text:
    Cyrus MARINO v. George CLARK, d/b/a New Orleans Plastering Co. and New Orleans Plastering Co. and United States Fidelity & Guaranty Co.
    No. 8493.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Nov. 4, 1977.
    Badeaux, Discon, Cumberland & Barbier, J. Michael Cumberland, New Orleans, for Cyrus Marino, plaintiff-appellant.
    Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for George Clark, d/b/a New Orleans Plastering Co., et ais., defendants-appellees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Plaintiff filed suit against defendant and defendant’s insurer for damages arising from a slip and fall plaintiff suffered at a construction site. After trial on the merits, the trial court rendered a judgment dismissing plaintiff’s suit and plaintiff now appeals that judgment.

Basic facts are uncontested. Cyrus Mari-no was an electrician employed by Fishback & Moore, Inc., working on the new Federal Building in the City of New Orleans. On June 20, 1974, the plaintiff was working on the third floor of the multi-storied office building installing electrical conduit. The area in which the plaintiff was working was splashed with droppings of fire-proofing material, (Vermiculite and plaster) that had fallen to the floor while being sprayed on the steel beams. The fire-proofing material was extremely slippery and covered almost the entire area, including the stairs near the working area.

As the plaintiff knocked off work that day, he descended the south staircase, the only staircase open in the office building, rather than waiting for the man-lift or walking approximately 200 feet to the adjoining court building and using the staircase which was open in that building. After taking a couple of steps, the plaintiff slipped and fell, injuring his back.

Plaintiff Marino was unable to work until November 1974, and then returned only on a limited basis. During that period of convalescence Marino received workman’s compensation benefits from his employer’s insurer, Travelers Insurance Company, who intervenes for benefits paid.

Plaintiff sought recovery in tort from the fire-proofing contractor on the basis that the defendants were negligent by conducting the spraying operation in an unsafe manner and without proper regard for safeguards of others working in the area. The defendants answered the suit alleging the plaintiff to be negligent, contributorily negligent, or having assumed the risk.

During trial, plaintiff called several witnesses and all testified to the presence of the fireproofing material which covered the work area and the extreme slipperiness of the material.

Marino’s foreman, Walter Ford, Jr., testified that it was hard to avoid walking through the substance because it was all over the working area, and further, he himself slipped almost every day on the stairs where the plaintiff slipped. Ford himself had fallen on three prior occasions.

Peter Foret, a government safety inspector, testified that just about everyone had to go through the area where the substance had fallen on the floor. Foret added that the south stairs were the only stairs open in that building and that the fire-proofing material was difficult to detect or see on the stairs.

Ferdinand Schwab, an electrical inspector at the job site, was walking ten to twenty feet behind the plaintiff when the plaintiff slipped and fell. Schwab did not see the plaintiff move in a reckless or dangerous manner when approaching the stairs, but when asked during cross-examination why he too didn’t fall, he explained, “I was extra careful.” Schwab testified that he had never fallen on any other occasion either.

The trial judge rendered his reasons for judgment from the bench. He found the defendant company was negligent in the manner in which they performed their function of keeping the area clean. However, he also found that plaintiff knew the substance was on the steps and that it was slippery, and that the dangerous condition was of an obvious character which denoted to all concerned to use a high degree of care and caution in negotiating the area where the substance was present.

The trial judge found that others did not fall because they were being extra careful and that was the degree of care required when a person was aware of a known danger. The trial judge was not convinced that the plaintiff was holding onto the railing at the time of the fall. Based on these facts and the fact that the plaintiff did have an alternate route to leave the building, the trial judge found the plaintiff to have been contributorily negligent.

Our review of the record convinces us that the trial judge was correct in his determination that the plaintiff was con-tributorily negligent. A party who fails to exercise the degree of care and prudence required in avoiding a danger which he has observed and knows about is contributorily negligent. Barnes v. Pick, La.App., 311 So.2d 609 (1975); Cooper v. Phoenix Insurance Company, La.App., 252 So.2d 565 (1971); and Toye v. Brown-McHardy Clinic, La.App., 131 So.2d 413 (1961).

