.

Roberta Waters, a trained nurse’s aide employed by Ms. Barber at her home after surgery, gave her general care as a bed patient. She put peroxide on the burn 10 or 12 times a day on oral instructions from Dr. Cayer. Dr. Cayer also prescribed Darvon, Valium and Anacin for pain. Ms. Waters took her patient to Dr. Cayer’s office in Alexandria five times and observed his treatment of the burn with peroxide. She testified that Dr. Cayer shook his head when observing the burn but said nothing further could be done until it healed, when plastic surgery could be performed. The burn was described as swollen and red like raw meat with a white area in the middle from which reddish fluid drained. A scab started forming around the first of February, 1974 which came off 15 days later. The large triangular shaped wound looked infected and swollen and measured about 5" by 4" by 4". Dr. Cayer instructed her not to cover it and to use nothing but peroxide. She massaged the other parts of the leg to relieve Ms. Barber’s pain. Although not present during Ms. Barber’s first two hospitalizations, Ms. Waters said that the wound must have been treated during those periods, and this treatment should be reflected in the hospital records unless someone was derelict in treatment or record keeping. During the third hospitalization, Ms. Waters was with Ms. Barber “day and night” (TR. 144) but did not treat the burn because it was healed. However, Dr. Cayer instructed her to continue with the peroxide treatment four or five times a day after Ms. Barber returned home.

Lois Whatley stayed with Ms. Barber at night and observed Roberta Waters treat the burn with peroxide.

The nurses’ record of the first hospitalization from August 26, through September 21, 1973 (C-l) refers to complaints of pain without reference to the source. Demerol and Tylenol were given. For some unexplained reason, these notes made not a single mention of the severe burn Ms. Barber had just received. On September 16, there is a note of “comp, left leg ache” and on September 17 a note that Tylenol was given for “pain in 1. leg” which is repeated on September 19.

The hospital records of Ms. Barber’s second hospitalization from October 20, through November 5, 1973 (C-2) refer to almost daily complaints of pain and pain medication: Percodan, Darvon, Dalmane and Valium. The nurses’ notes are abbreviated in the customary manner but refer on 10/20/73 to “burn — interior thigh — left leg”; on 10/21 state that Darvon was given for “leg pain and discomfort”; and on 10/28 state “Dressing to burn area intact”. Several notations refer to a dressing on the leg without identifying the area involved. There are also several notations that the patient is depressed, in pain, and/or crying. The complaints of pain, crying and depression are not identified with any particular complaint in the nurses’ records. Ms. Barber was transferred to the Natchitoches Manor Nursing Home from Cabrini Hospital by ambulance on November 5, 1973.

Ms. Mary Merville, who was and is a registered nurse at Cabrini Hospital, remembered Ms. Barber but no treatment of her burn. She testified that the hospital records show no complaints or treatment in reference to a burn following Ms. Barber’s initial surgery. The second admission was not on Ms. Merville’s floor and she was not familiar with that hospitalization. The third hospitalization records show no orders referring to treatment of a burn. Ms. Mer-ville testified that she had never used hydrogen peroxide in treating a burn, but that such treatment would be reflected in the hospital report if given. Ms. Merville did not remember a burn at all in connection with Ms. Barbér although she testified that second and third degree burns are serious injuries. Ms. Merville’s testimony was apparently given little weight by the jury, and we do not find it convincing. It is unreasonable to find no mention of Ms. Barber’s burn during her first hospitalization, unless, as plaintiff contends, mention of the burn was deliberately omitted.

Appellants contend that most of the postoperative pain to which Ms. Barber testified must be attributed to the hip nailing itself. However, Dr. Banks testified that, although hip nailing is major surgery, patients subject to it usually need pain killers for only a week or ten days afterward. Also, because patients subject to this procedure are in great pain before the operation, they often have less pain afterward than before. Dr. Banks said peroxide is generally used for deep wounds rather than superficial burns. Defendant’s expert, Dr. Texada, said he had no reason to question Ms. Barber’s statement that her operation gave her no trouble but the burn did, pointing out that pain is a subjective matter.

