text:
    Robert PEREZ, Jr., Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY et al., Defendants-Appellees.
    No. 6846.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Writ Refused March 23, 1979.

      Domengeaux & Wright, William P. Rutledge, Lafayette, for plaintiff-appellant.
    Voorhies & Labbé, Richard D. Chappuis, Lafayette, for defendants-appellees.
    Davidson, Meaux, Sonnier & Roy, L. Lane Roy, Lafayette, amicus curiae.
    Before WATSON, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

This is a suit for damages by Robert Perez, Jr., as a result of injuries received while performing his duties as an employee of Morton Chemical Company. The defendants are certain executive officers and/or employees of Morton and their insurer, Continental Casualty Company. The defendants filed an exception of no right or cause of action on the ground that LSA-R.S. 23:1032, as amended by Act 147 of 1976, granted immunity to defendants as executive officers or co-employees from being sued in tort by a fellow employee.

The trial court sustained the exception filed by defendants, dismissing plaintiff’s suit. Plaintiff appeals.

The single issue presented on appeal is whether LSA-R.S. 23:1032, as amended by Act 147 of 1976, is constitutional.

Before we get into a discussion of the issue, we feel that a brief background discussion of the statute would be helpful. The initial Workmen’s Compensation Act came into being by the adoption of Act 20 of 1914. The fundamental characteristics of the Act have remained intact to this date. The changes that have been made have usually affected the amount of compensation allowed, changes of disability provisions, or other amendments which were necessitated by experience.

The purpose of the Act is set out in the case of Atchison v. May, 201 La. 1003, 10 So.2d 785 (1942), where our Supreme Court stated as follows:

“. . . The act, which is social legislation, was passed for the joint benefit of labor and management in order to insure that employees who became disabled as a result of their labors in hazardous industries would have, during the period of their disability, a weekly income for the upkeep of themselves and their families. * * * In order that this end might be accomplished, the Legislature provided for sacrifices to be made by both the employer and the employee. The employee was required to waive the right granted him under the general law, Article 2315 of the Civil Code, in consideration of receiving a fixed percentage of his wages during the period of disability. The employer, on the other hand, was deprived of the defenses afforded to him by the general law and he was assured that, in case any of his employees were injured, they would be entitled to no more than the amount stipulated in the statute as compensation during the period of disability. * * *• ”

One of'the fundamental features of the Act is that the employee’s cause of action against the employer is exclusively for workmen’s compensation (LSA-R.S. 23:1032). Even though the cause of action for compensation is exclusive between the employee and employer, the Act, however, authorizes the employee to proceed against third parties for damages even though he has been awarded compensation by his employer for the same injury (LSA-R.S. 23:1101).

The term “third parties” as used in this section was interpreted to include officers, directors, principals, and employees of the employer. Until 1959 the cases involving the tort liability of a fellow employee were concerned with claims against workers on approximately the same level of employment as the victim. The problem of the liability of persons in the upper echelons of management was raised in 1958 in the case of Adams v. Fidelity and Casualty Company of N. Y., 107 So.2d 496 (La.App. 1st Cir. 1958). Malone, Louisiana Workmen’s Compensation Law and Practice, § 366, p. 193, 1964 Supp. Following Adams, the line of cases developed commonly referred to as “executive officer” suits. Canter v. Koehring Co., 283 So.2d 716 (1973).

With the advent and progression of the “executive officer” suits, the employer was faced with serious problems of practical importance. As pointed out by Malone, Louisiana Workmen’s Compensation Law and Practice, § 366, p. 194 of 1964 Supp.:

“. . .If officers in the upper echelons of management find themselves exposed to the often disastrous prospect of tort liability for the almost unlimited number of employee accidents that could be in some way attributed to their neglect, they will be impelled in practice to exact liability insurance from the corporate employer. The result may be a denial to the employer of much of the practical advantage of the exclusive remedy provision. This, however, is a matter for legislative consideration.”

Thus, the legislature adopted Act 147 of 1976 (amending LSA-R.S. 23:1032) which extended tort immunity not only to employers but also to any principal, officer, director, stockholder, partner or employee of such employer.

We now approach the question of constitutionality of the amendment.

Shortly after the adoption of the Louisiana Workmen’s Compensation Act in 1914, it was challenged as being unconstitutional on the ground that it was a denial of due process of law and was also a deprivation of the equal protection of the laws. Boyer v. Crescent Paper Box Factory, 143 La. 368, 78 So. 596 (1917). The court held the act constitutional, citing the U.S. Supreme Court case of New York Central R. R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917). The court in the latter case found a New York workmen’s compensation act constitutional on the ground that such legislation was within the police power of the State.

Subsequent Louisiana cases likewise reflect that the statute has withstood attacks of constitutionality. Day v. Louisiana Central Lumber Co., 144 La. 120, 81 So. 328 (1919); Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919); and Williams v. Blodgett Construction Co., 146 La. 841, 84 So. 115 (1920). In these cases the plaintiffs generally attacked the validity of the Act on the ground that the Act unconstitutionally deprived the plaintiffs of the right to proceed in tort against the employer.

Our Supreme Court in a more recent case, Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971), in discussing the validity of the Louisiana Workmen’s Compensation Law, held as follows:

“The Louisiana Workmen’s Compensation Act was adopted in 1914. [footnote omitted] It rests upon the sound economic principle that the cost of injuries and deaths incurred in the manufacture or distribution of a product' should be diffused in the channels of commerce as part of the price to the consumer.
* * * * * *
“It provides a framework for compensation for disability or death from work-connected injuries without regard to fault. The benefits in the Act do not include the full range of elements in tort damages. The failure of the workmen’s compensation statute to afford recovery for all losses recoverable in tort does not impair its validity. See New York Central Ry. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A.1917D, 1 (1917); Bergeron v. New Amsterdam Casualty Company, 243 La. 108, 141 So.2d 832 (1962); Colorado v. Johnson Iron Works Ltd., 146 La. 68, 83 So. 381 (1919); Day v. Louisiana Central Lbr. Co., 144 La. 820, 81 So. 328 (1919).
‡ $ ‡ ifc Sfc !j!
“As this Court stated in Haynes v. Loffland Bros. Co., 215 La. 280, 40 So.2d 243 (1949), the amount of compensation, to whom it is due, and the conditions under which it may be demanded address themselves to the law-making body of the state.”

The plaintiff, while not attacking the constitutionality of the employer’s immunity, contends that the extension of such immunity to officers, directora, stockholders, and employees of the employer is unconstitutional as being a denial of the equal protection of the law as provided by Article 1, Section 3 of the Louisiana Constitution of 1974, which provides:

“No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”

In the recent case of Burmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381 (1978), the Supreme Court defined the scope and effect of this constitutional provision:

“. . . The equal protection guarantee of our constitution, however, was intended only as a restatement of the federal equal protection clause. State v. Barton, 315 So.2d 289 (La.1975).
“Generally, the guarantee of equal protection requires that state laws affect alike all persons and interests similarly situated. Succession of Robins, 349 So.2d 276 (La.1977). Where, as here, there is no involvement of a ‘suspect classification’ or ‘fundamental right,’ traditional equal “ Fundamental rights include such rights as free speech, voting, interstate travel and other fundamental liberties. Suspect classifications are those involving such unalterable traits as race, alienage and religion. See Everett v. Goldman, infra.”
protection analysis sustains a classification if it is not arbitrary and bears a rational relationship to a legitimate state interest. Everett v. Goldman, 359 So.2d 1256 (La.1978); Succession of Robins, supra; State v. Everfield, 342 So.2d 648 (La.1977). The legislature has a wide scope of discretion in enacting laws which affect some groups of citizens differently from others. The constitutional safeguard of equal protection is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).”

As previously discussed, the growing number of “executive officer” suits presented practical problems to the employer. By extending the employer’s immunity from tort suit to the officers, directors, stockholders, partners or employees of such employer, the legislature granted immunity, not only to an employer, but to those who form the basic indispensable ingredients of the employer’s business. Such extension of immunity tends to maintain the integrity and original purpose of the act. Under these circumstances this legislative classification is found to be within reason and it achieves the objective of the state. It is not a denial of equal protection of the law.

Plaintiff’s further contention, that the amendments are a violation of the due process clause, is without merit. The accident herein occurred after the effective date of the amendment. At the time the accidental injury occurred, no cause of action existed against defendants; thus, it cannot be said that plaintiff was deprived of a cause of action by the statute.

In Burmaster, supra, the Supreme Court held as follows:

“Where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. See Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.Ct. 140, 78 L.Ed. 342 (1933); Pritchard v. Norton, 106 U.S. 124, 132 (1882). However, where the injury has not yet occurred and the cause of action has not yet vested, the guarantee of due process does not forbid the creation of new causes of action or the abolition of old ones to attain permissible legislative objectives. See Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929). Our jurisprudence has recognized the validity of legislative regulation of causes of action, including replacement and even abolition, that one person may have against another for personal injuries. See Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971); Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919); see also Heirs of Fruge v. Blood Services, 506 F.2d 841 (5th Cir. 1975).”

The amendment does not violate the due process clause of the Constitution.

The plaintiff cites cases decided in the States of Arizona and Alabama to support his position. In the case of Kilpatrick v. Superior Court, 105 Ariz. 413, 466 P.2d 18 (1970), the court ruled that an act granting “executive officer” immunity was unconstitutional under the Arizona Constitution. The court cited two constitutional provisions which prohibited any limitation on a tort action. The Louisiana Constitution of 1974 contains no such limitations or prohibitions as those found in the Constitution of Arizona. The second case relied upon by plaintiff is Grantham v. Denke, 359 So.2d 785 (Ala.1978). The Alabama court, citing and following Kilpatrick, held that the Constitution of Alabama preserved the injured employee’s common law cause of action against executive officers or co-employees.