The plaintiff himself had admitted that he had prior knowledge that the fireproofing material was extremely slippery and that one had to be cautious when walking on the surfaces covered by the substance. Plaintiff admitted there was at least one other means of leaving the building. Nonetheless, the plaintiff chose to take the stairs in spite of the knowledge of the dangerous condition of the steps when he finished work that day. Under those circumstances, we are satisfied that the plaintiff failed to exercise the degree of care required in such a situation and is thus barred from recovery by his own contributory negligence.

Accordingly, the judgment appealed is affirmed.

AFFIRMED.

      . Dr. Robin Llewellen, a neurosurgeon, testified that the plaintiff suffered ruptured discs at the L-3,L-4 level and at the L-4.L-5 level which he removed by operation. Dr. Llewellen would not advise the plaintiff to return to full, unlimited work.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Irene OWENS v. Jessie W. THORNTON and United Transport, Inc.
    No. 8247.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.

      Bradford R. Roberts, II, Ganucheau & Allmand, New Orleans, for Irene Owens, plaintiff-appellee.
    William W. Miles, Porteous, Toledano, Hainkel & Johnson, New Orleans, for Jessie W. Thornton and United Transport, Inc., defendants-appellants.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Plaintiff filed suit for damages arising from an accident in which the plaintiff pedestrian was struck and run over by a tractor-trailer truck driven by Jessie W. Thornton and owned by United Transport, Inc. After trial judgment was rendered for plaintiff and defendants have appealed.

The accident occurred on March 25, 1974 at the intersection of N. Miro Street and Almonaster Avenue in the City of New Orleans. Defendant Thornton was driving a large tractor-trailer “rig”, of the type used to transport automobiles in a steel frame being about sixty feet in length, on N. Miro Street, intending to make a right turn onto Almonaster Avenue. Thornton testified that- in order to make the turn from the narrow N. Miro Street he pulled his “rig” into the left lane of N. Miro Street prior to stopping at the stop sign facing him at the intersection. Thornton looked left and right and saw the plaintiff standing on the corner to his right on the same side of Almonaster as he was stopped; the plaintiff was watching traffic passing on Almo-naster. When traffic was clear Thornton began the long right turn onto Almonaster from the left lane of N. Miro.

Thornton testified that it took approximately IV2 minutes to make the turn, and when he was about 90% through the turn, he looked into his right rearview mirror and saw the plaintiff sitting on the pavement in the middle of the street, about a foot from the side of the trailer and a couple of feet from the rear wheels of the trailer. Upon seeing Mrs. Owens’ predicament, Thornton stopped his truck.

The plaintiff’s version of the accident is that she was standing on the corner waiting for traffic to pass on Almonaster Avenue. While standing on the corner, the “rig” made a right turn and passed over or very near to the corner where she was standing. The vertical support bar of the right front of the truck cab struck her left arm, spun her around and knocked her into the street. As she fell, the rear wheels of the tractor passed over both of her feet.

Lloyd Broussard was nearby at the time of the accident. Broussard did not see the accident, but ran to the scene when he heard Mrs. Owens’ screams and found her sitting near the middle of Almonaster Avenue facing away from the trailer, although she was only about a foot from the side of the trailer.

Mrs. Owens was taken to Southern Baptist Hospital where it was discovered that she had a broken left humerus and multiple back fractures of both feet. We do not enter into a discussion of the damages suffered by the plaintiff because appellants do not question the award of damages on appeal, but instead defendants focus their appeal primarily on the issue of liability.

Defendants contend that the trial court erred in not finding the plaintiff contribu-torily negligent and not finding that the plaintiff failed to prove her case by a fair preponderance of the evidence.

