author: WATSON, Judge.

text:
    FIDELITY & GUARANTY INSURANCE COMPANY, Plaintiff-Appellee, v. CENTRAL PLUMBING & HEATING COMPANY et al., Defendants-Appellants.
    No. 5683.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.

      Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, for defendants-appellants, Central Plumbing.
    Neblett, Führer & Broussard by Leonard Führer, Alexandria, for plaintiff-appellee, People’s Furniture.
    Gravel, Roy & Burnes by Christopher J. Roy, Alexandria, for plaintiff-appellee, Gus Kaplan, Inc.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendants-appellants.
    McLure & McLure by John G. McLure, Alexandria, for defendant-appellee.
    Stafford, Randow, O’Neal & Scott by John W. Scott, Alexandria, for plaintiff-ap-pellee.
    Before HOOD, CULPEPPER and WATSON, JJ.
   WATSON, Judge.

This is one of four lawsuits involving damages occurring during a wind and rain storm in Alexandria, Louisiana, on or about December 2, 1973. All were consolidated for a lengthy jury trial and this appeal. A metal cowl or vent cover on the roof of the Piccadilly Cafeteria was blown loose and rolled over the roof of the Alexandria Mall, puncturing the roof in at least two places. Water damage resulted to the merchandise owned by Gus Kaplan, Inc. and Peoples Shoe Stores, Alexandria Mall, Inc., two other tenants of the mall. Plaintiff, Fidelity & Guaranty Insurance Company, brought this suit, docket # 5683, to recover its subrogation claim of $20,517.30, which it paid its insured, Gus Kaplan, Inc.

In docket no. 5684, Massachusetts Bay Insurance Company v. Central Plumbing & Heating Company, et al, the insurer of Peoples Shoes, Alexandria Mall, Inc., sued to recover its subrogation claim of $13,291.43.

In docket no. 5685, Peoples Shoes sued to recover damages, over and above the amount paid by its insurer, for:

. loss of merchandise, loss of profit on ruined merchandise, loss of profit on related merchandise, loss of services of employees, disruption of business operations, cost of repairs, loss of good will and commercial reputation, damage to credit reputation and loss of interest on borrowed money, . . . ”

In docket no. 5686, Gus Kaplan, Inc. sued to recover damages, over and above the amount paid by its insurer, for:

“. . . loss of merchandise, loss of profit on ruined merchandise, loss of profit on related merchandise, loss of services of employees, disruption of business operations, cost of repairs, loss of good will and reputation.”

Separate opinions have been rendered this date in the other three cases, but all issues will be discussed in this case which bears the initial docket number, and which contains the transcript of trial testimony.

Defendants herein are Central Plumbing & Heating Company, a commercial partnership between Leroy and Jimmie B. Guinn, which installed the vent cover; Central’s liability insurer,' Hartford Fire Insurance Company; the partners individually; Piccadilly Cafeteria, Inc.; a division of Piccadilly known as National Construction Company; Louisiana Investors of Delaware, Inc., owner of the mall; Aetna Casualty & Surety Company, the liability insurer of both Piccadilly and Louisiana Investors; Tudor Construction Company, general contractor for construction of the mall; and Tudor’s insurer, American Employers Insurance Company.

Central, the Guinns and Hartford will sometimes be referred to collectively as “Central”.

The parties filed third party demands and other pleadings, many of which are not pertinent to these appeals.

In the instant suit, judgment was rendered in favor of plaintiff Fidelity against: Central; the Guinns, individually; Hartford; Piccadilly, doing business as National Construction Company; Aetna; and Louisiana Investors, in solido, for $20,517.30. Louisiana Investors was given judgment over against Central. Central was given judgment over against Piccadilly, d/b/a National Construction, and Aetna, in solido, for one-half of the indemnity to Louisiana Investors. Costs were taxed one-half against Central and one-half against Piccadilly and Aetna.

The jury assessed the damages due Peoples Shoes, Alexandria Mall, at $36,896.37. The jury also awarded $13,291.43, the amount stipulated, to Peoples’ insurer, Massachusetts Bay Insurance Company. Ka-plan’s damages were assessed at $55,777.30. The jury also awarded $20,517.30, the amount stipulated, to Kaplan’s insurer, Fidelity.

The trial court denied remittitur or a new trial, finding the jury had sufficient evidence on which to award the damages assessed.

Central has appealed in all four suits, contending that:

(1) the jury erred in finding negligence by Central;
(2) the trial judge erred in failing to instruct the jury as to the proof necessary to recover loss of profits, and in failing to instruct that the award should be limited to net rather than gross profits; and
(3) the awards are manifestly excessive.

Louisiana Investors, Piccadilly and Aetna have also appealed, adopting specifications of error two and three above and alleging, in addition, that the trial court erred in failing to:

(1) properly apportion liability;
(2) require production of business records substantiating the claims of loss of business; and
(3) reduce the awards.

Peoples has answered the appeal in docket number 5685, asking that its award be increased from $36,896.37 to $100,000 to include loss of associated profits, loss of employees’ services, disruption of business operations, loss of goodwill and commercial reputation, damage to credit reputation and loss of interest on borrowed money.

The jury concluded that Central and National Construction Company were negligent. Piccadilly, Louisiana Investors and Tudor were found free of negligence by the jury, but Piccadilly and Louisiana Investors were held responsible under the principle of strict liability. The jury decided that Louisiana Investors was entitled to full reimbursement or indemnity from Central for its share.

Certain matters were not submitted to the jury but tried only to the trial judge. In his reasons for judgment, the trial court related the facts, some .of which are as follows:

“. . . Tudor Construction Company constructed for Louisiana Investors the connecting hallways and the shells of the spaces to be leased out which included the roof of the entire complex. Each tenant, including Peoples, Gus Ka-plans and Piccadilly, constructed its own interior including its own air conditioning and heating systems. Roof penetrations were made by the tenants or their contractors.
“Piccadilly Cafeteria, Inc. did its own construction work but, for that purpose, assumed a trade name which it referred to as a division of Piccadilly Cafeteria, Inc/ This division was known as National Construction Company. National Construction contracted with Central Heating and Plumbing Company for certain work on the cafeteria location in the Mall. This work included installation of a cowl or metal covering over an air-intake vent located on the roof above the cafeteria. This work was done several months prior to December 1973.
“On or about December 2, 1973, a rain storm accompanied by wind occurred in Alexandria. The vent covered [sic] in question blew off and damaged the roof including penetrations in more than one place. Water entered the penetrations and emptied into the store room of Peoples and the show room of Gus Kaplans, Inc. Considerable merchandise in both stores was ruined. The insurers of each concern paid the cost of the merchandise lost and they became subrogated for the damage claims against those responsible.” (Tr. 133)

The trial court decided that National Construction Company is not a separate entity but another name for Piccadilly Cafeteria, Inc., making the liability of Piccadilly and National that of one party, not two. The trial court concluded that Central, Piccadilly and Louisiana Investors were liable in solido. A third party demand of Louisiana Investors against Central was found to state a cause of action. Piccadilly contended that Central must indemnify Louisiana Investors for its one-third share of the damages, leaving Piccadilly responsible for one-third and Central for two-thirds. Central contended that the liability was one-half to Piccadilly and one-half to Central with the one-third owed by Louisiana Investors being split equally between them. The trial court adopted the latter argument and concluded that there should be an equal apportionment of the damages between Piccadilly and Central.

Thus, on the basis of the facts, the judgments and the specifications of error, there are three issues which must be decided on appeal. These are:

(1) whether the jury’s conclusion that Central was negligent is manifestly erroneous;
(2) whether the trial court correctly instructed the jury as to the proof necessary for Peoples and Kaplan’s to recover loss of profits and whether the amounts awarded are excessive or inadequate; and
(3) whether the trial court properly required Piccadilly to share equally with Central in indemnifying Louisiana Investors.

I. The first issue is whether the jury’s conclusion that Central was negligent is manifestly erroneous.

Central contends that the cowl, which measured approximately six feet by four feet, with a depth of 14 inches, was removed and not re-anchored by other parties, who were finishing the roof, between the initial installation and the date of the accident. While there is testimony from Central’s employees that supports this contention, it is far from convincing.

There is no question that installation of the cowl or vent cover was Central’s responsibility. National Construction Company sub-contracted all of Piccadilly’s plumbing, air conditioning and heating, as well as the accessory duct work and vents, to Central. Central had a legal duty under the contract with National Construction to properly install the vent cover or cowl. Lon S. Heuer, an architect and expert in shopping center design, testified that failure to attach an air intake cover such as this would not be an acceptable practice in the building industry.

Homer Roberts, general foreman of Central’s sheet metal department, said that the cowl was put on “temporarily” on instructions from the job superintendent for National Construction, William Reese. Reese was no longer employed by National Construction at the time of trial and could not be located to testify. Although Roberts’ testimony on this point was uncontradicted, he admitted that no effort was made to follow-up what he termed the temporary attachment with a permanent one. He further admitted, under cross-examination, that nothing was said by Reese which relieved Central of the responsibility for permanent attachment of the cowl.