Grantham has no application to the case at hand. That case was decided upon common law principles of tort. Such principles of common law, as a basis for an action in damages, cannot be applied to the law of tort in Louisiana. Our tort law emanates from Civil Code Article 2315, which is statutory, and “the regulation of what recourse one person may have against another for personal injury is a matter entirely within legislative discretion.” Colorado v. Johnson Iron Works, supra.

In conclusion we hold that there is no constitutional impediment to the validity of the amendment in question.

For these reasons, the judgment of the lower court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

      . LSA-R.S. 23:1032, as amended, reads in part as follows:
      “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal, or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease.” [Emphasis added]
      By so amending LSA-R.S. 23:1032, it was also necessary to amend LSA-R.S. 23:1101, which now reads in part as follows:
      “When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as third person) other than those persons against whom said employee’s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives, against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury or compensable sickness or disease.”

      . For a discussion of the history of the Act, see Malone’s Louisiana Workmen’s Compensation Law and Practice, § 32, p. 36.

      . La.Const. art. 1, § 22 provides:
      “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial,
      partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”


source: Caselaw Access Project

author: SAMUEL, Judge. BEER, Judge,

license: Public Domain

text:
    Maurice LOUPE, Jr., et al. v. Thomas A. TILLMAN et al.
    No. 9489.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.

      Hackman & Lewis, Gordon Hackman, Boutte, for plaintiffs-appellants.
    Earl G. Pitre, Metairie, for defendant-ap-pellee.
    Before SAMUEL, GULOTTA, BOU-TALL, BEER and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiffs, husband and wife, filed this suit for property damages and personal injuries sustained by the driver-wife and plaintiffs’ minor son (a guest passenger) in an automobile accident which occurred on November 24, 1975. Defendants are Thomas A. Tillman, driver of the other vehicle, and Thomas Freeman, a guest passenger in that vehicle, and Hartford Accident & Indemnity Company, plaintiffs’ automobile liability insurer, based on their policy which contained an uninsured motorist provision. No service was made on the individual defendants and the matter went to trial only as against Hartford.

Following trial, judgment was rendered dismissing plaintiffs’ suit against Hartford based on a finding that plaintiffs had failed to carry their burden of proof as to the uninsured status of the defendant driver-owner. Plaintiffs have appealed.

The record establishes that the plaintiff-wife was traveling on Airline Highway, proceeding in the direction of New Orleans, when the defendant vehicle pulled out of a parking area adjacent to a lounge and turned directly in front of the plaintiff car, causing a head-on collision. It is clear the accident resulted solely from the negligence of the defendant-driver and Hartford does not argue otherwise.

Tillman had an expired Texas driver’s license, gave police an address in Illinois as his residence, and stated to the police that he was residing in Metairie, Louisiana at the time of the accident. The guest passenger gave no address.

The uninsured status of the offending motorist is a condition precedent to an insured’s recovery against his insurer which must be alleged and proved. This burden rests with plaintiff.

The controlling statute here is LSA — R.S. 22:1406D(6) prior to its amendment by Act 543 of 1978. At the time of trial (April 7, 1977) the statute read:

“(6) In any action to enforce a claim under the uninsured motorist provisions of an automobile liability policy, the following evidence shall be admissible as prima facie proof that the owner and the operator of the vehicle involved did not have automobile liability insurance in effect on the date of the accident in question:
(a) The introduction of sworn notarized affidavits from the owner and the operator of the alleged uninsured vehicle attesting to their current addresses and declaring that they did not have automobile liability insurance in effect covering the vehicle in question on the date of the accident in. question. When the owner and the operator of the vehicle in question are the same person, this fact shall be attested to in a single affidavit.
(b) A sworn notarized affidavit by an official of the Casualty and Surety Division to the effect that on the date of the accident in question, neither the owner nor the operator, if both are residents of the State of Louisiana, had in effect a policy of automobile liability insurance. This affidavit shall be served by certified mail upon all parties fifteen days prior to introduction into evidence.
(c) Any admissible evidence showing that the owner and operator of the alleged uninsured vehicle was a nonresident or not a citizen of Louisiana on the date of the accident in question, together with a sworn notarized affidavit by an official of the Casualty and Surety Division to the effect that on the date of the accident in question, neither the owner nor the operator had in effect a policy of automobile liability insurance.
(d) The effect of the prima facie evidence referred to in (a), (b) and (c) above is to shift the burden of proof from the party or parties alleging the uninsured status of the vehicle in question to their uninsured motorist insurer.” LSA-R.S. 22:1406D(6).

Plaintiffs presented the following evidence regarding the uninsured status of Tillman: Mr. Darrell Bargainnier, claims manager for the defendant insurer, was called on cross examination under the act. He was not under subpoena, was not in court in response to a subpoena duces tecum and was permitted to testify without objection on the part of defendant counsel. He testified he was familiar with plaintiffs’ claim and their policy and had reviewed the file as to the uninsured motorist claim. He admitted receiving information from the Louisiana Department of Insurance that there was no evidence of insurance for Tillman in this state.

Bargainnier further testified: His company made exhaustive and expensive efforts to track down Tillman, sending a personal contact to the Metairie address. There was no response. Letters sent by the insurer to Tillman’s Illinois address were returned “Moved, left no forwarding address.” Thereafter the insurer’s Illinois office checked the address given by the driver in that state and determined Tillman was a very transient person. The insurer employed an investigator to check all known addresses. Since Tillman was not located in New Orleans, they tried the apartment complex in Texas where he allegedly resided. The insurer used outside and inside investigators on their own staff and an independent investigator trying to locate Tillman, but were unable to do so. The Illinois authorities told Hartford they had no information on Tillman.

Bargainnier expressed no disagreement with the information received at his own request from the Louisiana Department of Insurance showing no insurance coverage in this state, but refused payment because he was of the opinion Tillman’s uninsured status had not been established (possibly because the company had been unable to locate Tillman or to determine from the insuring authorities of one or the other states that Tillman was uninsured).

Plaintiffs and Hartford entered into numerous stipulations at the trial. In addition, plaintiffs’ attorney had subpoenaed records pertaining to Tillman from the Louisiana State Department of Insurance. Since there was no response to the subpoena, plaintiffs anticipated a stipulation from the insurer’s attorney that this state had no record of liability insurance for Tillman at any of the three addresses. The insurer’s attorney refused this broad stipulation stating “They have no such record of coverage in Louisiana but they can’t comment on coverage in Texas and Louisiana”. She then reserved her right to question the plaintiff-wife as to any medical problems and periods of employment.

There is no affidavit in the record which would establish a prima facie case strictly under the provisions of LSA-R.S. 22:1406D(6), which affidavit would remove the burden of proof from the plaintiffs and ■place that burden on defendant. Hence, the plaintiffs have the burden of proving by other evidence that the owner and/or the driver of the offending vehicle were uninsured. We are satisfied the evidence adduced, particularly the testimony of Barga-innier and the documentary evidence of Hartford’s entire file, is sufficient to prove the defendant-driver-owner is an uninsured motorist. Under the circumstances here, we can conceive of no further proof an insured could make or should be required to make. Since sufficient other proof was offered, the introduction of the affidavit provided by LSA-R.S. 22:1406D(6), which alone would have been prima facie evidence and would result in shifting the burden to defendant, is unnecessary.

QUANTUM

Maurice Loupe, III, a minor (whose age is not apparent in the record but who was described by his mother as “my little boy”) was knocked out of the bucket seat and had a bruise on the left side of his neck, back and shoulder. He was very frightened for some time thereafter while riding in an automobile. Two weeks after the accident he was seen by his pediatrician, Dr. Joseph J. Isolani, because of continued complaints of pain in the jaw. Physical examination was negative except for a contusion still evident on the left side of the child’s face.

It is stipulated that the doctor charged $10. We award $500 for personal injuries sustained by the child.

Latina J. Loupe, the 29 year old driver of the plaintiff vehicle, hit the left side of her head on the door. Her elbows broke the steering wheel. She was taken to East Jefferson Hospital where she received emergency treatment. X-rays were taken which were negative for fracture or dislocation.

She saw her family physician, Dr. David J. Vial, on December 2,1975, approximately a week after the accident. The doctor found multiple abrasions of the right hand, right knee, and multiple contusions of the left shin, left hip, both elbows and head and generalized stiffness and myositis of the neck, lumbar spine, left thigh and lower left leg. She was treated on a conservative basis and seen on five follow-up visits until January 16, 1976. At that time she had a small nodule one inch below the left knee which prevented full flexion. The doctor concluded the nodule was a residual hema-toma. She wore a knee brace for two months. There was discoloration in the area of the abrasions on the right hand and in the area of the cut on the right knee. The knee pain persisted for four months. Plaintiff returned on October 21, with complaints of headaches. Analgesics and tranquilizers were prescribed at that time.

Dr. Vial charged $85. At the time of trial plaintiff still had scars as a result of the accident. As described by the trial court, they consisted of a bony protrusion two inches below the left kneecap three-fourths inch in diameter, a very slight discoloration one and one-half inch beneath the right thumb, one and one-half inch long, and a small discoloration about one inch beneath the third finger of the right hand. (The trial was April 7, 1977, about lVfe years after the accident.) Mrs. Loupe is the plant nurse at Beker Industries in Hahnville. She earns $34.64 per day and missed four days following the accident.

We award Mrs. Loupe $138.56 for loss of wages, $85 for medical expenses, and $3,500 for personal injuries.

We make no award for property damage because damage to property is not recoverable under the uninsured motorist provision of the policy.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment against the defendant, Hartford Accident & Indemnity Company, and in favor of Maurice Loupe, Jr., individually, in the sum of $10, and in the sum of $500 on behalf of his minor son, Maurice Loupe, III, and in favor of Latina J. Loupe in the sum of $3,723.56, together with legal interest from date of judicial demand until paid. All costs in both courts are to be paid by the defendant, Hartford Accident & Indemnity Company.