Defendants contend that the plaintiff was not standing on the corner at the time she was struck by the tractor-trailer, but instead she was crossing the street. To support this contention, defendants argue that it was impossible for the tractor to drive over the curb where plaintiff alleges to have been standing, and further, the location of the plaintiff after the accident, the middle of Almonaster Avenue, necessarily leads to the conclusion that the plaintiff was in the street and not on the curb. Thus, the defendants argue that the plaintiff was contributorily negligent for failing to see the truck which she should have seen while crossing the street.

There were no eye witnesses to the events leading up to the accident other'than the plaintiff and defendant. However, the trial judge, in his reasons for judgment, found the issue to be something other than credibility when he said:

“ . . . The testimony is such as to make it impossible for the Court to determine with accuracy — and without speculation — just how the accident did happen. However, the question for determination is whether or not the driver of the truck was negligent, and whether or not Mrs. Owens contributed to the accident in any manner.” * * *

The trial judge then found that the defendant driver should have kept the plaintiff in his view, but that he had his eyes focused straight ahead in order that he could make the big turn without hitting poles in the neutral ground. Additionally, the trial judge stated that the plaintiff may have avoided the accident by moving back from the curb or the point where she was struck, but if she was negligent in that respect it was not the proximate cause of the accident. As the judge said in his reasons:

“ . . . She had to have had her eyes focused on the street she was to cross and had no reason to know that the truck was to make a turn rather than proceeding straight across Almonaster Street.”
* * * * * *

Our review of the record convinces us that the trial judge was correct in determining that the driver of the truck was negligent in the manner in which he made the turn without regard to the safety' of Mrs. Owens. The truck driver’s own testimony supports such a determination:

“Q. What happened? What were you looking at during the time that elapsed from the time you saw Mrs. Owens standing on the corner until the time you saw her down alongside of your trailer?
“A. Where was I looking at?
“Q. Yes.
“A. Well, on the neutral ground, on the righthand side of North Miro they have a telephone pole and a light standard. It’s so close when you make the turn you only have about two inches between to get that tractor around there. You have to watch that. I watched the poles. When I got around the poles then I looked into the rear view mirror and that’s when I saw Mrs. Owens.”

The truck driver was well aware of the difficulties in maneuvering the large rig in narrow confines. It was necessary that he pull out into the intersection some distance and then make a sharp right turn in order to give the trailer as much clearance as possible to keep it from rolling across the curbing and sidewalk to his right. An unwary pedestrian or one not familiar with the turning propensities or turning radius of such a large rig might thus be caught unaware by the rig encroaching into an area normally safe from danger by a right-turning vehicle of smaller dimensions and turning radius. A vehicle making a right turn at an intersection owes a legal duty of care to a pedestrian properly crossing the street into which the motorist intends to turn. Collins v. Toye Bros. Yellow Cab Co., 183 So.2d 396 (La.App. 4, 1966). This duty is heightened when the right-turn maneuver must be accomplished in an unusual manner of which the pedestrian may be unaware. The trial judge found that the truck driver should have stopped to allow the pedestrian to proceed or at least keep her in view to insure her safety, and we agree.

The issue of contributory negligence is a greater problem. We are convinced from the record that Mrs. Owens was not standing on the sidewalk when struck. The physical facts disprove this. We conclude that she had departed the sidewalk in order to cross the street. When the traffic on Almonaster cleared, she had a right to cross Almonaster and rely upon turning traffic yielding. Of course, she cannot be heedless of turning traffic without being contributo-rily negligent. But in this case, the truck started out straight ahead (and if the driver is to be believed, from the far side of N. Miro) as if to go straight across Almonaster just as she was going. Thus she would have no warning that she was in peril until the truck made its sharp right turn maneuver encroaching into her passageway. At that point in time she was properly crossing the intersection in the crosswalk and had the right to be in the position she was occupying. When the emergency situation was created by the driver moving sharply to his right without yielding to crossing pedestrians, she was unable to extricate herself from the peril of the emergency thus created. We find no contributory negligence.