All of Central’s witnesses insisted that they initially nailed the cowl in place. Roberts, who admitted Central put in on “temporarily”, said:

“. . . I did see that it was nailed on the first time.” (TR. 705)

Yet, the testimony as a whole indicates that the cowl was never nailed down until after the windstorm in December. Phillip L. Carney, project manager for Tudor, inspected the wooden curb around the vent opening after the accident and found no holes that would indicate the cowl had been nailed or screwed to the curb. Examination of the curb by a group prior to trial revealed that the only nail holes in the curb were six which were made after the windstorm. The group included: Geoff ery Donald Baillie McIntosh, general manager of National Construction; Edward M. Kelly, maintenance engineer for Piccadilly; Pierre J. Gentile, general superintendent for National Construction; and Willie Louis Beau-champ, an Alexandria employee of Piccadilly. Weldon S. Honeycutt, superintendent for Tudor, said he observed some nail holes after the incident, but these could have been in the flange of the cowl. Carney found no holes in the curb after the windstorm but said some had been punched in the flange. Because of the roofing felt between the curb and' the flange it would have been impossible for Central’s employees to renail using the same nail holes if the roofing felt was put on after they first nailed down the cowl. One of them, J. C. Ward, who supervised the installation, admitted as much. Central’s employees said that the roof in the area was not finished when they first installed the cowl. There was ample other testimony from which the jury could conclude that the roof over the Piccadilly had been completed prior to the vent cover being put in place. Pierre J. Gentile, general superintendent for National Construction, testified that the roof above the Piccadilly had been completed before this vent opening was cut. Charles A. Viccinnelli, sub-contractor for the Mall roof, said the roof was finished and graveled before any penetrations were made in it. Willie Sloane, general foreman for Vic-cinnelli Roofing, testified that the vent cover was put on after the roofing work was completed. Simy Tate, also a Viccinnelli roofer, testified that roofers never move any of the cowls or other sheet metal appliances because this is solely within the province of sheet metal workers.

Not only does the evidence indicate that Central initially failed to secure the cowl, but its employees were unaware of the manufacturer’s instructions for installation printed on the underside, which prescribed lag screws or bolts every 14 inches. Viccin-nelli testified that lag screws or bolts, rather than nails, should have been used, because nails would loosen. Marion Chaney, a mechanical engineer, said ten screws or bolts should have been used to secure the vent cover.

The evidence shows no manifest error in the jury’s conclusion that Central was negligent and that the negligence was a legal cause of the damage to plaintiffs.

II. The second issue presented is whether the evidence justifies the amounts awarded and whether the trial court correctly instructed the jury as to the proof necessary for Peoples and Kaplan’s to recover loss of profits.

We will review briefly the evidence presented by plaintiffs on the issue of damages. Three witnesses, the assistant manager, an employee, and the owner, testified in behalf of Peoples.

Gary Ellis Maxwell, who was assistant manager of Peoples Shoe Store, Alexandria Mall, testified that when he came to work on Monday, December 3, 1973, the section of the store room containing women’s spring and holiday dress shoes was completely ruined as the result of water and debris from the ceiling and roof. Almost the entire stock of women’s dress shoes was affected, as well as some of the casual shoes. Maxwell turned away many dissatisfied ladies because of the lack of stock, which could not be replaced for the Christmas season. Referral to the downtown Peoples store was unsuccessful. The store also lost sales of accessory items such as matching handbags and hosiery. In Maxwell’s experience, at least sixty or seventy per cent of the ladies who buy shoes will also buy accessories to go with them, but the accessories do not sell alone.

Jerry Lynn Harp, an employee of Peoples Shoe Store for 27 years and manager of the mall store at the time of the accident, reiterated Maxwell’s testimony. Harp further said that the merchandise destroyed was all new, since the mall had just opened. Advertising during the Christmas period is primarily for ladies’ dress shoes, the store’s bestselling item. Business from the opening of the mall on August 1 until this incident had been “fantastic”. There were nine or ten other shoe stores in the mall where ladies’ shoes could be purchased. Christmas was normally a good season for sale of accessories, but coordinated handbag sales were completely wiped out as the result of the damage to the shoes. Handbag prices are approximately the same as shoe prices; handbag purchases comprise about 50% of shoe sales. Peoples is a family shoe store but the majority of the purchases were made by ladies. Sales of children’s shoes decreased because ladies did not come in to buy shoes for themselves and hence failed to purchase children’s shoes. Harp said many of the customers asked for him personally, and he lost goodwill because of his inability to service them.

Alvin Mykoff said that he had been in the shoe business with his father since 1951 when he graduated from college. They opened Peoples Shoes, Alexandria Mall, August 1, 1973. His father retained a 25% interest in the downtown store but the mall store was owned solely by the younger My-koff. Mykoff confirmed the testimony of Maxwell and Harp. Mykoff also said that none of the mall merchandise had been moved from the downtown store. Shoes had to be ordered between six and nine months in advance of delivery for a complete inventory. Payment is made within 30 days of delivery with 80% of Mykoff’s suppliers; a few concerns allow 60 days. In 1973, matching handbags and shoes were in vogue. This first Christmas season at the mall was heavily advertised. The normal mark-up for shoes and accessories is 50%. All of the costs, including utility bills, insurance premiums, advertising bills, salaries of employees, and interest on borrowed money, remained constant after this water damage. Overhead did not go down. Profit is generally higher during peak seasons such as Easter, back-to-school and Christmas. Cash flow during Christmas usually reduces Mykoff’s borrowing against Peoples’ $50,-000 bank line of credit, interest of 9V2 to 10% was being paid. After the accident, the credit line remained borrowed to the limit because cash was not coming in for reduction of the debt. This damaged My-koff’s credit and hindered subsequent business operations. The wholesale value of the shoes destroyed was $18,753.46 which was recovered from Peoples’ insurer. The retail value was $37,506.92. Mykoff said that all dollars beyond overhead would be profit.

As to the damages sustained by Kaplan’s, four witnesses, including the assistant manager, the manager, a CPA, and the majority stockholder, testified.

Robert Carroll testified that he was working at Kaplan’s in December of 1973 as an assistant to Gus Kaplan. On December 3, there was water damage in misses’ sportswear, junior sportswear, the receiving room, the lay-away room, the upstairs stock room and the lingerie department. Until the mess caused by the water, business had been terrific at the mall store.

Sidney Kaplan testified that he graduated from the University of Alabama and then worked at Foley’s Department Store in Houston to further his merchandising education. He later undertook management of Gus Kaplan’s in MacArthur Village, and, a year later, became manager of the mall store. The merchandise damaged was primarily merchandise for the Christmas season. It turns over rapidly, particularly the better sportswear. Misses’ outfits are composed of coordinate groups. If one coordinate is missing, sales of the matching items are also lost. Most sales are multiples; sixty per cent of the customers buy more than one item. The mark-up of the goods is 50%. A sidewalk sale was held for the damaged merchandise in February. Sales of that sort are not good, since the amount realized is minimal and you do not get customers into the store.

Roy K. Derbonne, Jr., a CPA, testified that his firm audits the records of Gus Kaplan, Inc. and he is chief auditor for the account. Kaplan’s 1974 fiscal year included the damage in December of 1973. From 1971 through 1975, Kaplan’s only year with a loss was 1974. The pre-Christmas season accounts for a fourth of Kaplan’s total volume of business. The $53,500 wholesale value of the goods damaged would have resulted in a gross of $80,816 if the average for the four profitable years was used and a gross of $78,331 if the five year average was used.

Gus Kaplan, majority stockholder in Gus Kaplan, Inc., testified that he is a business graduate of LSU with extensive merchandising experience. Kaplan found the damage to his newly opened store very disheartening. The year was a big one for sportswear and pants with few sales of dresses. The merchandise damaged was fast-moving stock, which had been ordered six to eight months before. There was a delay in the damaged merchandise being picked up, but goods with a wholesale value of $25,014.49 were eventually picked up by Tudor and Kaplan was paid for this merchandise in June, 1974. Kaplan felt the sidewalk sale reflected on his store. Fifty to sixty per cent of the retail sales of this merchandise would have resulted in accessory or related sales. Kaplan’s only year of loss in his business history was the fiscal year of the damage when he lost $174,000.

Appellants contend that Peoples and Kaplan are only entitled to recover the wholesale cost of the damaged goods, or, at most, the wholesale cost plus a 10% profit. This argument overlooks the fact that all of the overhead of the two stores continued after the accident. Since the overhead of the two stores continued without alteration, any profit realized on the damaged merchandise would have been net profit. A merchant which sold all its goods at wholesale value and recovered only 10% in addition for both overhead and profit would obviously not continue long in business. The intangibles involved, such as loss of profit on associated sales, loss of customers because of lack of inventory, and disruption of the normal business routine with its adverse effect on customers, illustrate that these are damages which are particularly within the province of the trier of fact’s much discretion. LSA-C.C. art. 1934. The jury apparently believed the testimony that the merchandise lost by both stores was that which would have normally sold fast and well during the peak Christmas shopping season, when merchants do a large proportion of their total business.