REVERSED.

BEER, J., dissented with written reasons.

BEER, Judge,

dissenting.

I respectfully dissent, being of the view that the trial judge was correct in dismissing plaintiff’s suit.

      . The police report shows Tillman was also the owner of the vehicle.

      . Talazac v. Phoenix of Hartford Insurance Company, La.App., 259 So.2d 636; Bullock v. Perry, La.App., 238 So.2d 796; Manuel v. American Employers Insurance Company, La. App., 212 So.2d 527; Vitrano v. State Farm Mutual Automobile Ins. Co., La.App., 198 So.2d 922; Macaluso v. Watson, La.App., 188 So.2d 178.

      . Although the particular holding subsequently was deleted by Per Curiam, because the court later found the statute inapplicable due to the fact that it had been adopted prior to the time of trial, we note that in Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81, 84, the Supreme Court had before it the identical statute involved here and it originally held that plaintiffs failure to introduce the proper affidavit simply resulted in the burden of proof remaining with the plaintiff.

      . She is legally separated from her husband and consequently we do not make the award to him.

      . We note that defendant paid property damage under other provisions of the policy.


author: STOULIG, Judge.

text:
    HUBER, HUNT & NICHOLS, INC. v. STATE of Louisiana.
    No. 9570.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.
    Deutsch, Kerrigan & Stiles, A. Morgan Brian, Jr., New Orleans, for plaintiff-appel-lee.
    William J. Guste, Jr., Atty. Gen., Robert E. Redmann, Asst. Atty. Gen., Reuter & Reuter, Arthur C. Reuter, New Orleans, for defendant-appellant.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

The State of Louisiana (State) has appealed a judgment compelling it to return to arbitration proceedings in a dispute with Huber, Hunt & Nichols, Inc. (Huber), the contractor, arising out of a contract to construct a building in the LSU Medical Center in New Orleans. The dispute involves Huber’s claim for extra compensation of approximately $750,000 and a 40-day extension of the contract completion time because of an unusually high incidence of breakage of prestressed concrete piling driven for the foundation by the subcontractor, Boh Brothers Construction Co.

Huber, following Article 2, Section 2.2.6 of the American Institute of Architects (AIA) General Conditions of the Contract of Construction, made part of the contract between Huber and the State, first submitted the dispute to the project’s architect. The State rejected liability for the breakage and Huber then demanded arbitration under the compulsory arbitration clauses in the contract.

Initially the State did not resist arbitration and on June 16, 1976, this matter was docketed as proceeding No. 72-10-0045-76 of the American Arbitration Association, Dallas regional office. In subsequent months both litigants participated in the preliminary procedural stages of arbitration, but on December 14, 1976, the State advised Huber it did not think the matter was subject to arbitration.

Huber sought unsuccessfully an order from federal district court compelling the State to proceed; however, that tribunal decided it lacked jurisdiction. Huber then filed this suit and obtained an order from the Civil District Court for the Parish of Orleans to compel the State to proceed with arbitration and to comply with Huber’s requests for discovery under C.C.P. art. 1421, et seq. From this judgment the State has appealed.

Appellant rested its argument on our decision in Landis Const. Co. v. Health Ed. Auth., 359 So.2d 1045 (La.App. 4th Cir. 1978), which, at the time the instant case was submitted, was pending before the Supreme Court on writs of review.

In Landis we held a stipulation for arbitration was unenforceable in a construction contract between a public agency and a private corporation when neither was expressly authorized to agree to arbitration in the resolutions enabling them to contract. The Supreme Court reversed this result holding the authority to execute the contract included the authority to bind the agency to all its provisions, including an agreement to arbitrate.

In this case the authority of the public agency (Division of Administration, Facility Planning & Control Department) to contract is derived from R.S. 39:1410, which, inter alia, authorizes the Division of Administration to approve capital outlay programs proposed by Louisiana State University, to make available funds for construction and to supervise and administer the letting of contracts to accomplish this purpose.

Applying Landis we conclude the State is bound by all the provisions of the contract to which it became a party and hold it is obligated to submit the dispute in question to arbitration.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The contract in question is dated January 5, 1976 between Huber, Hunt & Nichols, Inc., and the State of Louisiana through its Division of Administration.

      . “2.2.6 The Architect will be, in the first instance, the interpreter of the requirements of the Contract Documents and the judge of the performance thereunder by both the Owner and Contractor. The Architect will, within a reasonable time, render such interpretations as he may deem necessary for the proper execution or progress of the Work.
      ******

        “2.2.10 Any claim, dispute or other matter that has been referred to the Architect, except those relating to artistic effect as provided in Subparagraph 2.2.9 and except any which have been waived by the making or acceptance of. final payment as provided in Subparagraphs 9.7.5 and 9.7.6, shall be subject to arbitration upon the written demand of either party. * * ******
      “7.10 ARBITRATION
      “7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.”

      . Landis Const. Co. v. Health Ed. Auth., 367 So.2d 330 (La.1979).


author: REDMANN, Judge.

text:
    Mrs. Betty N. ZINDO v. PELICAN BUILDERS, INC., et al.
    No. 9678.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.

      William H. Reinhardt, Jr., Post, Reinhardt & Rougelot, Metairie, for plaintiff.
    Ira J. Middleberg, Miranne & Miranne, New Orleans, for defendant.
    Before SAMUEL, REDMANN and GU- . LOTT A, JJ.
   REDMANN, Judge.

Plaintiff appeals the dismissal of her action against a building expert and the lender who obliged her to pay a 1% fee to have the construction of an addition to her home “supervised” by that expert. Plaintiff argues that the lender’s forcing her to pay for “supervision” by its expert obliged the lender and the expert to provide her with reasonable supervision. Reasonable supervision would have prevented the fall to ruin of her addition because it would have rejected the indefensibly inadequate concrete pilings which caused the fall to ruin.

The insuperable defect in plaintiff’s argument, whatever its merit otherwise, is that plaintiff (to whose building contract defendants were not parties) did not notify these defendants that she was about to begin construction or call upon them to provide supervision until the work was complete. She began the work in the first (or perhaps second) week of April 1972. She had only applied for the loan on March 29. The application recited “All new buildings erected and repairs made through the Association [lender] must be supervised by the Association’s expert for which a fee is charged.” No loan was made, however, until May 5, and defendant expert did not inspect the work until May 18 or 19, when it was 99% complete. Plaintiff in her commendable honesty concedes she is unable to say she asked the expert to inspect before the May 5 loan, by which time the pilings and slab had long been completed.

Assuming that the lender and its expert did owe plaintiff competent supervision, she prevented their performing their obligation and therefore cannot hold them liable for the consequences of their failure to perform:

the party wishing to put the other in default, must be himself ready, and must offer to receive the performance at the time and place stipulated in the contract or implied from the nature of the act to be done, and he can not avail himself of any demand at any other time or place .... La.C.C. 1914.

Defendants are thus not liable for the damages resulting from their nonculpable nonperformance. On the other hand, they are equally not entitled to the full fee for full performance and should not have retained more than, say, half of the fee. Although plaintiff never asked for return of part of the fee and we therefore do not award her any costs, we act under C.C.P. 2164’s mandate to render the appropriate judgment on the record, giving her judgment for $19.25, being half of the $38.50 fee.

Plaintiff also complains of the trial court’s judgment’s failure to cast Sammy Graves, an employee of the corporate builder, and of its quantum against the builder (original contract price rather than cost to remove and replace). One problem with both of these issues is that neither Graves nor the builder was given notice of trial. For lack of notice of trial we cannot cast the absent Graves. However, the builder was apparently represented at trial, by leave of the trial judge, by Stanley Bishop, who had been dismissed as an individual defendant but who, his deposition indicates, held dominion over the corporate builder. We conclude that the corporation did have actual notice of and actually (if irregularly) participated in the trial and should be bound by the judgment.

On quantum we conclude that the trial judge acted within his authority in rejecting the $9,000 cost that one contractor estimated for the work, including 30-foot wood pilings as opposed to 12- or 15-foot concrete pilings. Plaintiff was not entitled to have her addition constructed as it best should have been but only as her contract provided it should have been, and she had the burden of proving what it would cost to remove the old work and properly execute the contract. The trial judge thus reasonably awarded the original contract amount of $3,842, as the amount unquestionably necessary to have the addition reconstructed. We amend his judgment, however, to award $1,000, estimated roughly but more likely to be correct than zero, for the cost of removing the failed construction.

Judgment amended to award $19.25 with interest from May 19, 1972 against Security Homestead Association and Russell Cuoco in solido without costs, and to increase the principal of the award against Pelican Builders, Inc. by $1,000 with all costs.


author: LEMMON, Judge.

text:
    Eldor MYERS and Annamae Mills Myers, his wife v. Robert F. MORROW and International Insurance Company, Inc.
    No. 9692.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Roger W. Jordan, Metairie, for plaintiffs-appellants.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Edward P. Lobman and Jack M. Alltmont, New Orleans, for defendants-appellees.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

Plaintiff has appealed from a judgment dismissing his suit against his landlord for damages sustained in an apartment house fire. The issue on appeal is whether the trial court erred manifestly in concluding plaintiff failed to prove the fire was caused by defective electric wiring.

I

The physical make-up of the apartment was: As one entered plaintiff’s apartment through the front door, there was a living room to the right and a dining area to the left. Straight ahead from the front door and beyond the living room was a hall, which served as a passageway to two bedrooms on the right and to the kitchen and a third bedroom on the left.