Defendants-appellants also contend that the trial court erred in refusing to allow certain demonstrative evidence offered by the defendants. The defendants attempted to introduce certain photographs and movies which they claim would prove that it was impossible for the accident to happen at the spot and in the manner suggested by the plaintiff. Opposing counsel objected on the ground that the tractor and trailer used in the re-enactment were not the same as the tractor and trailer involved in the accident and that too many variables were involved for the re-enactment, or experiment, to have any value.

The determination of whether motion pictures are admissible is largely within the discretion of the trial court. Ashley v. Nissan Motor Corp. in U. S. A., La.App., 321 So.2d 868 (1975); Carvell v. Winn, La. App., 154 So.2d 788 (1963). The trial judge stated that he felt that it made “A lot of difference” if the photographs and movies proffered showed a shorter tractor-trailer than the one involved in the accident and he also noted the numerous variables involved in making the turn in any re-enactment. We cannot say the trial judge abused his discretion in view of the major differences between the tractor-trailer involved in the accident and the one in the proffered evidence.

The final issue raised by appellants in this appeal is whether the trial judge made critical conclusions on matters outside of the testimony. Specifically, appellants complain that the trial judge conducted his own inspection of the location of the accident and partially based his judgment upon such inspection.

A trial judge may visit an accident scene to accomplish a better understanding of the testimony of the witnesses by viewing the described physical surroundings, but the conclusions of the trial judge must be based on the evidence produced at trial and not on post-trial data that he improperly develops at the scene of the accident. Orgeron v. Muhleisen, La.App., 256 So.2d 458 (1972). However, there is nothing in the record to indicate that the trial judge did visit the scene or that he based his conclusions upon such a possible visitation. As previously stated, relying on the record alone we find sufficient reason to maintain the judgment of the trial court.

Accordingly, for the foregoing reasons, the judgment appealed is affirmed.

AFFIRMED.

      . For definition of crosswalk, see Code of the City of New Orleans, Section 38-17. For pedestrians’ right of way in crosswalk, see Section 38-176.


author: SCHOTT, Judge.

text:
    Dorothy Smith, wife of/and Harold R. SMITH v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 8237.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Granted Nov. 4, 1977.
    Frank J. D’Amico, New Orleans, for plaintiffs-appellees.
    Hammett, Leake, Hammett, Hulse & Nelson, Robert E. Leake, Jr. and T. Michael Masterson, New Orleans, for defendant-appellant.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

This case arose out of an automobile accident which occurred on December 14, 1973. Plaintiffs were injured and their automobile was damaged. The trial court awarded $7500 to Mrs. Smith for general damages and $1250 to Mr. Smith. He also awarded $1100 to Mr. Smith for loss of anticipated profit on his vehicle. From that judgment defendant has appealed only on the issues of the general damage awarded for Mrs. Smith and the loss of profit on the vehicle. Plaintiffs have answered the appeal asking for increases in both awards for general damages.

As to Mrs. Smith, she testified as follows: When the collision occurred she struck her head and nose on the dashboard of the automobile. She sustained lacerations of the tongue and right knee and was rendered unconscious. She was taken to the Methodist Hospital where she was examined, released about four hours later and told to see her own doctor for a check-up. Over the weekend following the accident she had nausea, dizziness, general overall pain and “wasn’t feeling well.” She was also suffering from severe headache. The following Monday she consulted her family doctor who arranged for her to see an orthopedic surgeon. At this time she had general aching bruises, laceration of the leg, a sore knee and low back pain, along with lacerations of the nose and tongue which were still painful. She was also concerned about her headaches whereupon she was referred to a neurosurgeon. He recommended an electroencephalogram and treated her for a concussion. He prescribed fiorinal for her headaches. She continued to have nausea and vomiting and lost her appetite with a resultant weight loss from 125 pounds to 93 pounds. She did not regain any of this lost weight for a long time and then slowly regained it to the point where she weighed 111 pounds at the time of the trial in January, 1976. The knee and low back pain lasted about two months. She continued to have headaches for a year and a half, prompting her to go back to Dr. Vogel in February, 1975. She still had headaches at the time of the trial, but they were gradually decreasing and were not as frequent as they were during the first 13 months after the accident. She could not function properly in her duties as a housewife and mother for about four months after the accident.