Kogos v. Rittiner, 228 So.2d 62 (La.App. 4 Cir. 1969); writ refused 255 La. 245, 230 So.2d 93, is cited for the proposition that only net profits can be recovered. Ko-gos involved a situation where there was:

“. . . the ultimate virtual destruction of plaintiff’s business . . . .” 228 So.2d 64

That situation, where a business was virtually destroyed and the lost income was projected without evidence as to what the overhead would have been, is entirely different from this. Here, all overhead continued in full. Any profit which would have been realized by Kaplan’s and Peoples on the damaged merchandise would have been net profit. Kogos is also authority for the fact that damage to business and damage to reputation which are:

“. . . not susceptible of appraisal by any standard of measurement.” 228 So.2d 71

must be left to the discretion of the trier of fact.

This jury was correctly charged by the trial court that plaintiffs had the burden of proving by a preponderance of the evidence the damages caused by defendants’ fault; that such proof may be either direct or circumstantial and constitutes a preponderance when, on the whole, it shows the facts sought to be proved more probably true than not.

Kaplan’s overhead was unchanged because of this loss. If the jury accepted the average for four years, excluding the year of the loss, the damaged merchandise would have grossed $80,816. Kaplan’s insurer paid $25,014.49 and $6,684.50 was obtained from the sidewalk sale for a total of $31,-698.99. The loss in profits could have been evaluated at $49,117.01, which would have been a net rather than a gross because the overhead was constant. The jury’s award of $55,777.30 thus may include only $6,660.29 for additional factors. These could include the time of year when profits are higher; loss of sales of matching items; disruption of business; inconvenience to customers; loss of benefit from advertising purchased; or other intangibles.

The award of $36,896.37 to Peoples could have included lost profits of $18,753.46 on the damaged goods and the balance of $18,-142.91 could represent interest on borrowed money; damage to credit; loss of associated sales; damage to the store’s reputation; loss of goodwill; loss of benefit from advertising purchased and other intangibles.

The trial court pointed out in denying new trial or a remittitur that:

“The jury in this case was composed of an unusually intelligent and competent group of citizens.” (TR. 165)

The trial court went on to state that the equities involved were by no means simple, and concluded that the jury had ample facts on which to base the awards of damages. The fact that the trial judge has left a jury award undisturbed must be recognized and given weight. Cf. Jenkins v. Dixie Rental Tools & Casing Crews, Inc., 283 So.2d 271 (La.App. 1 Cir. 1973); writ den. 285 So.2d 542; Miller v. Chicago Insurance Company, 306 So.2d 355 (La.App. 3 Cir. 1975); affirmed 320 So.2d 134 (La., 1975).

The intangibles claimed by Ka-plan’s and Peoples are particularly within the province of the “much discretion” accorded the trier of fact by the Louisiana Civil Code. The amounts awarded are not manifestly excessive.

Likewise, the award to Peoples is not manifestly inadequate, as contended in Peoples’ answer to the appeal.

There is no abuse of the jury’s much discretion in the amounts of these awards.

III. The third issue presented is whether the trial court erred in deciding that Piccadilly must share with Central in the one-third indemnity to Louisiana Investors.

Piccadilly contends that Central must indemnify Louisiana Investors for its one-third share of the damages leaving Piccadilly responsible for one-third and Central for two-thirds. However, both Piccadilly, through its division, National Construction Company, and Central were found to be negligent by the jury. Louisiana Investors was found to be technically responsible under the principle of strict liability but free from negligence. The two tort-feasors whose negligence caused the injury to plaintiffs are liable in solido for the damages. Since Louisiana Investors is only constructively at fault, Louisiana Investors is entitled to indemnity from the two tort-fea-sors, Central and Piccadilly-National Construction Company. The trial court correctly decided that Piccadilly and Central must share the indemnity to Louisiana Investors. LSA-C.C. art. 2103; Loescher v. Parr, 324 So.2d 441 (La., 1976); Green v. Taca International Airlines, 304 So.2d 357 (La., 1974).

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs of this appeal are assessed against defendants-appellants.

AFFIRMED.

      . Tr. 15, Docket # 5685.

      . Tr. 8, Docket # 5686.

      . Due to the complexity of the issues and the multiplicity of parties, the trial court submitted special forms to the jury, pursuant to LSA-C. C.P. arts. 1811 and 1812, to facilitate the jury’s making findings as to the liability, if any, of the various defendants and as to the damages of the various plaintiffs.


source: Caselaw Access Project

license: Public Domain

text:
    MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff-Appellee, v. CENTRAL PLUMBING & HEATING COMPANY et al., Defendants-Appellants.
    No. 5684.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Gist, Methvin & Trimble, by James T. Trimble, Jr., Alexandria, for defendants-appellants, Central Plumbing.
    Neblett, Führer & Broussard, by Leonard Führer, Alexandria, for plaintiff-appellee, People’s Furniture.
    Gravel, Roy & Burnes, by Christopher J. Roy, Alexandria, for plaintiff-appellee, Gus Kaplan, Inc.
    Gold, Hall, Hammill & Little, by James D. Davis, Alexandria, for defendants-appellants.
    McLure & McLure by John G. McLure, Alexandria, for defendant-appellee.
    Stafford, Randow, O’Neal & Scott by John W. Scott, Alexandria, for plaintiff-ap-pellee.
    Before HOOD, CULPEPPER and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Massachusetts Bay Insurance Company, brought this suit to recover from the responsible parties $13,291.43 which it paid its insured, Peoples Shoes, Alexandria Mall, Inc.

Made defendants were Central Plumbing & Heating Company, a commercial partnership between Leroy and Jimmie B. Guinn; the partners individually; Central’s liability insurer, Hartford Fire Insurance Company; Piccadilly Cafeteria, Inc.; a division of Piccadilly known as National Construction Company; Louisiana Investors of Delaware, Inc.; Aetna .Casualty & Surety Company, the liability insurer of both Piccadilly and Louisiana Investors; Tudor Construction Company; and Tudor’s insurer, American Employers Insurance Company. All except Tudor and Tudor’s insurer, American Employers Insurance Company, have appealed from the judgment of the trial court awarding plaintiff, Massachusetts Bay Insurance Company, $13,291.43.

For the reasons assigned in our docket number 5683, Fidelity & Guaranty Insurance Company v. Central Plumbing & Heating Company et al., La.App., 339 So.2d 904 the judgment of the trial court herein is affirmed at the cost of defendants-appellants.

AFFIRMED.


text:
    PEOPLES SHOES et al., Plaintiffs-Appellees, v. CENTRAL PLUMBING & HEATING COMPANY et al., Defendants-Appellants.
    No. 5685.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, for defendants-appellants, Central Plumbing.
    Neblett, Führer & Broussard by Leonard Führer, Alexandria, for plaintiff-appellee, People’s Furniture.
    Gravel, Roy & Burnes by Christopher J. Roy, Alexandria, for plaintiff-appellee, Gus Kaplan, Inc.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendants-appellants.
    McLure & McLure by John G. McLure, Alexandria, for defendant-appellee.
    Stafford, Randow, O’Neal & Scott by John W. Scott, Alexandria, for plaintiff-ap-pellee.
    Before HOOD, CULPEPPER and WATSON, JJ.
   WATSON, Judge.

Plaintiffs, Peoples Shoes, Alexandria Mall, Inc. and Peoples Shoe Store, Inc., brought this suit to recover damages sustained by Peoples Shoes, Alexandria Mall, Inc., on or about December 2, 1973, when a vent cover blew off during a rainstorm, causing extensive damage to its merchandise. Defendants herein are Central Plumbing & Heating Company, a commercial partnership between Leroy and Jimmie B. Guinn; the partners individually; Central’s liability insurer, Hartford Fire Insurance Company; Piccadilly Cafeteria, Inc.; a division of Piccadilly known as National Construction Company; Louisiana Investors of Delaware, Inc.; Aetna Casualty & Surety Company, the liability insurer of both Piccadilly and Louisiana Investors; Tudor Construction Company; and Tudor’s insurer, American Employers Insurance Company. All except Tudor and Tudor’s insurer, American Employers Insurance Company, have appealed from the judgment of the trial court awarding plaintiff, Peoples Shoes, Alexandria Mall, Inc., $36,-896.37.

Peoples Shoes, Alexandria Mall, Inc. answered the appeal, asking that the award be increased to $100,000.

For the reasons assigned in our docket number 5683, Fidelity & Guaranty Insurance Company v. Central Plumbing & Heating Company et al., La.App., 339 So.2d 904, the judgment of the trial court herein is affirmed at the cost of defendants-appellants.

AFFIRMED.


text:
    GUS KAPLAN, INC., Plaintiff-Appellee, v. CENTRAL PLUMBING & HEATING COMPANY et al., Defendants-Appellants.
    No. 5686.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    William J. Doran, Jr., Baton Rouge, Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants.
    Russell E. Gahagan, Natchitoches, for plaintiff-appellee.
    Before HOOD, CULPEPPER and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Gus Kaplan, Inc., brought this suit to recover damages it sustained, on or about December 2, 1973, when a vent cover blew off during a rainstorm, causing extensive damage to its merchandise. Made defendants were Central Plumbing & Heating Company, a commercial partnership between Leroy and Jimmie B. Guinn; the partners individually; Central’s liability insurer, Hartford Fire Insurance Company; Piccadilly Cafeteria, Inc.; a division of Piccadilly known as National Construction Company; Louisiana Investors of Delaware, Inc.; Aetna Casualty & Surety Company, the liability insurer of both Piccadilly and Louisiana Investors; Tudor Construction Company; and Tudor’s insurer, American Employers Insurance Company. All except Tudor and Tudor’s insurer, American Employers Insurance Company, have appealed from the judgment of the trial court awarding plaintiff Kaplan $55,777.30.