When the mid-morning fire began, plaintiff was asleep in the first bedroom to the right (directly behind the living room). His wife and children were away at the time.

Plaintiff testified: He had gone out earlier that morning for his regular Saturday trip with his son for coffee and doughnuts.. When they returned, they watched television in that bedroom, and after he fell asleep, his son apparently left the apartment. Smelling smoke when he woke up, he opened the door leading from the bedroom into the hall and encountered fire and intense heat. He couldn’t see anything because of dense smoke, but when he turned and saw light in the direction of the window in the bedroom’s outside wall, he escaped by breaking the window open. His exposure to the fire, heat and smoke caused severe burns and lung damage.

In support of his assertion that the fire was caused by an electrical defect plaintiff presented an electrical engineer experienced in fire investigation. Based on his inspection of the apartment 17 days after the fire and his examination of photographs taken four days after the casualty, as well as the sequence of events related by plaintiff, the expert opined that the fire was caused by a short circuit in the cable which served the electric heating element and started in the void space above the hall ceiling, where he found the most fire damage to the wooden members of the building structure. At that location he also found a section of the cable where the wires had beaded or fused together and burned through. While he admitted the beading could have been caused by external heat from a fire started elsewhere, he took the view that a short circuit in the cable caused the beading, because the outer jacket of the cable was still intact to a large extent except where the cable had burned through.

Relying on this premise, the expert then theorized that as the fire in the confined area intensified and began to burn through the ceiling, some burning material fell to the floor of the hall and started a fire there, which spread to the combustible materials in the hall. Then, either after plaintiff opened the bedroom door or after the fire burned through the door, the fire spread into the bedroom and eventually intensified in the direction of the broken window, which upon being opened became a new source of oxygen.

Defendants’ position was that the fire started in the bedroom occupied by plaintiff, from some heat producing source, and then spread through the open bedroom door, upward to the return air plenum of the air conditioning unit (an enclosure in the unit where the air pressure is greater than outside), located in the hall ceiling, where there was heavy fire damage to exposed studs and joists in the area of the chamber. (This is the same area where the broken cable with beaded wires was found.)

The parish’s chief of fire prevention inspected the apartment immediately after the fire, and an electrical engineer inspected it within two days. They found that the major fire damage was in the bedroom and the hall ceiling, that the bedroom door had been consumed and the doorframe charred, that only the bare springs of the bed near the door remained, but that a wooden bookshelf in the hall across from the bedroom door had little fire damage and that the principal fire damage in the hall was high on the walls and in the ceiling. The fire chief opined that the fire started in the area of the bed, perhaps from plaintiff’s smoking in bed and falling asleep with the cigarette dropping on or near the bed, and that the fire spread from the bedroom and followed an upward path of destruction, burning the wooden doorframe and regenerating when the flames reached the new source of oxygen in the return air plenum.

The electrical engineer added his opinion that the failure of the wire (relied on by plaintiff’s expert) was caused by external heat, rather than a defect in the wire itself, since the major damage to the wiring was “fairly close to the confines or major areas of heat above the ceiling with the insulation in tact (sic) as soon as you left this area”.

Defendants also presented two residents of the apartment complex, who were standing across the walkway from plaintiff’s apartment when smoke was first detected. They opened the front door of the apartment and (although there was smoke, it was not hard to see) saw low flames (about two feet high) coming from the doorway to the bedroom on the right of the hall, but saw no flames in the hall ceiling or in the hall, except those coming from the bedroom. They heard someone in the bedroom and went for help. Upon returning, the flames were much higher, and they heard glass breaking in the area of the side window.

In rebuttal plaintiff also presented a chemical engineer who opined that the fire had started in the return air plenum and had spread through the air conditioning duct to the bedroom and eventually to the broken window. He discounted the possibility of a mattress fire, stating that a cigarette on a cotton mattress will cause a fire which smolders for hours without igniting and that the mattress in this case was probably consumed by a sustained external flame, which originated elsewhere and which burned the mattress after the window was broken. He reasoned that most of the fire damage was in the bedroom because there was more combustible materials in that room than in the hall.

II

Defendants’ experts’ theory was based on the fact that there was heavier charring on the inner side of the bedroom doorframe, indicating that side was exposed to the fire for a longer period; the fact that the low wooden bookshelf in the hall was hardly damaged and that the pantry door next to the kitchen was burned only at the top, indicating the fire in the hall did not burn intensely on or near the floor; the fact that the fire damage on the lower walls of the hall was not uniform on both sides, but was concentrated on the bedroom side; the fact that there was little or no damage in the hall toward the living room, which would have been the more likely direction of acceleration if the fire had started above the hall ceiling and regenerated on the floor with the bedroom door closed; and the information received at the scene that plaintiff was a heavy smoker and drinker. (Burn holes were discovered in the mattress in the master bedroom in the rear, and two bottles of vodka were found under the bed, with at least 24 more being found scattered throughout the apartment.)

Significantly, this theory was entirely consistent with the testimony of the two independent witnesses who saw flames only from the bedroom doorway and not from the hall or ceiling at the early stages of the fire and prior to plaintiff’s escape from the bedroom.

On the other hand, the theory of plaintiff’s experts was contradicted by the independent testimony of the residents and to some extent by the physical evidence. The impressive testimony of plaintiff’s electrical engineer was weakened by the admissions that although the principal damage to wooden members of the structure was in the void space above the hall ceiling (where the members were exposed), the studs and joists in the bedroom were protected by noncombustible wallboard which retarded the fire; that from the damage .visible in the bedroom at the time of his inspection he would have expected that a fire originating in the hall ceiling would not have entirely consumed the bed; that under his theory the wooden furniture in the hall would probably have been consumed; that if the fire had regenerated on the hall floor and the bedroom door was closed, the door would have acted as a retardant and the fire would have intensified in the direction of the open living room, particularly if the front door had been opened; and that if the flooring and the furniture in the hall and in the bedroom were composed of materials of equal combustibility, there would probably have been greater fire damage in the hall. Also, that expert’s principal basis for fixing the point of origin was the persuasive finding of the beaded wire with little damage to the insulation beyond the point of beading, but that cable ran from the point of the break toward the kitchen (across the hall from the bedroom) where the fire damage was less.

Moreover, plaintiff’s chemical engineer, after expressing an entirely different theory as to the spread of the fire, withdrew to some extent upon learning that there had been no fire damage in the air conditioning duct to the bedroom. His theory as to spreading also conflicted with plaintiff’s testimony that the fire was in the lower part of the hall before reaching the bedroom. Therefore, the main import of his testimony was that this was not a mattress fire; however, that does not rule out defendants’ experts’ theory that the fire started in some combustible material in the bedroom.

Ill

This case does not involve, as plaintiff suggests, a choice between deciding whether the fire was caused by an electrical defect or whether it was caused by smoking in bed. This case turns on a question of burden of proof and involves a determination of whether the evidence, taken as a whole, establishes that the fire, more probably than not, was caused by some fault imputable to this defendant.

The plaintiff has the burden of proof in a circumstantial evidence case, and he has borne that burden only when the evidence taken as a whole indicates the defendant’s fault was the most plausible or likely cause of the fire and when no other factor can as reasonably be ascribed as the cause. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972); Hanover Ins. Co. v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir. 1974). The likelihood of causation due to the particular defendant’s fault must preponderate over the likelihood of causation from any other factor.

In the present case there was a considerable amount of impressive circumstantial evidence from which one could reasonably conclude that the fire was caused by an electrical defect'. However, there was also a considerable amount of impressive circumstantial evidence from which one could just as (or more) reasonably conclude that the fire was not caused by any defect in the premises or any other fault attributable to the landlord. Therefore, the evidence does not preponderate in plaintiff’s favor.

The judgment is affirmed.

AFFIRMED.


author: BOUTALL, Judge. BEER, Judge,

text:
    Carolyn T. THOMAS w/o and Harold F. Thomas v. ALLSTATE INSURANCE COMPANY and Joseph R. Davis.
    No. 9739.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.

      Arnold & Giepert, Melvin J. Giepert, New Orleans, counsel for Carolyn T. Thomas, wife of and Harold F. Thomas, plaintiffs-appellees.
    E. Kelleher Simon, of Murphy & Simon, New Orleans, counsel for Allstate Ins. Co., defendant-appellant.
    Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment on the • pleadings rendered against a defendant.

The procedural sequence leading up to the judgment is as follows. Carolyn and Harold Thomas filed suit against Allstate Insurance Company and Joseph R. Davis for personal injuries suffered by Carolyn Thomas when her vehicle was struck from the rear by defendant Davis’s automobile. In their petition, the Thomas’s alleged that Carolyn was employed by Sam R. Woods, Jr., d/b/a Hacienda Lighting Company and was using her car for company business. Davis was alleged to be uninsured, and on that basis, plaintiffs named as defendant the Allstate Insurance Company, the insurer of Woods, her employer. Allstate filed answer and then a motion for summary judgment, contending that its policy was not applicable to plaintiffs. Davis filed no answer, and a default judgment against him was taken in the amount of $10,000.

Upon hearing the motion for summary judgment of Allstate, the court granted judgment in favor of Allstate and the matter was appealed to this court. We set aside that judgment and remanded, noting that under the policy as introduced in evidence, we could not tell whether there was liability coverage or not. See Thomas v. Allstate, 321 So.2d 808 (1975). Allstate later filed another motion for summary judgment, submitting the policy in its entirety, and the trial judge rendered judgment dismissing that motion for summary judgment. The matter was then moved for trial on the merits by plaintiffs. At the beginning of trial, plaintiffs moved orally for a judgment on the pleadings. C.C.P. Article 961. The trial judge granted plaintiffs’ motion and rendered judgment in favor of plaintiffs against Allstate in the sum of $10,000, the same amount as previously rendered against the defendant Davis by default.