The medical evidence consisted only of stipulated reports by Dr. W. M. Pusateri, an orthopedic surgeon, and Dr. Kenneth Vogel, a neurosurgeon.

Dr. Pusateri saw Mrs. Smith only once on December 19 and diagnosed a contusion of her right knee and a strain type injury of the lumbar spine. He felt that these injuries were minor and that there would be no permanent physical impairment. He recommended that Mrs. Smith see a neurosurgeon because of a questionable period of unconsciousness following the accident together with the headaches and vomiting which she was experiencing.

Dr. Vogel saw her on December 20 and diagnosed a cerebral concussion, grade I, with mild post concussion syndrome, for which he prescribed fiorinal for the headaches and recommended that she return to his office on an as needed basis. He was hopeful that she would resolve the symptoms spontaneously and not require further neurological care. On January 24,1975, she was re-evaluated in his office with complaints of “intermittent non-vomiting and headaches.” Her neurologic examination was normal and “at that time she was felt to have been experiencing a resolution of her concussion systems.” On February 27 she was re-evaluated in his office, stating that she was experiencing an occasional headache approximately once a week. He thought that she had “resolved these systems of her cerebral concussion” and no return appointment was made.

Apparently the trial judge interpreted Dr. Vogel’s report to mean that her headaches were residual symptoms of the concussion, but we do not attach the same significance to the report under all the circumstances. She had been told in December, 1973, to return to Dr. Vogel on an as needed basis and yet did not return until January, 1975. Furthermore, she gave no explanation for not seeking any medical treatment during the extended period of time in which she was suffering from nausea, vomiting and loss of appetite and was losing weight. We interpreted Dr. Vogel’s report of January, 1975, to mean that she had recovered from the concussion.

In any event, her burden was to prove that her headaches were caused by the concussion from a medical point of view and the evidence in this record consisting entirely of Dr. Vogel’s vague and ambiguous report was insufficient to prove such causation.

An award of $2500 is adequate to compensate her for the injuries she proved.

As to Mr. Smith’s award of $1100 for loss of anticipated profit on his automobile, he testified as follows: He is a new car salesman for a Chevrolet dealer and as a fringe benefit in his employment he is able to make an annual purchase of an automobile from his employer at the dealer’s cost. Under that arrangement he purchased a 1974 Corvette just three months before the accident occurred for $5461.70. The dealers list price for such a car was $6751.50. He would have sold the car the following year, i. e., in December, 1974, when the wholesale price, according to the NADA book, .was $6575.00. The difference between the $6575.00 and the $5461.20 he paid is profit of which he was deprived because of the accident. After the accident his collision insurer paid $2600.00 and the unrepaired car was sold for $2450.00 salvage. The sum of $5050.00 was approximately the balance due on the mortgage of the automobile.

The trial judge’s award of $1100 was apparently based on the difference between what Smith paid for the car and what he thought the car would have been worth on the market one year after the accident had the accident not occurred. No authority has been cited for such an approach to automobile damages and we have found none.

In Coleman v. Victor, 326 So.2d 344 (1976), the Supreme Court rejected an argument that the plaintiff was entitled to $1450 being the difference between the value of plaintiff’s automobile before the accident and the sum for which the automobile was sold by her after the accident, and limited plaintiff’s recovery to the estimated cost of repair.