For the reasons assigned in our docket number 5683, Fidelity & Guaranty Insurance Company v. Central Plumbing & Heating Company et al., La.App., 339 So.2d 904, the judgment of the trial court herein is affirmed at the cost of defendants-appellants.

AFFIRMED.


author: HUMPHRIES, Judge.

text:
    John C. SAVOIE et al., Plaintiffs-Appellants, v. FIREMAN’S FUND INSURANCE COMPANY, Defendant-Appellee.
    No. 5689.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writ Granted Feb. 3, 1977.

      Jones, Jones & Alexander by J. B. Jones, Jr., Cameron, for plaintiffs-appellants.
    Plauché, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendant-ap-pellee.
    Before CULPEPPER, WATSON and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

This is an appeal from a judgment denying the plaintiffs’ relief for damages for the death of their daughter.

The tragic and unfortunate accident befell the plaintiffs’ daughter, who was thirteen years and nine months, when she fell from a tractor driven by Edward LeBouef.

John C. Savoie (Savoie) and Edward Le-Bouef (LeBouef) were neighbors, good friends and first cousins. They both held public jobs and both owned property for small farming operations as a sideline. Being thus closely connected over the years, they helped one another quite frequently. It was more or less an understanding that when one or the other needed help that that one called upon the other and he responded. In keeping with this unwritten understanding, Savoie contacted LeBouef and advised him that he wished to cut hay the next day and would need his help. LeBouef came to Savoie’s place and the two were engaged in the cutting of hay by the use of a tractor to which was attached a bush hog. At the time of the accident they were from fifteen hundred to two thousand feet apart.

Savoie’s daughter, Johnette, had been off visiting but came home in the early afternoon. She came to the hay field and got on LeBouef’s tractor. This was a common occurrence. Savoie’s son had been riding on the tractor earlier. Johnette was standing on the running board or step while on the tractor. LeBouef had made one round with her in this position when, on the second round the tractor ran over one ant hill, approximately twelve to fifteen inches high, which tilted the tractor in one direction and then immediately ran over another ant hill, of a like height, which tilted the tractor in the opposite direction. This maneuver caused Johnette to be dislodged and thrown under the tractor and the bush hog. It occurred so fast that LeBouef was not able to stop the tractor.

This matter presents three issues: (1) Was LeBouef an employee of Savoie and thus covered by Savoie’s comprehensive personal insurance; (2) was LeBouef guilty of negligence; and (3) were Johnette and the plaintiffs free of contributory negligence.

Since we are convinced that Le-Bouef was not an employee, within the contemplation of the insurance policy, we will base our opinion on that issue and not address the issue of liability per se.

The arrangement that Savoie and Le-Bouef had was exceedingly loose. Each would help the other when help was needed, if the other were not otherwise occupied. Neither would be paid by the other. On this occasion, LeBouef was to receive no money but was to get some of the hay not needed by Savoie. He brought his own tractor and bush hog. Being experienced, he was not instructed by Savoie in any regard; he was free to leave whenever he desired.

Savoie had what is designated “Farmer’s Comprehensive Personal Insurance”. This policy is restricted to premises liability and covers the insured, his spouse and relatives or other persons under twenty-one in his care and any employee of any insured.

The pertinent provision of the policy regarding employee is as follows:

V. Persons insured
(c) Under coverages L and M, with respect to any vehicle to which this insurance applies, any employee of any insured while engaged in the employment of the insured.

The cases are legion that seek to define “employee”. Even though the term “employee” is difficult to define it does not follow, as contended by the plaintiff, that the policy should then be held to contain an ambiguous term and interpreted against the insurer and, ergo, plaintiff recovers. The role of the court was announced in Andrus v. Police Jury of Parish of Lafayette et al., 270 So.2d 280 (La.App., 3rd Cir., 1972) where the Court stated:

It is true that the use of words in the communication of intent is less than perfect, and that some misinterpretation however slight is invariably encountered. These normal shortcomings in communication do not however justify judicial rewriting of insurance policies when there is no real ambiguity. .

A leading case on this subject matter is Alexander v. J. E. Hixson and Sons’ Funeral Home et al., 44 So.2d 487 (La.App., 1st Cir., 1950). In that case, the plaintiff brought an action for workmen’s compensation benefits on the contention that he was an employee of the defendant and was injured during the course of his employment. The facts in the case were that the plaintiff owned and operated a floral business and the defendant owned and operated a funeral home, both in the town of Sulphur, Louisiana. The plaintiff and the manager of the defendant’s business entered into an agreement whereby one agreed to help the other in his business if that one was not too occupied with his own business. The help arrangement in that case was quite similar to the case now before the Court, except in the type of work performed. There, the Court held that there are four primary evi-dentiary factors to be considered in deciding the relationship of employer-employee, to-wit:

(1) Selection and engagement.
(2) Payment of wages.
(3) Power of dismissal.
(4) Power of control.

Based upon the above criteria the Court found that the relationship between Alexander and the defendant’s manager was “a reciproqal good fellowship agreement for mutual benefit”.

A policy of insurance must be interpreted as any other contract and we are admonished in how to interpret contracts or words in a contract by C.C. Article 1946.

Art. 1946. The words of a contract are to be understood, like those of a law, in' the common and usual signification, without attending so much to grammatical rules, as to general and popular use.

The trial Judge correctly analyzed the facts, interpreted the policy and applied the law to both as follows:

The use of the word “employee” in the definition of an insured must be given its ordinary and usual meaning, even in the construction of an insurance contract, despite the general rule that ambiguous terms must be construed against the in-
surer. When considering whether or not a person is an employee, it is generally understood that the power of control by the employer is the principle factor in determining if such relationship actually exists.
In the case of Alexander v. J. E. Hixson and Sons’ Funeral Home, 44 So.2d 487, a workmen’s compensation case, the Court held that a somewhat similar arrangement did not constitute an employer-employee relationship, and set forth several factors which should be considered in arriving at such conclusion.
In the present case, certainly Mr. Sa-voie had no right to exercise any control over the actions of Mr. LeBouef. No wages were paid to the latter, nor was there any agreement for wages or other compensation. They had no definite agreement with respect to what was actually being exchanged by the parties or the value thereof, nor was there any obligation between them in this connection.
All things considered, the Court does not believe that the relationship which existed between Mr. LeBouef and Mr. Savoie could in any reasonable sense of the word be deemed an employment relationship, which is required for Mr. Le-Bouef to have been an insured under the subject policy at the time of this unfortunate and tragic accident.

For the above reasons, the judgment of the district court is affirmed at the costs of plaintiffs-appellants.

AFFIRMED.

WATSON, J., dissents, being of the opinion there is coverage under the policy.


text:
    Johnny B. TURNER, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY et al., Defendants-Appellees.
    No. 5696.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writ Granted Jan. 14, 1977.

      Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.
    Before DOMENGEAUX, WATSON and HUMPHRIES, JJ.
   WATSON, Judge.

In this workman’s compensation case, an employee, who shot himself accidentally with a fellow employee’s gun in the employer’s parking lot, appeals from the trial court’s determination that the accident did not arise out of his employment. Plaintiff is Johnny B. Turner. Defendants are: Turner’s employer, The Town of Boyce, Louisiana; and its compensation insurer, United States Fidelity & Guaranty Company. After trial on the merits, the trial court ruled in favor of defendants and denied compensation benefits to plaintiff.

There is no dispute that plaintiff would be otherwise qualified to receive weekly compensation benefits in the amount of $65 per week, as well as medical benefits, if his accident were determined to be in the course of and arising out of his employment. The medical evidence in the record (see, particularly, the deposition of Dr. Lloyd G. Megison, a neurosurgeon of Shreveport, who testified that, by reason of the penetration by a bullet of the middle of the left side of the brain, plaintiff has permanent right hemiparesis) establishes total and permanent disability.

On February 17, 1975, the date of the accident, Turner was employed by the Town of Boyce in its utility department as a repairman, having various duties in connection with the electricity, gas, sewers and other services furnished by the municipality. At about 11:30 a. m., Turner and his superior, A. M. Coutee, the utility superintendent of the Town of Boyce returned from a job site to the Town warehouse or shop building; Turner went inside to work on some electrical materials and Coutee went into his office. Shortly thereafter, Coutee, Turner and three other employees, Shepherd, Mabry and Evans, walked outside to the parking lot, awaiting the noon whistle which customarily signaled the beginning of their lunch period. The warehouse and the parking lot are both owned by the Town of Boyce.