Allstate then filed this appeal assigning as error procedurally the granting of the judgment on the pleadings, as well assigning as error the substance of the trial judge’s finding of coverage under the insurance policy and utilization of the default judgment against Davis to establish liability and judgment value on the co-defendant insurance company. Because we are of the opinion that the motion for judgment on the pleadings was improperly used procedurally, we do not pass upon the correctness of the trial judge’s conclusions.

The motion for judgment on the pleadings is authorized under the provisions of Code of Civil Procedure Article 965:

“Any party may move for judgment on the pleadings after the answer is filed, or if an incidental demand has been instituted after the answer thereto has been filed, but within such time as not to delay the trial. For the purposes of this motion, all allegations of fact in mover’s pleadings not denied by the adverse party or by effect of law, and all allegations of fact in the adverse party’s pleadings shall be considered true.”

It is well settled that consideration of a motion for judgment on the pleadings must be based upon the pleadings alone and that supporting evidence is not to be considered. Dragon v. American Bank & Trust Company, 205 So.2d 473 (La.App. 3rd Cir. 1967); Hygrade Investment, Inc. v. Leonard, 197 So.2d 702 (La.App. 4th Cir. 1967), writs refused 250 La. 919, 199 So.2d 922; and Alexander v. Bates, 192 So.2d 186 (La. App. 1st Cir. 1966).

Plaintiff’s petition alleged the facts of the accident and Davis’s negligence, and the resulting injury. It also alleged the employment by Woods, the use of the vehicle in the scope of employment, the uninsured status of Davis, and the application of the insurance policy of Allstate purchased by Woods. The answer denied each of these allegations and reiterated that there was no insurance coverage afforded plaintiffs. Since all of the pertinent allegations of fact were denied, it is apparent that there was no basis under Article 965 and the cases cited upon which judgment on the pleadings could be rendered.

The appellee argues to us that the judgment could be based upon the trial court’s determination of availability of the policy, upon which the trial judge based his denial of summary judgment, and upon the default judgment granted plaintiffs against Davis. To this we answer that both of these circumstances lie outside the scope of inquiry set out in Article 965 and should not have been considered on this motion. The defendant Allstate is entitled to a trial on the merits with the production of pertinent facts to determine the availability of the insurance and its liability for the negligence of the uninsured motorist.

Accordingly, the judgment appealed is reversed, and there is judgment in favor of appellant Allstate Insurance Company and against appellees Carolyn T. Thomas and Harold F. Thomas, overruling and dismissing the motion for judgment on the pleadings, and remanding this matter to the trial court for a hearing on the merits. Costs to await the final disposition of the case.

REVERSED AND REMANDED.

BEER, J., filed concurring statement.

BEER, Judge,

concurring.

I agree with the majority. The judgment should be reversed, and the motion for judgment on the pleadings overruled. However, I am satisfied that the state of the record supports final judgment dismissing plaintiffs’ suit at their cost.


text:
    Joseph I. GIARRUSSO, Sr. v. GIARRUSSO SECURITY SERVICES, INC., Guardsmark, Inc., and Honeywell, Inc., d/b/a Honeywell Protective Services.
    No. 9764.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.

      Stahl & Berke, Kenneth J. Berke, New Orleans, for plaintiff-appellant.
    Deutsch, Kerrigan & Stiles, William W. Messersmith, III, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Joseph I. Giarrusso, Sr., has appealed a judgment dismissing his suit against Giarrusso Security Service, Inc. (GSS), Guardsmark, Inc. (Guardsmark), and Honeywell, Inc., doing business as Honeywell Protective Services (Honeywell). Alleging he is a creditor of GSS, plaintiff has petitioned to (1) have a transfer of assets by GSS in separate sales to Guards-mark and Honeywell declared invalid for noncompliance with the Bulk Sales Law (R.S. 9:2961 et seq.) and (2) obtain as a creditor of GSS a $150,000 judgment against the defendants.

Defendants initially filed two peremptory exceptions, namely, no cause of action because the sale complained of was not regulated by Bulk Sales Law requirements, and no right of action because Giarrusso is not a creditor of GSS and has no standing'to sue even if the sales by GSS to the other defendants were subject to the R.S. 9:2961 et seq. regulations. The trial court overruled these exceptions and permitted defendants 15 days within which to file responsive pleadings. At this point a motion was filed in the record enrolling new counsel for defendants to replace those withdrawing.

The next pleading filed for defendants was one urging peremptory exceptions of no right or no cause of action, and alternatively, a motion for summary judgment. From a judgment maintaining these peremptory exceptions and also granting summary judgment, plaintiff has appealed.

The basis of plaintiff’s claim as a creditor of GSS is a pending claim for damages based on libel that plaintiff has urged in a reconventional demand in the suit Giarrusso Security Services, Inc. v. Joseph I. Giarrus-so, Sr., No. 604-421 of the Civil District Court of the Parish of Orleans. Not only is the sum uncertain, but his right to recovery has yet to be adjudicated.

The instant case rests on two premises, namely, that plaintiff was a creditor of GSS at the time its assets were sold to Guardsmark and to Honeywell and that the Bulk Sales Law is applicable to these transactions. Even were we to assume that GSS was subject to these regulations which admittedly it did not follow, plaintiff has no basis in law for recovery. R.S. 9:2961 provides:

“The transfer in bulk and otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the transferor, of any portion or the whole of a stock of merchandise, or merchandise and fixtures, or of all or substantially all of the fixtures or equipment used or to be used in the display, manufacture, care, or delivery of any goods, wares, or merchandise including movable store and office fixtures, horses, wagons, automobile trucks and other vehicles or other goods or chattels of the business of the transferor shall be void as against the creditors of the trans-feror, unless made in conformity with the provisions of this Part. As used in this Part, ‘creditor’ and ‘creditors’ mean only the creditor or creditors of the transferor with respect to a debt or debts owed by the transferor at the time of transfer, but not with respect to any debt or debts subsequently arising.”

Plaintiff under the admitted facts is not a creditor to whom the protection of this act is afforded. He simply has an unliquidated claim that had not been reduced to judgment. A claimant does not acquire the status of a creditor within the meaning of the Bulk Sales Law until the validity of his claim is established and liquidated. Only liquidated claims are contemplated by the requirement of R.S. 9:2963 “ * * * that the purchase money or other consideration of the transfer is applied to the payment of the bona fide claims of the creditors of the transferor pro rata * * Because plaintiff’s claim has not been reduced to judgment he has no standing to sue.

In reaching this result we do not pass on the issue of whether a demand for damages in libel is premature when urged in the same suit in which the statements in the petition form the basis of the libel complaint. Our conclusion that an unliquidat-ed claim does not ripen into a debt until a judgment is rendered obviates the need to discuss the appropriate time to file a libel claim.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Plaintiff did not file any countervailing affidavits or adduce any evidence in opposition to the motion for summary judgment.

      . It is questionable whether the Bulk Sales Law is applicable to a business such as GSS that renders a service rather than engages in the sale of merchandise; however, the decision in Servi-Clean Industries, Inc. v. Tonti Manage. Corp., 294 So.2d 580 (La.App. 4th Cir. 1974), suggests it includes businesses not strictly engaged in retail merchandising. See discussion on this point in Uarco v. Peoples Bank & Trust Co. of St. Bernard, 414 F.Supp. 1219 (E.D.La. 1976).

      . Viera v. Kwik Home Services, Inc., 266 So.2d 732 (La.App. 4th Cir. 1972), holds that a defendant alleging he was libelled by the petition in the suit to which he is responding may urge his complaint by reconventional demand. The logic of this case is compelling.


author: GULOTTA, Judge.

text:
    SOUTHERN SCRAP MATERIAL CO., LTD., Boland Marine and Manufacturing Co., Inc., and Lane & Company, Inc. v. The STATE of Louisiana, Through VARIOUS SUBDIVISIONS, AGENCIES & BOARDS, Including but not limited to the Board of Commissioners of the Port of New Orleans, the Department of Transportation and Development, Office of Highways, and the City of New Orleans each of which are named Individually as Defendants.
    No. 9774.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.

      Herman & Herman, Russ M. Herman and Joseph R. Boyd, New Orleans, for plaintiff s-appellants.
    City of New Orleans, Edmond J. Harris, New Orleans, for City of New Orleans, defendant-appellee.
    Phelps, Dunbar, Marks, Claverie & Sims, Charles M. Lanier and Danny G. Shaw, New Orleans, for Bd. of Comm, of the Port of New Orleans, defendant-appellee.
    Doran & Kivett, William J. Doran, Jr., Baton Rouge, for State of Louisiana Dept, of Transp. & Development, defendant-ap-pellee.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GULOTTA, Judge.

The trial judge dismissed, on exceptions of no right and no cause of action, plaintiffs’ petition to perpetuate testimony in connection with a contemplated future suit against defendants. We affirm.

In their petition plaintiffs allege, 1) that they are lessees of the Board of Commissioners of the Port of New Orleans of property situated adjacent to the Industrial Canal; 2) that defendants contemplate alteration, renovation, and reconstruction of the Florida Avenue bridge over the Industrial Canal; 3) that this project will disturb plaintiffs’ peaceable possession and will impede ingress to and egress from petitioners’ property, thereby adversely affecting plaintiffs’ businesses; 4) that serious safety and environmental hazards will be created; and 5) that because plans and specifications for the project have not been submitted for approval to various governmental agencies, an injunction suit is premature.