In Cheramie v. Jones, 327 So.2d 601 (La. App. 4th Cir. 1976), we held that when a vehicle is totally destroyed, or so badly damaged that the cost of repair exceeds its value, the proper measure of damages is the value of the vehicle on the date of the accident less the salvage, but if the vehicle is not totally destroyed the measure of damages is the cost of repair plus diminution in value resulting from the accident.

In this case there is no proof in the record that the car was not repairable or of any depreciation which might have resulted from repairs. See footnote 7, Coleman v. Victor, supra. Nor is there proof that the value of the automobile was diminished as the result of the accident, so that Smith is not entitled to this item of damage. Cheramie v. Jones, supra; Traders and General Insurance Company v. Robinson, 289 So.2d 178 (La.App. 1st Cir. 1973). Furthermore, Smith presented no expert testimony to prove that the sale price of the car as salvage for $2450 was the fair market value. We have therefore concluded that Smith cannot recover for his automobile damage beyond his $200 deductible.

In connection with plaintiffs’ answer to the appeal, we have already covered Mrs. Smith’s award. As to Mr. Smith, he was initially examined by Dr. Pusateri on December 19, 1973, and was found to have sustained a mild lumbar strain and contusion on both hips. The use of a heating pad and a muscle relaxant were prescribed but he was advised to continue working as an automobile salesman. The course of treatment included an office visit on January 27, 1974, when he was improving but still had some pain on flexion. On March 25, 1974, Smith was examined for the last time by Dr. Pusateri and found to be asymptomatic and completely recovered.

Smith testified that he missed about five days of work because of the accident and could not put in a full day’s work after the accident because of pain. He also said that he was still having pain from the accident at the time of the trial.

Apparently the trial judge was not as impressed by Smith’s testimony as he was by Mrs. Smith’s. We cannot say that the trial judge abused his discretion in making the award of only $1250.

Accordingly, the judgment appealed from is affirmed but amended to reduce Mrs. Smith’s award to $2500 and to delete the sum of $1100 from the judgment in favor of Harold Smith, so that there is judgment in favor of Mrs. Dorothy Smith and against Government Employees Insurance Company in the sum of $2500.00 with legal interest from date of judicial demand until paid, and for all costs, and in favor of Harold R. Smith and against Government Employees Insurance Company in the sum of $1898.84 with legal interest from date of judicial demand until paid, and for all costs.

AMENDED AND AFFIRMED.


text:
    R. C. BURSE v. BOH BROTHERS CONSTRUCTION COMPANY and Collins Thibodeaux.
    No. 8311.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Nov. 4, 1977.
    Bridgeman & Conway, James R. Conway, III, Metairie, for plaintiff-appellant.
    Bienvenu, Foster, Ryan & O’Bannon, Ernest L. O’Bannon and David E. Walle, New Orleans, for defendant-appellee Boh Brothers Const. Co.
    Before SAMUEL, BOUTALL and SCHOTT, JJ,
   SCHOTT, Judge.

Plaintiff has appeájled from a dismissal of his tort suit against Boh Brothers Construction Company on a motion for summary judgment filed by that defendant.

Plaintiff, while hauling mud in his dump-truck on a construction project, was injured as a result of negligence of an employee of Boh, the general contractor. Plaintiff’s suit was dismissed on the ground that Boh was his statutory employer under LSA-R.S. 23:1061 with the result that plaintiff’s exclusive remedy was in workmen’s compensation.

R.S. 23:1061 provides in pertinent part as follows:

“Where any person . . . undertakes to execute any work, which is a part of his trade, business, or occupation . and contracts with any person . for the execution ... of the whole or any part of the work . . . the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him . . .”

The affidavit of Boh’s vice president set forth the facts on which the motion for summary judgment was based. Boh obtained plaintiff’s services through a broker who employed and made available to Boh dumptrucks and operators such as plaintiff. This broker carried workmen’s compensation on the operators it furnished. Boh regularly utilized dumptrucks and operators for the purpose of transporting mud, utilizing its own fleet of dumptrucks to the extent that this was adequate and supplementing that fleet with independent operators, such as plaintiff, when necessary.