At this juncture, Evans produced a pistol which he had had inside the warehouse. Evans, also an employee of the town’s utility department, had taken the gun out of his car earlier that morning, had borrowed a can of “WD-40” from a police officer employed by the town, one Davion, and had cleaned his gun in the warehouse. As the men stood on the parking lot, the superintendent, Coutee, asked to see the gun and Evans gave it to him for inspection. Then Turner, the plaintiff, asked to see the gun and Coutee either handed it to him or put it down on a truck hood where Turner picked it up. Turner asked Evans for a cartridge. Evans gave Turner a cartridge and Turner put it in the gun. Some joking remark was made between Turner and Coutee about shooting out a street light or a light on top of the truck. Coutee, Evans, and the others present glanced away from Turner for some reason and, at that instant, the gun fired accidentally and struck Turner in the head, the bullet traversing a portion of his brain, but remarkably, failing to cause his death. Medical attention was obtained speedily and Turner received various treatments thereafter, although he remained, at the time of trial, totally and permanently disabled within the contemplation of the Louisiana Workmen’s Compensation Act.

No compensation benefits were paid so Turner initiated suit against the town and its compensation insurer. Defense of the suit was based on the theory that the accident did not arise out of and in the course of Turner’s employment. Turner also demanded penalties and attorney’s fees, contending that the insurer had failed, arbitrarily and capriciously, to pay benefits.

The applicable statute is LSA-R.S. 23:1031, which provides in paragraph one, as follows:

“If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated. * * *”

The trial court found the facts substantially as outlined above, emphasizing that, while the accident occurred on the employer’s premises and during the hours of the employee’s work day, Turner was not required to use or be exposed to a gun in performing his duties. Then, relying principally on its analysis of Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La., 1973), the trial court concluded, as we read the assigned reasons, that the accident occurred during the course of employment but did not arise out of it and was not compensable.

The issues to be decided on appeal are:

(1) whether the accident occurred in the course of the employment;

(2) whether the accident arose out of the employment; and

(3) if benefits are due, whether plaintiff is entitled to penalties and attorney’s fees.

LSA-R.S. 23:1031, quoted in pertinent part above, is couched in general terms and details no criteria for measuring “in the course of” and “arising out of” employment. Therefore, we must examine the jurisprudence and the doctrine to obtain assistance in resolving the issues.

The first question, whether the accident was during the course of employment, is answered easily under the long-established rule that an accident is in the course of employment when it occurs during the hours of employment at a place contemplated by the employment. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La., 1973). In the present case, Turner was within the hours of employment. His supervisor and others testified that the noon whistle had not yet blown when the accident occurred. It is undisputed that the hours of employment were from 8:00 a. m. to 12:00 noon and from 1:00 p. m. to 5:00 p. m. The accident occurred at a place reasonably contemplated by the employment, that is, the parking lot owned by the Town adjacent to the utility warehouse. There was agreement among the witnesses that, if the employees concluded their duties prior to noon, they were under instruction by the Town officials to remain on the Town’s premises until the whistle blew for lunch. Theoretically, they were there subject to being assigned to any duty or task which became necessary as they were waiting.

The question of whether the accident arose out of the employment is somewhat more difficult.

Our courts have decided many cases involving accidents on or near the job caused by knives or guns. There are three cases whose analysis provides the greatest assistance in resolution of this question. These are: Lisonbee v. Chicago Mill and Lumber Company, supra, which is the latest expression of the Louisiana Supreme Court concerning the course of and arising out of features of the statute; LeCompte v. Kay, 156 So.2d 75 (La.App. 1 Cir. 1963), writ refused, 245 La. 91, 157 So.2d 233; and Singleton v. Younger Brothers, Inc., 247 So.2d 273 (La.App. 4 Cir. 1971), writ denied, 259 La. 59, 249 So.2d 202.

In Lisonbee, a night watchman, who was away from the company premises in violation of specific orders to the contrary, was shot by a desperado wielding a gun in the store where the watchman was buying a snack. The watchman was held not to be in the course of his employment. The Supreme Court emphasized the idea expressed by the leading authority on workmen’s compensation law in Louisiana, Professor Wex S. Malone, that:

“A strong showing by the claimant with reference to the arise-out-of requirement may compensate for a relatively weak showing on the during-course-of requirement, or vice versa.” 278 So.2d 7.

Also emphasized was the fact that, while Lisonbee was within the hours of his employment, he was not at the place of his employment. Thus, the court found that he was not in the course of employment, and then it turned to the question of whether the accident arose from his employment and this question was also resolved against the survivors of Lisonbee. The court found in discussing this feature of the case that:

. . the shooting by a stranger, entirely unprovoked, which obviously compelled Lisonbee to draw his gun, had no relation whatsoever to the employment.” 278 So.2d 10.

The defendants in the instant case, as well as the trial court, suggest that Lison-bee is authority for a resolution of the present claim against Turner. However, counsel for plaintiff has suggested some nine different distinguishing aspects. Without reviewing all of these, we note several distinguishing features. In Lison-bee, the accident occurred off the employer’s premises; the plaintiff was in direct violation of company rules in leaving the premises; the shooting occurred at another place of business, totally unrelated to the employer’s business; and the risk of Lison-bee being shot was not related in any respect to his employment.

In the present appeal, Turner was on the employer’s premises; he was in violation of no employment regulations; (In fact, he was on the premises in direct response to the town’s rule against leaving before the noon whistle was sounded.); the risk of Turner being shot was increased by the bringing of a pistol onto the premises by a fellow employee; and the risk of Turner being shot was not diminished by the employer’s representative, the utility superintendent, who was present and who did not order the weapon removed or prohibit its handling.

LeCompte v. Kay, supra, is cited by counsel for defendants as being most closely analogous to the instant appeal. There, LeCompte had gone with two other men to the employers’ hunting camp to assist in cleaning and general repair and renovation of the camp building. Substantially after working hours, LeCompte accidentally shot himself with a pistol. The Court of Appeal, First Circuit, denied compensation to Le-Compte’s survivors, holding that the accident did not arise out of the employment because:

“. . . the accident occurred after working hours while the employee was engaged in a purely personal endeavor, namely, his own amusement and recreation.” 156 So.2d 75, at 81.

The court held that LeCompte’s injury could be said to have occurred in the course of his employment since it happened on the employers’ premises under circumstances which required LeCompte to be there after working hours, the camp being many miles removed from his home and LeCompte being required to spend the night there to await the next working day.

LeCompte is closer to the present case than is Lisonbee, although there are certain features that can be distinguished. Le-Compte was not shot during working hours. He was only on the premises due to the remote location of the camp. Just prior to the accidental discharge of the gun, he was engaged in taking target practice for his own amusement. These features are distinguishable, although admittedly close to features in the present case where Turner was on the premises during working hours.

The third case, Singleton v. Younger Brothers, Inc., supra, is a knife case rather than a gun case, but the legal situation most closely approximates the instant appeal. Singleton was on the premises of his employer on a nonwork day for the purpose of picking up his paycheck. While waiting for the checks to arrive, he and a fellow employee engaged in horseplay with pocket knives and, in attempting to close his knife, plaintiff accidentally punctured his own leg, resulting in the subsequent amputation of the limb above the knee due to complications. The Fourth Circuit held that the employee, who customarily came to the employer’s premises to pick up his paycheck, was in the course of his employment when injured. The court emphasized that the accident occurred under circumstances where he was on the premises of the employer under conditions or associations brought about by the employment.

“The risks of such associations and conditions were risks of his employment.” 247 So.2d 273, at 276.

and the court concluded that:

“The risk of horseplay, being expectable under such conditions of employment, is a risk which arises out of employment,” 247 So.2d 273, at 276.

The court in Singleton emphasized the fact that workmen who are idle for some reason or the other in the course of their employment will engage in horseplay. This parallels very closely the instant situation. During a moment of idleness, while waiting for the noon whistle to blow, pursuant to instructions from the mayor and aldermen of the Town of Boyce, Turner and his co-employees engaged in pursuits which are to be expected under the circumstances. One man happened to have a revolver on the premises. The representative of the employer was aware of and tolerated — indeed handled — the weapon. Turner inspected it and in what amounted to horseplay, loaded the weapon, making a joking remark that he was going to shoot out-a street light or a truck light and the weapon accidentally discharged.

Thus, in summary, the significant aspects of the situation which bear on the question of whether the accident can be said to arise out of the employment, are:

(1) that the gun was brought on the premises by a fellow employee;

(2) that it had been there for some time and had been cleaned on the premises;

(3) that the presence of the gun, while possibly not encouraged, was not forbidden or disapproved by the employer through the person of the utilities superintendent. (There was an effort by Coutee to suggest that he had told the owner of the gun that he should not have brought it to work, but a fair evaluation of his testimony and that of the other witnesses, is that this remark was made after the accident rather than before. This is not to suggest any negligence on the part of Coutee, because an inquiry into negligence either as to Coutee or as to plaintiff is, in our opinion, inappropriate to a resolution of the issues.)

Additionally, there is the circumstance that these workmen, who remained on the premises without any particular duties, were engaged in typical behavior; they were displaying a natural and expected human curiosity concerning an interesting possession, the revolver. Courts can notice typical human behavior, that a group of employees standing idle will find something with which to divert themselves: inspecting a new automobile; telling fishing tales; looking at passersby; playing mumbly-peg; pitching pennies; or the like.