Relying on LSA-C.C.P. arts. 1429 and 1430, plaintiffs seek to depose seven (7) of defendants’ representatives and employees whom plaintiffs allege are “subject to transfer geographically” and may not be reasonably available for testimony after suit is filed. Defendants name as deponents, 1) David S. Huval, Bridge Design Engineer of Louisiana Office of Highways; 2) Sidney L. Polenard, Department Assistant Secretary of Louisiana Office of Highways; 3) Blaise M. Carriere, Director of Department of Streets, City of New Orleans; 4) Pierre Reeh, Director of Planning and Post Development of Board of Commissioner of the Port of New Orleans; 5) Edward S. Reed, Executive Board Director of Board of Commissioner of the Port of New Orleans; 6) Larry Rousseau, Project Engineer of Industrial Canal Lock, U.S. Corps of Engineers; and 7) Col. Herbert R. Haar, Associate Port Director of Board of Commissioners for the Port of New Orleans

According to the petition, plaintiffs seek to develop information relating to plans and alternatives to the project; consultants’ reports; histories of the project; lease information; local, state and federal funding; discussions relating to compliance with the Environmental Protection Agency and Federal Highway Regulatory Act; disclosures of records of the State Highway Department and Board of Commissioners of Port of New Orleans; details of plans, specifications and drawings; prior studies, traffic flow conditions, present and possible project traffic hazards, present and future ingress and egress problems; knowledge of, discussion and contemplation of plans to change the Industrial Canal locks and width, the Florida Avenue bridge and other projects by the U.S. Corps of Engineers; and, “other matters which reasonably relate” to the substance of the testimony and contemplated actions.

Additionally, plaintiffs requested in their petition that a Subpoena Duces Tecum issue ordering defendants to produce all surveys, studies, writings, diagrams, reports, correspondence, opinions, files, records, applications and financial information which in any way relate to the contemplated project from 1957 through the present date.

MOTION TO DISMISS

Before considering the appeal on its merits, it is necessary that we dispose of defendants’ Motion to Dismiss the appeal. The basis of defendants’ motion is that since the appeal has been lodged all bids for the project have been rejected; that the proposed construction has been indefinitely postponed; and it appears unlikely that the project will be constructed as originally designed. Under these circumstances, defendants claim the matter is now moot and the appeal should be dismissed.

We do not agree. The affidavit of the Director of the Department of Streets, City of New Orleans, attached to the motion, states that because the bids received for the project were substantially in excess of available funding “it is not certain” that the project will be readvertised for bid. Significantly, the affidavit does not indicate that the project has been abandoned. The possibility continues to exist that it may be readvertised. Because of the uncertainty of the construction we conclude the appeal is not moot. The motion to dismiss the appeal is denied.

ON THE MERITS

In oral reasons for maintaining defendants’ exceptions of no right and no cause of action, the trial judge stated: “Much of this information is in the nature of things pure discovery and not a matter of perpetuation.” We agree.

The authority for perpetuation of testimony, before a suit is filed, is found in LSA-C.C.P. art. 1429. Also, LSA-C.C.P. art. 1431 provides that if the court is satisfied that the perpetuation of the testimony may prevent “a failure or delay of justice” it shall render an order designating the persons and conditions under which the depositions may be taken.

These Code of Civil Procedure articles are derived from Rule 27 of the Federal Rules of Civil Procedure and Louisiana Courts rely upon Federal Jurisprudence as a persuasive guide to the intended meaning of these articles. In this connection, the Federal Courts have recognized that the purpose of Rule 27 is the perpetuation of testimony for use as evidence and is not intended to be used as a discovery device. See Ash v. Cort, 512 F.2d 909 (3rd Cir., 1975), reversed in other aspects 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); Petition of Ferkauf, 3 F.R.D. 89 (S.D.N.Y., 1943).

The appropriate discovery article in the Louisiana Code of Civil Procedure is LSA-C.C.P. art. 1422 which in pertinent part provides:

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the parties seeking discovery or to the claim or defense of any other party, . . . ”

A comparison of this article with LSA — C. C.P. art. 1429, the perpetuation of testimony provision, indicates that LSA-C.C.P. art. 1422 is broader in scope than LSA-C.C.P. art. 1429. This latter article (LSA-C.C.P. art. 1429) requires that a petitioner desiring perpetuation of testimony must.specify: 1) that he expects to be a party in a cognizable state action, but is presently unable to bring suit or cause a suit to be brought; 2) the subject matter and his interest in the expected action; 3) facts which he desires to establish and his reasons for perpetuation; 4) names or description and addresses of persons expected to be adverse parties; and 5) names and addresses of deponents and the substance of testimony which he expects to elicit from each, with a request for a deposition order.

When we compare the allegations of the petition in the instant suit with the requirements of LSA-C.C.P. art. 1429 and also with the provisions of LSA-C.C.P. art. 1422, relating to discovery, we are led to conclude that the trial judge was correct in his observation that much of the information sought is in the nature of “pure discovery and not a matter of perpetuation.”

We believe plaintiffs have complied with LSA-C.C.P. art. 1429’s first requirement in alleging sufficient basis that they are potential litigants in a possible future suit with defendants over the contemplated project. Further, because approval of the particular plans and bids have not as yet materialized they are presently unable to file suit.

Complying with the second requirement, plaintiffs have shown that the contemplated project would possibly have an effect on their interests as lessees and as representatives of the taxpayers. Moreover, they seem to adequately set forth the subject matter of the expected litigation, namely, disruption of their peaceable possession of their leased properties, obstruction of ingress and egress to these leased properties, creation of safety and environmental hazards, inadequacy of the projected use of the project, and waste of the taxpayers’ assets and money.

Plaintiffs’ compliance with the third requirement is more troublesome. According to their petition, plaintiffs desire to elicit from all seven of the deponents a multitudinous list of wide range types of information, and additionally, request a Subpoena Duces Tecum to procure numerous documents. It is at this point the trial judge has the discretion to balance, prior to filing of a suit, the need for such general and broad information with the prevention of harassment and an unnecessary waste of the time and money of defendants and deponents. The trial judge determined that the list of information was not justified at this time. We agree. But, this is not to say that a more limited and less inclusive request could not be made.

In contrast to the discovery device used after suit has been brought, the perpetuation of testimony is to be used in a limited fashion to preserve essential evidence that may be lost before it can be used in litigation. Plaintiffs have not adequately shown with specificity the particular evidence that is essential to preserve at this time, nor have they sufficiently shown that this evidence, particularly, documentary evidence, will not be available in the future.

As required by subsection (4) of LSA-C. C.P. art. 1429, plaintiffs have given the names and addresses of potential adverse parties.

Finally, plaintiffs have also supplied the names and addresses of the desired deponents, as required in subsection (5) of LSA-C.C.P. art. 1429. However, the requirement also compels plaintiffs to show the substance of the testimony to be elicited from each deponent. Plaintiffs have failed to particularize the substance of this testimony they wish to solicit from each. Again, specificity in the substance requested is required rather than a catch-all general request for plans, alternative leases, funding, discussions, and all other related matters.

LSA-C.C.P. art. 1431 confers on the trial judge broad discretion in determining whether the perpetuation may prevent a failure or delay of justice. See also Vaughn v. Commercial Union, supra. We find no abuse of that discretion in the instant case.

The judgment is affirmed.

AFFIRMED.

      . Vaughn v. Commercial Union Insurance Co. of New York, 263 So.2d 50 (La.App. 4th Cir., 1972), writs denied, 262 La. 1107, 266 So.2d 425 (1972).


author: BEER, Judge.

text:
    Giacomina AVEGNO v. Emory BYRD, Jr.
    No. 9780.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.
    Roy L. Price, Metairie, for defendant-appellant.
    Guy W. Olano, Jr., Kenner, for defendant-appellee.
    Before REDMANN, STOULIG and BEER, JJ.
   BEER, Judge.

On July 14, 1975, Giacomina Avegno (vendor) and Emory Byrd, Jr. (vendee) made an agreement to purchase certain real property. Byrd then gave Avegno’s agent, Sloan, a deposit in the form of a demand promissory note in the amount of $10,400. The agreement provided that the act of sale was to be passed before September 1, 1975. Prior to the act of sale (scheduled for August 29, 1975), Byrd notified Avegno’s agent that he was unable to obtain financing because the title to the property was unmerchantable. Cancellation of the sale resulted in this suit being filed on the agreement to purchase and on the demand promissory note by the vendor who had become the holder thereof. Byrd, as defendant in the suit on the note, counter claimed against third-party-defendant Doris Hebert, Realtor (Avegno’s agent and Sloan’s employer), for damages resulting from the alleged bad faith negotiation of the note to Avegno in violation of Louisiana Real Estate Commission regulations authorized by LRS 37:1436. Those regulations regarding funds held in trust by realtors provide as follows:

“14(e) Monies received and deposited in escrow (trust) accounts shall be removed and/or disbursed therefrom only upon:
1. Mutual consent of buyer(s) and sellers);
2. Court Order.”

The main demand was dismissed and judgment was rendered in favor of Byrd and against Doris Hebert, Realtor in the sum of $3,500.

Doris Hebert, Realtor appeals alleging error in the award of damages and the finding that the negotiation or surrender of the note to Avegno was an actionable breach of trust. In written reasons, the able trial judge noted that surveys showed the property to be suggestive of litigation, thereby voiding the agreement to purchase. Thus, the trial court concludes that the agent’s unilateral endorsement and surrender of the deposit note to Avegno without Byrd’s consent was an actionable breach of trust. Finally, the trial court determined that such breach entitled Byrd to a judgment for damages based upon his expenses resulting from the litigation, which the court set at $3,500.

While the propriety of Doris Hebert, Realtor’s action in surrendering the note to Avegno may be questioned, it did not enhance Avegno’s rights nor prejudice the position of Byrd since the suit which Aveg-no filed against Byrd, though referring to the note as being due and owing, fairly alleges the basis thereof as breach of contract.