Under these facts which were uncontro-verted Boh would be liable to plaintiff in compensation and therefore not liable in tort. Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972).

However, plaintiff contends that its relationship with Boh was that of vendor-vendee as in the Broussard case rather than principal-contractor. The facts of this case do not support plaintiff’s argument. Here, plaintiff’s services were utilized in the identical fashion as Boh’s own dumptruck operator employees. Plaintiff was not delivering materials purchased by Boh but rather was operating a dumptruck moving Boh’s material in the same way as Boh’s regular employees did.

The judgment appealed from is affirmed.

AFFIRMED.


text:
    Frederick YOUNGBLOOD v. BELDEN CONCRETE PRODUCTS, a Division of Marine Concrete Structures, Inc. and United States Fidelity & Guaranty Company.
    No. 8582.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Nov. 4, 1977.
    Jefferson, Bryan & Gray, William J. Jefferson, New Orleans, for plaintiff-appellant.
    Murphy & Simon, James C. Murphy, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his workmen’s compensation claim on an exception of prescription filed by defendants. The case was decided on the basis of plaintiffs petition, there being no testimony or other evidence before the trial court.

In his petition entitled “Petition in Suit for Workmen’s Compensation, Penalties, Damages and Reinstatement” plaintiff alleged: He was employed by defendant Bel-den as a laborer at $4.43 per hour and was injured on the job on November 13, 1974. He was given medical care at the expense of his employer and compensated at $65.00 per week from November 13, 1974, through February 3, 1975, when defendant’s physician discharged him and recommended that he return to his former occupation. Still feeling pain, he saw another physician who released him for work in April, 1975. Shortly thereafter he presented himself to defendant for work and was told that his job was terminated. He prays for compensation at the maximum rate between February 3 and April 3, 1975, together with penalties and attorney’s fees.

The petition was filed on April 8, 1976.

Until amended by Act 583 of 1975, LSA-R.S. 23:1209 provided simply for a one-year prescription from the time of the accident or from the time of the last payment. However, the 1975 amendment added the proviso “that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment.” The trial judge apparently concluded that this is not a case of partial disability so that the one year prescriptive period applies.

The amendment to the statute is somewhat difficult to understand. If interpreted to mean that a plaintiff who alleges a case of partial disability with payments made therefor has three years in which to bring suit, while the plaintiff who alleges a case of total disability with payments made therefor has only one year in which to bring suit, the result seems absurd. The defendant in the case of alleged partial disability could invoke the prescription of one year if he could prove that plaintiff was totally and not partially disabled. A more reasonable interpretation can be found from a reading of the statute as a whole:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

We interpret the statute to mean that where the parties agreed that the payments were being made for total disability the one year prescriptive period applies but in the absence of such agreement the payments are presumed to be for partial disability with the resulting application of a three year prescription. This seems more realistic in view of the fact that an injured workman normally makes a gradual recovery, i.e., he may be totally disabled at the inception of the period of disability but is only partially disabled just prior to discharge from medical care. Thus, in many cases the last compensation payments are in reality made for partial disability in the absence of an agreement to the contrary.

Since plaintiff does not allege there was an agreement that the payments were made for total disability and since the benefits paid to him would be the same for total or partial disability, we cannot say plaintiff’s claim has prescribed.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff, Frederick Youngblood, and against the defendants, Belden Concrete Products, a Division of Marine Concrete Structures, Inc. and United States Fidelity and Guaranty Company, overruling their exceptions of prescription. The case is remanded to the district court for further proceedings. The costs of this appeal are assessed against defendants, and the assessment of all other costs is to be made by the trial court.

REVERSED AND REMANDED.


author: FORET, Judge.

text:
    Walter Jerald HELMS, Defendant-Appellant, v. Joyce Edna HELMS, Plaintiff-Appellee.
    No. 6104.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 3, 1977.
    Charles S. King, Lake Charles, for defendant-appellant.
    Raleigh Newman, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

This appeal arises from a judgment of divorce granted by the trial court in favor of Joyce Edna Helms, and against Walter Jerald Helms, who has perfected this appeal.