Thus, we think, as did the court in Singleton, that the plaintiff and his fellows were doing what might be expected during his employment. He was where he was by reason of his employment, he was thrown into association with the owner of the weapon by his employment, he was thrown into contact with it by his employment, (the presence of the gun was tolerated), and he accidentally shot himself. See also Favre v. Werk Press Cloth Mfg. Co., 152 So. 694 (La.App. Orleans 1934).

The rule is that, where an employee is in the course of his employment and where the accident has a reasonable connection with the employment (here, the fact that a fellow employee had a pistol at work), the accident is one arising out of the employment. The trial court erred, not in the resolution or evaluation of the facts, but in the application of the law to the facts.

Plaintiff has also urged on appeal that the defendants be cast for penalties and attorney’s fees. By reason of the close legal questions involved, the defendant insurer can not be said to have denied the payment of benefits on an arbitrary or capricious basis. A judgment for penalties and attorney’s fees is not appropriate under the circumstances.

The judgment dismissing plaintiff’s claim is reversed and the following decree is entered:

It is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Johnny B. Turner, and against the defendants, Town of Boyce and United States Fidelity & Guaranty Company, jointly and in solido, in the amount of $65.00 per week, beginning February 17,1975, for a period of five hundred (500) weeks, together with legal interest on each past due weekly payment from due date until paid, and for medical, surgical and hospital benefits and treatments previously incurred or to be incurred by plaintiff, not to exceed the amount provided by law.

Defendants are cast to pay all costs of trial and appeal.

REVERSED AND RENDERED.


author: HUMPHRIES, Judge. WATSON, Judge

text:
    Nary Joseph SMITH, Plaintiff-Appellee, v. Rex ANGELLE, d/b/a Angelle’s Backhoe Rentals, et al., Defendants-Appellants.
    No. 5698.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1976.
    Rehearing Denied Dec. 15, 1976.

      Davidson, Meaux, Onebane & Donohoe by L. Lane Roy, Lafayette, for defendants-appellants.
    Domengeaux & Wright by Terry E. Ther-iot, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

Defendants, Rex Angelle, d/b/a Angelle’s Backhoe Rentals, and Reliance Insurance Company, appeal the judgment of the 15th Judicial District Court, Parish of Lafayette, awarding workmen’s compensation benefits to plaintiff, Nary Joseph Smith, of $65.00 per week, commencing on March 10, 1974, during the period of disability but not to exceed 500 weeks, subject to credits for benefits paid, plus 7% interest on all past amounts due from the date of judicial demand. We reverse.

The essential facts surrounding the accident are uncontroverted. On March 10, 1974, plaintiff was working for the defendant laying pipe for a water line in a ditch. In order to secure the pipe, bolts of about 8 inches in length weighing about llh to 2V2 lbs. were used. These bolts were tossed down to the men working in the ditch as they were needed. About 2:00-2:30 in the afternoon, when plaintiff stooped over to properly place a piece of pipe his hard hat slipped forward on his head. Unfortunately, at the time plaintiffs hard hat slipped, a bolt was tossed into the hole which struck him on the back of the skull and neck. The blow stunned the plaintiff, caused a minor loss of blood but did not render him unconscious. Plaintiff was able to work again after about 30 minutes of rest. He continued to work until about 8:00 that evening, and for seven days thereafter. The plaintiff states that he continued working despite his headaches but that he was forced to quit working because of pain and numbness.

He was examined by Dr. Bienvenue (who did not testify) and then referred to Dr. Robert D. Martinez for treatment. Dr. Martinez practices the specialty of neurology, which is the diagnosis and treatment of diseases of the central and peripheral nervous system. Dr. Martinez saw the plaintiff first on April 4, 1974 and continued to see him periodically until sometime in July. Dr. Martinez states that he was unable to find any objective symptoms of physical impairment.

Compensation benefits were paid to plaintiff from the date of the accident up until May 19, 1974, as well as all medical expenses.

In August of 1974, the plaintiff consulted Dr. William Cloyd a psychiatrist of Lafayette, Louisiana. This consultation was suggested by Dr. Martinez merely because plaintiff continued to complain. Again, no neurological deficit was discovered. It was the opinion of Dr. Cloyd based upon a single, one hour meeting, that claimant was suffering from a traumatic neurosis, causally connected to the accident of March 10, 1974, and was totally disabled.

In October, 1974, the plaintiff consulted Dr. Kirgis of the Oschner Clinic in New Orleans. Dr. Kirgis reported that the plaintiff complained of numbness, headaches, dizziness and insomnia. However, all tests conducted by Dr. Kirgis revealed normal findings. Further, the doctor believed the plaintiff should not be on prescribed medication, and he doubted whether psychiatric treatment was needed. In a follow-up consultation, May 6, 1975, it was Dr. Kirgis’ opinion that claimant had improved and could return to work in the near future.

The final testimony adduced was by Dr. Jimmie Cole, a doctor of psychology. Dr. Cole saw plaintiff on May 20, 1975, after suit was filed. Pursuant to this examination claimant was subjected to a battery of tests devised for discovery of personality characteristics. Among these tests were the Wechsler Adult Intelligence Scale, the Minnesota Multiphasic Personality Inventory and the Bender Gestalt Intelligence Scale. These tests form the usual battery of psychological tests given most patients. From the results of these tests, Dr. Cole concluded that claimant had a tendency to be inconsistent and overexaggerate his deficits in order to achieve “secondary gain”. Secondary gain was described as a passive reward in the sense that less would be expected from plaintiff by his peer group. Further, Dr. Cole found that claimant has a tendency to malinger. He based this assertion upon the expressed desire of claimant for things to remain as they are.

The remainder of the testimony was by plaintiff, his wife and his brother, the essence of which is that since the accident the plaintiff is a changed man. Other relevant facts adduced by the testimony are that:

(1) Plaintiff engaged in playing softball on several occasions during the summer of 1974.

(2) Plaintiff has sought no other employment due to his supposed incapacity.

(3) Plaintiff no longer takes prescribed medication but takes aspirin for alleged headaches.

(4) Plaintiff consulted the Acadian Mental Health Center but their evaluations, if any, were not presented.

(5) Plaintiff is a frequent user of marijuana dating back several years before the accident.

It is clear that plaintiff has failed to show any objective evidence to support a finding that he is physically impaired and therefore disabled and entitled to compensation. No treating physician could discover any sign of neurological deficit. On the contrary, Dr. Martinez doubted plaintiffs credibility in that he was able to play softball but was unable to work. Mr. Smith demonstrated actions when he was unaware that he was being observed that he denied being able to perform when asked or tested. Dr. Kirgis felt that Mr. Smith was suffering from post traumatic headaches which were resolving, permitting plaintiff to return to work; further, Dr. Kirgis was of the opinion that plaintiff did not need psychiatric treatment or prescribed medication.

The sole issue presented for appeal is: Did plaintiff establish by a preponderance of the evidence that he is suffering from traumatic neurosis as a result of the accident of March 10, 1974?

The jurisprudence is well settled that a person may recover workmen’s compensation benefits for a neurosis induced by a job related accident even though there is no lasting physical impairment. Williams v. Bituminous Casualty Corp., 131 So.2d 844 (La.App. 2d Cir. 1961); Thomas v. St Patrick’s Hospital, 276 So.2d 749 (La.App. 3rd Cir. 1973); Harrell v. Delta Drilling Company, 251 So.2d 97 (La.App. 3rd Cir. 1971).

However, as outlined in the cases, disability based upon a traumatic neurosis must be established by a preponderance of the evidence.

The trial court, relying heavily on Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975) was of the opinion that plaintiff had discharged this burden. It is clear from the Tantillo case, supra, that all evidence both medical and lay may be considered in reaching the decision of whether a workman is disabled. Further, even when medical evidence is un-contradicted, lay testimony may be considered to establish a workman’s disability. However, in the Tantillo, case, supra, it was noted that lay testimony had substantial probative value in the determination of the issue involved. In the instant case, the testimony seeking to preponderate and prove a neurotic disability is supplied by the plaintiff, his wife and brother. Their testimony seeking to establish a neurotic condition, as a result of the accident, is that plaintiff does not engage in as many activities as he used to and that plaintiff tells them that he is depressed and in pain. This is of little probative value.

Testimony seeking to establish a disabling traumatic neurosis, because of the subjective nature of the disability, must be carefully scrutinized in order to protect the employer and his insurer from spurious claims. George v. Lafayette Well Service, Inc., 249 So.2d 212 (La.App. 3rd Cir. 1971); Mouton v. Travelers Insurance Company, 135 So.2d 287 (La.App. 3rd Cir. 1961); Domino v. Wolf's Baking Company, 215 So.2d 648 (La.App. 1st Cir. 1968). This principle of close scrutiny was not deviated from in the Tantillo case, supra.

The only medical evidence supporting plaintiff’s claim is that of Dr. William Cloyd who saw the plaintiff on one occasion for about one hour. In Dr. Cloyd’s letter it is revealed that his diagnosis was based solely on the reports of Dr. Martinez and the subjective testimony of the claimant. In this report Dr. Cloyd indicates claimant’s emotional response is normal and his thought processes cogent and satisfactory. Claimant indicated to Dr. Cloyd that he returned to work for one day following the accident when in fact he worked another seven days before consulting a physician. Further, claimant stated he was hospitalized following the incident without revealing to Dr. Cloyd that the hospitalization was for testing and not for treatment. Finally, Dr. Cloyd places no emphasis on the fact that the report indicates that claimant is inconsistent in his complaints and activities; that he is able to play softball but feels he cannot work; he indicated a stiffness of the left arm to Dr. Martinez but exhibited no deficiency when observed covertly.