It is contended that the award of damages is excessive because Ms. Barber had no loss of wages and does not have a long life expectancy in which to suffer from her injury. However, it is axiomatic that damages cannot be computed with mathematical nicety. The jury apparently believed Ms. Barber’s testimony that she was still suffering pain at the time of trial, three years after the initial surgery. The mere fact of being 72 makes each year of Ms. Barber’s life more precious to her. She is entitled to be free of unnecessary pain during her last years despite the infirmities of age. Compare Molaison v. West Bros. of Thibodaux, 338 So.2d 726 (La.App. 1 Cir. 1976) where an award of $18,000 in general damages to a 72-year-old plaintiff who “suffered a moderate amount of pain”, 338 So.2d 730, was affirmed, despite plaintiff’s request for an increase.

It is also contended that the award resulted solely from the sympathy of 11 women on the jury for the female plaintiff. However, these jurors had an opportunity to view Ms. Barber’s scar and are in a better position than this court to evaluate the disfigurement to Ms. Barber’s person. Pride in appearance is not the sole prerogative of the young. The women on the jury apparently accepted Ms. Barber’s testimony that she still likes to swim and wear shorts while working in her garden during the summer. We cannot conclude that Ms. Barber is incapable of or unsuited to such activities merely because of her age. We find no abuse of the much discretion granted the trier of fact under LSA-C.C. art. 1934. It is significant that the trial judge, who heard all of the evidence, did not grant a remittitur or new trial. Jenkins v. Dixie Rental Tools and Casing Crews, Inc., 283 So.2d 271 (La.App. 1 Cir. 1973); writ denied, La., 285 So.2d 542.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs are assessed against defendants-appellants, the estate of Dr. Louis A. Cayer and St. Francis Cabrini Hospital, Inc.

AFFIRMED.


author: STOKER, Judge.

text:
    Roy FREMIN et al., Plaintiffs and Appellants, v. Allen BEYER et al., Defendants and Appellees.
    No. 5944.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Provost, Ernest & Schwing by James W. Schwing, New Iberia, for plaintiffs-appellants.
    Fredric G. Hayes, Lafayette, for defendants-appellees.
    Before HOOD, CULPEPPER and STOKER, JJ.
   STOKER, Judge.

This is a suit by appellants seeking to revoke a donation of shares of stock in a corporation made to defendants. Alternatively, plaintiffs-appellants seek to have the transfer of the stock rescinded on the ground that the transfer was made on the basis of a commutative contract and defendants-appellees breached the contract by entering into a business in competition with the corporation whose shares were transferred. The trial court denied the relief sought, refusing to revoke the donation or to hold there was a breach of contract. Plaintiff-appellants have appealed from that decision.

Plaintiffs and appellants are Roy Fremin and Dalton Fremin who owned all the shares of F and R Oilfield Contractors, Inc. In 1970 it consisted of a construction business. Claven Frederick and Allen Beyer, defendants and appellants, had been working for another company which was in the tank construction business and which was ceasing operations. Frederick went to work for F and R Oilfield Contractors, Inc. in May of 1970 and Beyer was hired in June of 1970. Frederick and Beyer apparently had “know-how” in tank construction and the Fremins desired to open up and develop a tank division in their corporation, F and R Oilfield Contractors, Inc. An agreement and understanding was reached between the parties. Forty percent of the stock was transferred to Frederick and Beyer and in return they were to organize a tank division, promote and develop it.

In November of 1970 the stock transfer was made and Frederick and Beyer did organize a tank division which soon became a very successful and flourishing aspect of the corporate business. By the end of 1973 mutual distrust or misunderstandings arose. In January of 1974, Frederick and Beyer left F and R Oilfield Contractors, Inc. and organized their own company and went into direct competition with F and R. However, Frederick and Beyer still retain their shares of stock in F and R.