Thus, it is apparent from the pleadings that the suit by Avegno against Byrd was not, in fact, based on non-payment of a promissory note but was a suit alleging breach of a contract to purchase. Under these circumstances, we find no statutory or contractual basis upon which we are empowered to affirm an award of damages in favor of Byrd, notwithstanding our ac-knowledgement that the record supports the conclusion reached by the able trial judge that Byrd was obliged to expend approximately $3,500 (the amount awarded) in defending the litigation with which we are here concerned.

Even so, we find merit in Byrd’s contention that the actions of Doris Hebert, Realtor are subject to criticism and are in apparent violation of Regulation 14(e) of the Louisiana Real Estate Commission. Accordingly, though we must, for the foregoing reasons, reverse, we do so at appellant’s cost.

The judgment is reversed. Byrd’s third party claim against Doris Hebert, Realtor is dismissed. All costs of this appeal and attributable to the third party demand are taxed against Doris Hebert, Realtor.

REVERSED AND RENDERED.

      . On the day before or the morning of the day scheduled for the passage-of the act of sale, both the realtor and the notary were notified by mailgram by defendant that he would not accept title because of his inability to procure financing and because the title to the realty was unmerchantable. He also demanded the return of his promissory note.


text:
    Mrs. Clare GRAY, wife of Hugh Pierce Champagne v. Hugh Pierce CHAMPAGNE.
    No. 9783.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.

      Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for plaintiff-appellee.
    Charbonnet & Charbonnet, Jack J. Char-bonnet, Kenny M. Charbonnet, New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and BEER, JJ.
   STOULIG, Judge.

This is an appeal by Dr. Hugh Champagne from a judgment awarding $1,100 monthly alimony to his separated wife, Clare Champagne, and $1,200 monthly for the support of his three minor children. In addition he is required to pay all medical and drug expenses incurred for the children’s benefit.

Mrs. Champagne itemizes her monthly expenses at $4,179.75 and Dr. Champagne does not seriously challenge this figure. The award does not cover what we consider to be basic expenses. To illustrate, the house note is $645; utilities, $180; insurance, $200; automobile note, $246; children’s tuition, $341.75; clothing, $425; and groceries, $450. These items, which do not include the entire list, total $2,487 and the award is for $2,300.

Dr. Champagne urges on appeal his income for 1977 was approximately $30,000 per annum and the award of $27,600 does not leave him a sufficient amount to maintain himself. He testified he requires approximately $1,200 per month for his own needs.

Dr. Champagne produced a 1976 income tax return that indicates his gross fees from the practice of dentistry totaled $139,442 and his net fees for that year were $34,211. Although his 1977 income tax return was subpoenaed, his attorney stated in the return on the subpoena duces tecum: “* * * The only thing that we cannot comply with was the 1977 Federal Income Tax return which is still under audit and preparation by Dr. Champagne’s C.P.A. * * *yy

Without Dr. Champagne’s 1977 business records, we can only speculate as to what his income was for that year. Mrs. Champagne testified that while they were still married they had twice consulted a C.P.A. who had budgeted their personal monthly expenses at $4,000. When Dr. Champagne was questioned on this point, he seemed not to understand the question although it was repeated twice.

Dr. Champagne testified his net income would decrease from the $34,211 of 1976 by approximately $4,000 in 1977. If his testimony is accepted at face value, this award would pauperize him. However, we find no error in the trial judge’s disregard of this income estimate.

While it may be true that on March 8 the accountant had not prepared the 1977 tax return, it was within defendant’s capacity to produce his business records and establish his 1977 income through the testimony of his C.P.A. In Moore v. Natchitoches Coca Cola Bottling Co., 32 So.2d 347 (La. App. 2d Cir. 1947), the court pointed out that every litigant is expected to produce the best and strongest evidence obtainable in presenting his case, and should not expect a court to accept his own testimony on a point that might be more accurately established through an expert.

In 1976, Dr. Champagne reported on his federal tax return gross receipts of $139,-442, deductible expenses of $105,231 and a net income of $34,211. He admitted that his 1977 expenses would not include a $13,-593 deduction for outside help that he had available to him in 1976. He also conceded he could earn more money if he elected to work a 5-day rather than a 4V2-day week.

The record before us has insufficient evidence to determine with any degree of accuracy the disposable income of Dr. Champagne at the time of this hearing and its nonproduction is attributable to' appellant. Apparently the trial court concluded that Dr. Champagne was modest in stating his income and that he was capable of paying $2,300 per month.

C.C. art. 148 authorizes a trial judge to fix alimony pendente lite “* * * proportioned to her needs and to the means of her husband.” In fixing the amount the needs of the wife and children have been defined as a total amount sufficient to maintain her and her children in a standard of living comparable to that which they enjoyed prior to separation limited only by the husband’s ability to respond. Thomas v. Thomas, 281 So.2d 471 (La.App. 4th Cir. 1973); Cabral v. Cabral, 245 So.2d 718 (La.App. 4th Cir. 1971). The amount awarded is within the sound discretion of the trial judge and will not be altered on appeal unless the record clearly establishes an abuse of discretion. Staser v. Staser, 347 So.2d 514 (La.App. 2d Cir. 1977). The record does not warrant the finding that the trial judge abused his discretion.

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

AFFIRMED.


author: PER CURIAM.

text:
    Peggy FRANCIS v. Robert LUCIEN.
    No. 9785.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for plaintiff-appellant.
    Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for defendant-appellee.

      Before REDMANN, STOULIG and BEER, JJ.
   PER CURIAM.

Pretermitting, for the purpose of this opinion, any consideration of the fact that the judgment of partition appears to have been approved by counsel of record for both parties prior to its being read, rendered and signed by the district judge, we find no merit in appellant’s argument that the judgment, which decrees a partition of the community property heretofore existing between the parties, is in error. Appellant’s contention that the district judge is required to appoint an auctioneer and a notary concurrently with a judgment simply decreeing the partition is unsupported and, in our view, erroneous. Those appointments, if necessary, (and other questions such as whether any given asset must be partitioned in kind or by licitation) may be handled by supplementary proceedings. The judgment of the Civil District Court for the Parish of Orleans is affirmed, at appellant’s cost.


author: SCHOTT, Judge.

text:
    Richard J. ZIMMER, Jr. v. Susan LAVISTA, wife of Richard J. Zimmer, Jr.
    No. 9798.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Finkelstein, Rakosky & Zatzkis, Lanny R. Zatzkis, New Orleans, for plaintiff-appellant.
    Grant & Barrow, Ernest E. Barrow, II, Gretna, for defendant-appellee.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

On February 23, 1973, plaintiff, Richard J. Zimmer, Jr., obtained a judgment of separation against his wife. She was awarded custody of their three minor children, Richard, then 10, Brandt 8, and Amber 5, and child support in the amount of $100 weekly. In March, 1974, plaintiff obtained a divorce and the same custody and support arrangements were continued.

In July, 1974, defendant moved for increase in child support payments, alleging that her monthly expenses for the support of the children amounted to $664 per month. A consent judgment in August, 1974, increased child support to $120 per week.

In October, 1975, plaintiff moved for a reduction in child support and defendant moved for an increase. It was established at the trial that defendant’s income had increased from $2200 per year to $8100 a year since she had become employed as a school teacher by the Jefferson Parish School Board. But the court dismissed both rules maintaining support at $120 per week.

Again in October, 1976, plaintiff ;moved to decrease child support but after a trial in October, 1976, the rule was dismissed.

In October, 1977, the parties agreed to a consent judgment transferring the custody of the children to plaintiff and terminating' the child support payments he was making to defendant.

In January, 1978, plaintiff moved for child support against defendant, and following a trial on April 28, 1978, the court awarded plaintiff a judgment against defendant for child support in the amount of $50 per month with the stipulation “said sum to become due and payable beginning one (1) month after all debts incurred by Susan Lavista Zimmer on behalf of the children of her former marriage to Richard J. Zimmer, Jr., have been liquidated,” From this judgment, plaintiff has taken, this appeal seeking an increase in the award.

We were initially concerned with the wording of this judgment in that it appeared to be indefinite, but considering the statement by both counsel that the debts referred to in the judgment are now paid, any question about the form of the judgment is now moot.

Plaintiff testified that his annual income is approximately $21,000. He produced figures to show that the expenses he incurs for his three children are in excess of $1,000 per month. He is remarried and has living in his home his present wife’s two children by a previous marriage. His present wife receives $270 per month from her previous husband for the support of her children.

Defendant lives alone and had an income of $11,482.42 in 1977. She produced figures to show that she spent $846 for her own support, but this included some $316 she was paying on the previous debts which are now paid.

Plaintiff’s testimony as to his child support expenses was reasonable and his figures were consistent with those offered by • defendant at the trial of one of the previous rules in October, 1976, to show that she required in excess of $900 to support these children at that time.

The obligation to support children born of a marriage is shared by the mother and father, LSA-C.C. Art. 227. In this situation where the needs of the children are in excess of $900 it was an abuse of discretion for the trial court to condemn defendant to pay only $50 per month, leaving plaintiff to pay the remainder and to provide the in home nurture and support for the children.

However, we reject plaintiff’s contention that the amount of the award for child support should be mathematically proportioned to her salary’s percentage of the total income of the parties. This contention ignores many factors which are not susceptible to computation with mathematical exactitude, including an amount every individual needs for basic living expenses before reaching a point where there is some disposable income. Considering all pertinent factors, including the present family position of plaintiff, we have concluded that $250 is an appropriate amount of monthly child support to be paid by defendant who does not have custody of the three children.

Accordingly, the judgment appealed from is set aside and there is judgment in favor of plaintiff, Richard J. Zimmer, Jr., and against defendant, Susan Lavista Zimmer, condemning her to pay to plaintiff the sum of $250 per month as child support for and in behalf of the minor children of the marriage, said sum to become due and payable on the first day of the month following the date when the judgment of this court becomes final. Each party will bear his or her own court costs.