Conversely, the evidence for the defendants is clear. No physician could find a neurological deficit of any character. Dr. Kirgis doubted claimant needed psychiatric treatment. Dr. Martinez clearly doubted claimant’s credibility and disability. Dr. Cole, a doctor of psychology, as a result of a battery of tests, determined that claimant’s I.Q. results were low but inconsistent; that claimant exaggerated his maladies all his life; was untruthful in his complaints in order to achieve “secondary gain”; that claimant experiences contentment and satisfaction in continuing his present situation. Although plaintiff states an active desire to return to work, at no time has he sought employment of any nature although encouraged to do so by all the people he consulted.

We do not believe the Tantillo case, supra, compels the trial court to count heads and attach weight to lay testimony if it consists of qualitative vagaries such as: (1) claimant is not as active as he used to be; (2) claimant can play softball but not as well as he did before the accident; (3) claimant doesn’t help around the house as much as he once did.

The Tantillo decision, supra, requires that the trial court give weight to lay testimony which has probative value in determining whether a worker is disabled. Such testimony should indicate that the person is unable to work, not that he just doesn’t work or engage in activity as much as he did before the mishap.

We find that in viewing the record as a whole the trial court erred in determining that the plaintiff had established his neurotic injury by a preponderance of the evidence. The judgment of the lower court is reversed and there is judgment rendered herein in favor of the defendants and against the plaintiff rejecting the latter’s demands at his cost.

REVERSED.

WATSON, J., concurred and assigned reasons.

WATSON, Judge

(concurring):

I concur with some reluctance in the result. The medical preponderates heavily against the plaintiff and a finding of total and permanent disability was based on a single, brief psychiatric examination.

Therefore, I can agree with the majority that the decision of the trial court is erroneous.


author: LOTTINGER, Judge.

text:
    Robert MATTHEWS et al. v. PARISH OF EAST BATON ROUGE, etc.
    No. 11038.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Robert Matthews, in pro. per.
    Oliver Martin, in pro. per.
    Tracy Lewis, in pro. per.
    Joseph White, in pro. per.
    C. James Carville, Jr., Baton Rouge, for defendant-appellee Sheriff Al Amiss.
    Joseph F. Keogh, Samuel R. Cicero, Baton Rouge, for defendant-appellee City Parish Governing Authority.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This appeal was fixed for argument and all attorneys of record and the plaintiff in proper person were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: CHIASSON, Judge.

text:
    William H. BAKER and Bobby L. Culpepper, Plaintiffs-Appellants, v. Honorable Edwin W. EDWARDS, Governor of the State of Louisiana, etc., et al., Defendants-Appellees.
    No. 10998.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    William H. Baker, pro se.
    Bobby L. Culpepper, pro se.
    I. Stephen George, Atty., Office of Atty. Gen., Baton Rouge, for defendants Edwin W. Edwards, etc., and others.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Plaintiffs-appellants brought this proceeding seeking a mandamus against the defendants-appellees to compel the enactment of legislation establishing a uniform system for securing and compensating qualified counsel for indigents as required by the Louisiana Constitution of 1974, Article I Section 13.

The District Court sustained an exception of unauthorized use of summary proceedings and dismissed plaintiffs’ suit. Plaintiffs then perfected this appeal.

Passage of Act 653 of 1976 makes the questions presented in this case moot. Therefore, this appeal is dismissed at appellants’ cost.

DISMISSED.


author: SAMUEL, Judge.

text:
    Karl ERMERT v. UNION LABOR LIFE INSURANCE COMPANY.
    No. 7648.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.
    Writ Refused Feb. 11, 1977.

      Andry & Andry, Jerald N. Andry, New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Harry A. Rosenberg, New Orleans, for defendant-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John V. Eaus, New Orleans, Carroll Callaway, Asst. Gen. Counsel, Chicago, Ill., amicus curiae.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff instituted this suit for breach of contract and statutory penalties against his health and accident insurer, for $839.08 major medical expenses allegedly due for his dependent wife. Following trial on the merits, judgment was rendered in favor of the defendant, dismissing plaintiff’s suit. Plaintiff has appealed.

These facts are stipulated: Plaintiff’s wife was hospitalized from September 23, to September 30, 1974. She was personally covered under a group health insurance policy issued to her employer by Lincoln National Life Insurance Company affording basic and supplemental major medical health coverage. Plaintiff also was insured under a group policy issued to his employer by the defendant, Union Labor Life Insurance Company, which afforded basic and supplemental major medical and health insurance to him and his dependents. His wife was a named dependent under this policy.

Following surgery, the wife submitted bills and physicians’ statements to her insurer, Lincoln National, in the sum of $2,076.88 and was paid $2,033.45 by them. Plaintiff then filed a similar claim with defendant for reimbursement of the same expenses incurred as a result of his wife’s surgery, etc. Union paid plaintiff $668 under the basic provisions of its policy, but refused to make payment for any additional amount ($839.08) allegedly due under the policy’s major medical provisions. That balance of the claim was denied under a policy “coordination clause”, which affects only the major medical portion of the policy and prevents duplication of those benefits where an insured is also covered and paid under another group policy.

In the trial court and in this court it was and is appellant’s contention that the coordination clause is in violation of LSA-22:663, which provides:

“Hospitalization, accident and health insurance; reduction of benefits prohibited Notwithstanding any other provisions in this title to the contrary, no group policy of accident, health or hospitalization insurance, or of any group combination of these coverages, shall be issued by any insurer doing business in this state which by the terms of such policy group contract excludes or reduces the payment of benefits to or on behalf of an insured by reason of the fact that benefits have been paid under any other individually underwritten contract or plan of insurance for the same claim determination period. Any group policy provision in violation of this section shall be invalid.” LSA-R.S. 22:663. (Emphasis ours).

The trial court found that if it were not for the fact that both of the policies here involved were group policies, plaintiff would be entitled to reimbursement for the expenditures in suit despite the previous reimbursement for the same expenditures. The court concluded the' statutory prohibition referred to group policies but only when the other policy sought to be coordinated was individually underwritten because the premiums under the former are less than those paid under the latter.

Appellant contends the proper interpretation of the above emphasized clause “individually underwritten contract or plan of insurance” is that the coordination clause is prohibited: 1) in any individually written contract; or 2) in any plan. Thus, he argues the coordination clause refers both to group policies as well as individually underwritten policies; in essence, that coordination is prohibited in each and every type of insurance contract, policy or plan. We do not agree. In our opinion, as used in the quoted statute “individually underwritten” modifies both “contract” and “plan” of insurance.

It is not uncommon to find provisions in group policies limiting or reducing coverage where the loss incurred is payable from other sources. Reasons include: to prevent the insured from recovering more than is necessary to make him whole; to keep the rates as low as possible while assuring full compensation to the group policy holder; to reimburse employees for their medical expenses and not enable them to make a profit out of being ill by obtaining multiple benefits for the same expenses, thereby encouraging malingering.

We are of the opinion, as was the trial court, that the intent of the legislature, as expressed by their language in LSA-R.S. 22:663, was to prohibit coordination where individually underwritten and group insurance policies were involved, but not to prohibit coordination where only group insurance policies were involved.

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

AFFIRMED.

      . As stated in 1 Appleman Ins. L. & P„ § 41, low premium rates characterize group insurance contracts.

      . The matter appears to be res nova in Louisiana. But see Gibson v. Metropolitan Life Insurance Company, 213 Kan. 764, 518 P.2d 422, and cases cited therein.


author: GULOTTA, Judge. REDMANN, Judge

text:
    Charles GOURGES, husband of/and Gloria Gourges v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS, INC., et al.
    No. 7660.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.

      Perez, Fernandez, Seemann & Egan, William H. Egan, Chalmette, for plaintiff-ap-pellee.
    Dillon & Williams, Robert E. Birtel, New Orleans, for defendant-appellant, Schweg-mann Brothers Giant Super Markets, Inc.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   GULOTTA, Judge.

Defendant appeals from a judgment in favor of Mrs. Gloria Gourges for injuries she sustained in a fall while shopping in defendant’s supermarket. We affirm.

Schwegmann contends that permitting an empty (except for two small packages), flat stock cart, 6 feet long, 2V2 feet to 3 feet wide and 18 inches off the floor, with a metal handle rising 4 feet at one end, to be left unattended for approximately 10 minutes and parked against a display shelf is not negligence. Also, according to defendants, inattention of plaintiff resulting in her failure to see the cart located within a step of a place on the shelf where the item was selected, and where in one movement plaintiff selects item, turns and falls over flat cart, constitutes contributory negligence. We do not agree.