In their brief filed with this Court, the plaintiffs-appellants set forth the following contentions:

The plaintiffs contend that defendants have breached the conditions of the original donation of stock or, in the alternative, have violated the provisions of the commutative contract in that, though they were successful in organizing the tank division, they failed to continue with it as such and actively breached the agreement by going into direct competition and actually soliciting customers of F & R. The plaintiffs contend that there was no consideration for the original transfer of the stock and the defendants introduced no evidence to show any substantial consideration. The plaintiffs contend that though there was no agreement for the re-transfer of the stock in the event the defendants terminated their employment or went into a competitive business, such had to be implied in the agreement and the Court should have construed it as such. ■

The evidence clearly establishes thát Frederick and Beyer did organize a successful tank division and operated it profitably until they left F and R. Why they left is in dispute but it is immaterial. The evidence established, and from the above it may be seen it is admitted, that there was no agreement to retransfer the forty percent share interest to the Fremins in the event Frederick and Beyer left F and R or opened up a competitive business. We are asked to “imply” such an agreement from the facts.

Donations under Article 1523 of the Louisiana Civil Code are listed as being of three kinds, gratuitous, onerous and remunerative. Onerous donation is defined as “that which is burdened with charges imposed on the donee.” Article 1559 provides that donations may be revoked or dissolved on account of certain causes including: (1) the non-fulfillment of the eventual conditions, which suspended their consummation and (2) the non-performance of the conditions imposed upon the donee.

If there was a “charge” or “condition” imposed upon the donees in connection with the donation of stock to defendants-appellees, it is evident that substantial discharge of their obligation was made. If there was a commutative contract, it is evident that some considerable consideration was given. The net effect of the contentions of plaintiffs-appellants is that defendants-appellees were bound for the rest of their lives to remain in the employment of the tank division of C and F and could never lend their efforts to a competing business. Regardless of what the equities may be, there is simply no support for revocation of the stock donation, or alternatively for declaring a breach of contract took place. No consideration is required to be shown for the transfer of corporate shares in Louisiana if the share certificates are properly endorsed as was done in this case. R.S. 12:629. F and R did not exact any agreement from Frederick and Beyer not to enter a competitive business and such agreements are prohibited by law except under limited and specific conditions. R.S. 23:921. We do not see that there is any legal justification for finding any “implied” agreements between the parties.

For the reasons assigned, we consider that the trial court correctly decided this case. His ruling is affirmed and all costs of this appeal are assessed to appellants.

AFFIRMED.


author: ELLIS, Judge:

text:
    BOWIE CONSTRUCTION CO., INC. v. Dewey RODRIGUE.
    No. 11563.
    Court of Appeal of Louisiana, First Circuit.
    May 17, 1977.
    Charles Hanemann, Houma, for appellant.
    Keith N. Whipple, Houma, for appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

In this suit, plaintiff’s main demand is for $650.00 and defendant’s reconventional demand is for $100.00. Judgment was rendered and signed on March 8, 1977, granting judgment to plaintiff for $650.00 plus interest.

C.C.P. Article 4833(B), amended by Act 84 of 1976, provides:

“The appeal from a city court when the amount in contest is one thousand dollars or less exclusive of interest, shall be returnable to the district court of the district in which the city is located.
“The appeal from a city court when the amount in contest exceeds one thousand dollars, exclusive of interest, shall be returnable to the court of appeal of the circuit in which the city is located.”

This appeal should have been taken to the 32nd Judicial District Court, and this Court is therefore without jurisdiction.

Pursuant to the provisions of Article 2162 of the Code of Civil Procedure, and R.S. 13:4441, this appeal is hereby transferred to the 32nd Judicial District Court in and for the Parish of Terrebonne for further proceedings, according to law.

APPEAL TRANSFERRED.


text:
    Fred DOSS v. STATE of Mississippi.
    No. 49372.
    Supreme Court of Mississippi.
    March 9, 1977.
    Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Alcorn County; Fred Wicker, Judge.

Before SUGG, J.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.