REVERSED AND RENDERED.


text:
    Lawrence ROY et al. v. James D. SCHNEIDER et al.
    No. 9799.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.

      J. Terrell Heath, New Orleans, for plaintiffs-appellants.
    David M. Packard, New Orleans, for defendants-appellees.
    Murphy & Simon, David T. Bowman, New Orleans, for third party defendant-ap-pellee, Lawrence Roy.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

The appeal by plaintiffs in this automobile accident case questions the jury verdict as to (1) the finding that plaintiff-driver Nancy Roy was concurrently negligent with defendant-driver James Schneider in causing the collision and (2) the adequacy of the award to plaintiff-passenger Alfrieda Tardieff. Since the judgment also granted. Schneider’s third party demand for contribution against Mr. and Mrs. Roy, the Roys’ appeal also raises the issue of the propriety of the judgment on the third party demand.

Liability

The mid-morning accident occurred oh a clear, dry day on the Service Road of the Westbank Expressway in Gretna, near the Oakwood Shopping Center. The following sketch has been compiled from information in photographs and testimony in order to facilitate explanation of the positions of the two vehicles prior to the movements which resulted in-the accident:

Diametrically opposed versions of the facts leading up to the accident were related by the two drivers.

Mrs. Roy testified: She had stopped for a red light and was first in line in the left lane. After the light turned to green, she started off, intending to cross the Expressway completely and to turn left onto the Service Road. (A motorist could not go straight after crossing the Expressway, but had to turn left or right onto the Service Road.) About the time she reached the traffic island on the Oakwood edge of the Expressway and was beginning the curving maneuver into a left turn, Schneider (who had been stopped for a stop sign) pulled out directly into her path. She attempted to blow her horn and apply her brakes, but could not avoid a collision. The front of her car struck Schneider’s left front door.

Mrs. Roy’s version was completely corroborated by the testimony of Mrs. Tardieff, the passenger.

On the other hand, Schneider testified: He was driving toward the New Orleans bridge on the Service Road and had stopped for the stop sign, intending to make a left turn and to cross the Expressway. He waited at the stop sign, because two or three cars were stopped near the traffic island, and since there was no room for his car at the island, he could not move from the stopped position without blocking the path of traffic coming from the Expressway onto the Service Road. The distance from the stop sign to the island was about 30 feet. After the light turned to green a motorist behind him blew the horn, and he moved forward slowly. He first saw Mrs. Roy “(s)hortly after I left the stop sign and I expected her to come to a stop, because I was in a moving line of cars and I kept watching her, and when she didn’t come to a stop, I was amazed, so I came to a stop myself”. When he brought his car to a complete stop, Mrs. Roy also “came to a complete stop within about twelve inches of my driver’s side door, and then eased into the side of my car”. (Emphasis supplied)

Schneider’s own testimony convicts him of negligence. If he was moving continuously (until just before the impact) over the 30-foot space between the stop sign and the traffic island, he clearly violated Mrs. Roy’s right of way by entering her path without affording her adequate opportunity to avoid a collision. Schneider’s moving from the stop sign at a time when it was obviously unsafe to do so was therefore a legal cause of the accident.

Defendants argue, however, that Mrs. Roy was contributorily negligent because the jury rejected her version, probably on the basis of her testimony that she was traveling 20 to 25 miles per hour at impact, a fact belied by expert evidence that the force of impact was only about two miles per hour.

A fair reading of Mrs. Roy’s testimony suggests that she estimated she attained a speed of roughly 20 to 25 miles per hour while crossing the expressway and was not sure whether her attempted braking had taken effect prior to impact. However, even if the jury rejected her entire testimony on the basis of this possible mistake about speed at impact, the penalty for unaccepted testimony is not automatic liability; rejected testimony is simply accorded no weight.

Defendants had the burden of proving Mrs. Roy’s negligence. If Mrs. Roy’s testimony is disregarded, the remaining testimony nevertheless fails to establish negligence on her part. Schneider’s own testimony indicates Mrs. Roy was faced with a sudden emergency of his making and establishes at best that she almost avoided the consequences of the emergency he created by successful braking, with only a slight impact resulting.

This record does not provide support for the jury’s finding of negligence on Mrs. Roy’s part, and that finding is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Mrs. Tardieff’s Damages

After the September 24, 1976 accident Mrs. Tardieff consulted Dr. L. J. Clanton on October 1. He found a slight contusion of the rib cage and spasm, tenderness and motion limitation of the lumbar spine. He prescribed medication, bed rest, heat applications and physical therapy. She responded well to treatment so that by mid-November the rib contusion had completely resolved, and there was only slight spasm and slight limitation of motion of the lumbar area, which continued through December. On January 14, 1977 she was asymptomatic and was discharged.

She did not miss any work as a cashier in a department store. Her total medical bill was $340.00, including $35.00 for a medical report (making net recoverable expenses of $305.00).

The jury rendered a general verdict of $305.00. Since this was the exact amount of recoverable medical expenses (and the jury was instructed that the charge for the medical report was not recoverable), plaintiffs argue the jury erred in failing to grant any award for pain and suffering. On the other hand, defendants contend that the lump sum jury award can reasonably be construed as representing a finding by the jury that all of the medical expenses were not necessitated by the accident, so that the total award represented part of the medical expenses, plus an amount for pain and suffering.

When a jury award is itemized by the use of special interrogatories directed to each item of damage claimed, the appellate court separately reviews the evidence as to each item and’ may correct an error as- to any item, without regard to the correctness or error as to any other item of damage. Blancher v. Samuels, 354 So.2d 213 (La.App. 4th Cir. 1977), cert. den. 355 So.2d 257, 263. Therefore, had the jury itemized its verdict and awarded $305.00 for medical expenses and nothing for pain and suffering, there would be an obvious error of law to be corrected by this court. Robinson v. General Motors Corp., 328 So.2d 751 (La.App. 4th Cir. 1976).

However, when there is a lump sum verdict in a tort case involving claims for several items of damage, an appealing party has difficulty in demonstrating the jury’s intention to award a specific amount for any particular item. Thus, in Campbell v. Chatelain, 286 So.2d 799 (La.App. 4th Cir. 1973) the court rejected a contention that ¿ low general verdict necessarily indicated the jury's rejection of a proved claim for future medical expenses, when the lowest amount possibly proved for medical expenses was not so significant in comparison to the total award as to compel the conclusion that the jury failed to include this item in the total award. And in the Robinson case this court in dicta observed that if the itemized award had been in the same total amount, but in an unitemized form of general verdict, the overall amount may have been construed as being within the much discretion accorded to the jury.

No precise rule can be formulated to review general verdict cases; each must be decided on its particular facts and circumstances.

In the present case it is arguable that the jury within its discretion intended to award perhaps $105.00 as the approximated cost of medical consultation and treatment made necessary by the accident and perhaps $200.00 for pain and suffering. However, the precise award of an odd amount ($305.00), which happens to be the exact amount of recoverable medical expenses, indicates more probably that the jury intended to compensate Mrs. Tardieff for those expenses. Moreover, while both plaintiffs were perhaps less than candid in their testimony as to the severity of their injuries, the doctor found some objective symptoms of injury until the dates of discharge, and there was no suggestion of overtreatment. Finally, the trial judge in denying an application for a new trial suggested that the case would be handled more expeditiously if the “clearly inadequate” award were corrected on appeal rather than by submission to another jury at a new trial.

Under the overall circumstances of this case we conclude that the jury failed to grant any award for general damages. This omission constitutes an error of law and must be corrected on appeal. However, balancing the facts of the slightness of the impact and the jury’s apparent rejection of Mrs. Tardieff’s testimony as to the severity of her injuries with the facts that the doctor classified the injury as moderately severe and that she exhibited objective symptoms for more than three months, we set the award for general damages at $1,250.00.

Mrs. Roy’s Damages

Mrs. Roy consulted Dr. Clanton on September 29 (two days before her sister, Mrs. Tardieff). He found tenderness, spasm and motion limitation in areas of the cervical and lumbar spine and placed her on a regimen of heat, bed rest, physical therapy and medication. She responded well and gradually improved until she was asymptomatic in January, 1977, at which time she was discharged. Her medical bill was $315.00. An award of $1,750.00 for pain and suffering and $315.00 for medical expenses is adequate compensation, based on the overall record in this case.

Decree

The judgment of the trial court as to Mr. and Mrs. Lawrence Roy is reversed, and it is now ordered that judgment be rendered in favor of Mr. and Mrs. Lawrence Roy and against James Schneider and Continental Insurance Company in the amount of $2,065.00, with legal interest from the date of judicial demand, and all costs of these proceedings in both courts. The judgment on the third party demand for contribution by James Schneider and Continental Insurance Company against Mr. and Mrs. Lawrence Roy is also reversed, and the demand is dismissed. The judgment as to Mr. and Mrs. Walter Tardieff is amended to increase the award by $1,250.00 and is affirmed as amended.

REVERSED AND RENDERED IN PART, AMENDED AND AFFIRMED IN PART.

      . An expert engineer inspected Schneider’s door and found only a small dent, 3‘A inches deep and 4'A inches long. The window, the lifting mechanism and the door latch were all operable, and the door chrome was still in place and not significantly damaged.
      The total damage to Schneider’s car was stipulated to be $179.17. Mrs. Roy admitted there was virtually no damage to her vehicle.

      . Of course, when the jury grants an award in some amount, it is evident the jury concluded the claimant sustained some injury caused by the accident. Therefore, as held in the Robinson case, a jury cannot award the special damages incurred in an accident and refuse to award any amount for general damages.

      . The court also noted the value to a reviewing court of an itemized award (by either judge or jury) under these circumstances.