We recognize that a storekeeper is not the insurer of the safety of its customers. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486, 489 (La.1976); Calamari and Manale v. Winn Dixie of Louisiana, Inc., 300 So.2d 653, 655 (La.App. 4th Cir. 1974); Vosbein v. National Food Stores of Louisiana, Inc., 286 So.2d 715 (La.App. 4th Cir. 1973). However, we also recognize that our jurisprudence, cognizant that a customer’s attention is drawn toward the inspection, location and selection of merchandise displayed on shelves and counters, places upon a storekeeper the duty of maintaining a safe passageway for its patrons. Gonzales, supra; Kavlich v. Kramer, 315 So.2d 282, 284 (La.1975); Whittaker v. Schwegmann Brothers Giant Supermarkets, 334 So.2d 756, 757 (La.App. 4th Cir. 1976). As we stated in Whittaker:

“While a storekeeper is under a duty to keep the passageway free from obstructions, a grocery store patron is under no obligation to make specific observation of the floor before taking each step. He has the right to presume that the aisles and passageways where it is intended for him to walk will be free from obstructions, especially in view of the storekeeper’s presumed intention and knowledge that the customer will devote the major portion of his or her attention to inspecting the merchandise deliberately displayed to attract the customer. * * * ”

See also the recent Louisiana Supreme Court case, Ferrington v. McDaniel, 336 So.2d 796 (La.1976).

Accordingly, we conclude that a judgment finding a storekeeper negligent and exonerating plaintiff from contributory negligence, under the circumstances recited above, is proper. Quantum is not at issue. The judgment is affirmed.

AFFIRMED.

REDMANN, J., dissents.

REDMANN, Judge

(dissenting).

The reasonable shopper exercising even minimal care would have seen this bed-sized, wood-floored cart, in stark contrast to the long aisle of bold-patterned flooring.


author: LEMMON, Judge. PER CURIAM.

text:
    Stanley J. GAUDET, Jr., et al. v. The BOARD OF COMMISSIONERS FOR the PONTCHARTRAIN LEVEE DISTRICT et al.
    No. 7662.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.
    Chaffe, McCall, Phillips, Toler & Sarpy, G. Phillip Shuler, III, New Orleans, for plaintiffs-appellants.
    Wayne Douglas Mancuso, Metairie, for defendant-appellee Anton Wald.

      Daniel E. Beenel, Jr., and Donald J. Cicet, Reserve, for defendant-appellee Board of Commissioners.
    Before LEMMON, MORIAL and BEER, JJ.
   LEMMON, Judge.

Mr. and Mrs. Stanley Gaudet, the owners of a home adjacent to the Lake Pontchartrain levee, filed this injunction suit and nuisance action, seeking (1) to enjoin Anton Wald, a cattle owner, and the Board of Commissioners for the Pontchartrain Levee District from maintaining and permitting cattle on the levee adjacent to the Gaudets’ home; (2) to abate the nuisance caused by the cattle operation, in which cattle frequently came into the subdivision and into the Gaudets’ yard; (3) to obtain an order for the removal of a barbed wire fence; and (4) to recover damages. The trial court rendered judgment dismissing the Board on an exception of no right of action and, after a subsequent trial on the merits against Wald only, rendered a second judgment denying the injunction and dismissing the Gaudets’ suit entirely. The Gaudets have appealed from both judgments.

Judgment on Exception

The Board’s exception was based on the fact, proved by evidence presented at the hearing on the exception, that the Board did not own the property, but had only the right under an expropriated servitude to build and maintain the levee. The exception in effect asserted that the Board was not a proper defendant.

The exception of no right of action is designed to question the right or interest of the plaintiff in instituting the suit. C.C.P. art. 927. These plaintiffs unquestionably had the requisite right and interest to demand injunction of the activities which allegedly caused damage to their property.

We conclude that the Board’s exception was improperly maintained, and the judgment must be reversed. Inasmuch as the Board did not take part in the trial on the merits, the judgment on the merits can have no effect on that party.

Judgment on the Merits

The Gaudets testified: In November, 1974 they moved into their home, which was the second residence constructed in the new lakefront subdivision. During construction cattle continually came onto the property and wandered through the subdivision. This nuisance continued after they moved in, and the cattle caused holes in the lawn, ate their shrubs and plants, created problems with flies and rats, and interrupted their sleep. On one occasion cattle stampeded near their young children. They complained to the Board and to local law enforcement authorities, who on each occasion required Wald to remove the cattle but accomplished nothing toward preventing continued occurrences. They therefore filed this action on March 19, 1975.

After an earlier hearing was continued, the matter came on for trial on May 14, at which time the Gaudets presented the testimony outlined above. A garden center operator, who had landscaped the premises at a cost of $5,500.00, also confirmed that cattle were loose between the Gaudets’ house and the levee, as well as across the street, in late October.

At the next hearing on July 2 the Gau-dets presented a police officer who had participated in several investigations of the Gaudets’ complaints. About three months earlier the officer had spoken to Wald on two occasions about his cattle being loose and unattended in the vicinity of the Gau-dets’ subdivision and behind their home. On a third occasion about a month before trial the officer observed Wald’s cattle on the street just east of the subdivision. The officer stated that on each occasion Wald told him someone had left a gate open in a fence across the levee.

For about 15 years prior to the opening of the subdivision, Wald had grazed cattle on the levee in the general area with a certificate of no objection from the Board. At the time of trial Wald’s nearest fenced pasture was adjacent to the levee and about a half mile east of the Gaudets’ home. Part of the fence surrounding that pasture was located along the base of the levee and separated the pasture from the levee. To prevent cattle from wandering down the levee toward the Gaudets’ subdivision when the cattle were released from the pasture to graze on the levee, Wald had erected another fence across the levee, perpendicular to the base.

Wald explained that the Board required a gate in the perpendicular fence and had provided a lock, but that the lock was frequently removed and the gate left open. He attributed the blame for loose cattle on the levee to other persons’ leaving the gate open. He stated that he had attempted to alleviate the problem by stringing barbed wire westward along the base of the levee, but that Gaudet had cut the wire immediately.

Commenting on the present status of the problem, Wald testified that the cattle had gotten loose in the vicinity of the Gaudets’ home only once in the six weeks between the first and second days of trial and stated that he no longer intended to graze cattle on the levee in the area behind the Gaudets’ home. He also presented a governmental health officer who had inspected the area of the Gaudets’ home and the adjoining levee five times during that period and had found no loose cattle or unsanitary conditions or public health hazards.

On the other hand, Mrs. Gaudet was recalled at the second day of trial and testified that cattle were loose on the levee behind their property four times during that period, once keeping them awake most of the night.

The trial judge denied the injunction, the record suggesting that he was convinced the situation had improved significantly since the suit was filed. We have concluded, however, that this judgment is improper, since the record established without contradiction that although the situation had improved considerably, Wald’s releasing of cattle from the fenced pasture onto the levee was still causing unreasonable interference with the Gaudets’ use and enjoyment of their property up to the date of trial.

Without addressing the question as to the proprietary interest Wald acquired in obtaining the Board’s permission to graze his cattle on the levee, we observe that Wald could not use the levee in a manner which caused substantial inconvenience to neighbors or which interfered with neighboring owners’ use and enjoyment of their property. C.C. arts. 667, 669; Robichaux v. Huppenbauer, 258 La. 139, 245 So.2d 385 (1971). Noting that the problem apparently occurred only when the cattle were released from the fenced pasture onto the levee, we believe the Gaudets are entitled to an order enjoining Wald.from releasing his cattle onto the levee without adequate supervision or such other safeguards as are reasonably sufficient to insure that the cattle will not wander along the levee or stray in the vicinity of Woodlake Estates and disturb the Gaudets’ use and enjoyment of their property. We do not attempt to specify or limit the manner by which Wald accomplishes compliance with this mandate; reasonable steps, however, must be taken for compliance, under penalty of contempt, whenever Wald releases cattle onto the levee.

We refer the matter back to the trial judge for formulating the terms of the injunction, possibly in consultation with the attorneys, and for issuance of an order consistent with the expressions of this opinion.

For these reasons, the judgment of the trial court, maintaining the exception of no right of action and dismissing the Board of Commissioners for the Pontchartrain Levee District from the suit, is reversed, and it is now ordered that the exception be overruled. The judgment on the merits, dismissing the suit against Anton Wald, is also reversed, and it is ordered that a permanent injunction be issued in terms consistent with the expressions of this opinion. All costs in both courts are assessed against defendant Wald.

REVERSED AND RENDERED.

Before LEMMON, MORIAL and BEER, JJ.

PER CURIAM.

Wald’s application for rehearing indicates his understanding that he must simply prevent his cattle from wandering onto plaintiffs’ property.

The record indicates that Wald’s cattle disturbed plaintiffs’ use and enjoyment of their property in many ways and not only by actual entry onto the particular lot. Our judgment contemplates that Wald may release his cattle from the fenced pasture onto the levee only if he employs adequate safeguards to insure that the cattle will remain near the pasture and completely away from Woodlake Estates and that part of the levee adjoining the subdivision.

APPLICATION DENIED.

      . The demand for damages was effectively severed from the trial of the other demands by the trial judge, who declared at the outset of the hearing on the injunction that “(w)e’re not going to go into damages today.”

      . Although the trial was a summary hearing on the demand for preliminary injunction, counsel stipulated in this court that the evidence presented and our decision on review would be binding on the demand for permanent injunction.