Walter Jerald Helms obtained a judgment of separation from his wife, Joyce Edna Helms, in this suit in the Fourteenth Judicial District Court, on June 8,1976. On October 27, 1976, in this same suit, Joyce Edna Helms filed a petition against Walter Jerald Helms, seeking a judgment of divorce on the grounds of adultery. By supplemental and amended petition, Joyce Edna Helms also made other demands against Walter J. Helms; the latter then added to his original petition and reconvened against Joyce Helms for a money judgment for money loaned to her after their legal separation. However, the only issue before this Court is the matter of the divorce.

Defendant-appellant, Walter Jerald Helms, on appeal, contends that the sole issue and question of law involved herein is whether the trial court applied the proper standard of proof of adultery, i. e. that there was sufficient evidence to exclude all reasonable hypotheses other than that of guilt of adultery.

In her petition, appellee alleges that defendant-husband, on the nights of October 15 and 16, 1976, committed acts of adultery with Nona Allison in the latter’s apartment in Lake Charles, Louisiana. To substantiate those allegations, four witnesses testified — appellee, Joyce Edna Helms; Agnes Thompson, appellee’s mother; Dorothy Hebert, appellee’s aunt; and Linda Foy, a close friend of appellee’s. They all swore under oath that they conducted a constant surveillance of the apartment of Nona Allison, the alleged paramour, between the hours of 3:30 o’clock P.M. Friday, October 15, 1976, and 11:00 o’clock A.M. Saturday, October 16, 1976, and between the hours of 9:30 o’clock P.M. Saturday, October 16, and 6:30 o’clock A.M. Sunday, October 17. They stated that each night, upon arrival at the apartment house, by knocking loudly and continuously for a reasonably long period of time, they sought entrance into Nona Allison’s apartment; and that, after no response thereto was made, they positioned themselves — Dorothy Hebert and Linda Foy in an automobile parked in the street immediately in front of the apartment building, and Agnes Thompson and appellee in an automobile situated in the rear of the apartment building — so that they could view those who entered and/or exited from the building. (Dorothy Hebert and Linda Foy were positioned so that they could easily view those who made use of the only entrance to the apartment building.) They all testified that at no time did they leave their positions.

The findings of the first surveillance were as follows: at 4:38 o’clock P.M., Nona Allison arrived at her apartment. Approximately two hours later, at 6:32 o’clock P.M., defendant, Walter Jerald Helms, entered the apartment. Between those times and 11:00 o’clock A.M. October 16, no one entered, or left, the apartment.

The October 16-17 surveillance also revealed that defendant stayed overnight in the apartment of Nona Allison. All of ap-pellee’s witnesses testified that at 11:50 o’clock P.M. Walter Jerald Helms and Nona Allison entered the latter’s apartment; and that between the hours of 11:50 o’clock P.M., October 16, and 6:30 o’clock A.M., October 17, no one else entered or left the apartment. Appellee and Agnes Thompson stated that, while the lights in the master bedroom of the apartment were illuminated, through the curtains covering a window of that room, they could see the outlines or silhouettes of two persons, of the opposite sex, undressing, getting into bed together, and putting the lights out.

Fourteen witnesses testified on behalf of defendant-appellant. The testimony of Nona Allison, Charlene Wimberly, Nona’s sister, and appellant himself was in direct conflict with the testimony of plaintiff’s witnesses insofar as the times in which Nona and Jerald entered the apartment on the two nights in question and insofar as they stated that Nona and Jerald attended a birthday party on Friday, October 15, and a McNeese football game and alumni dance on Saturday, October 16. The above witnesses for the defendant, and defendant himself, definitively stated that Jerald Helms stayed overnight in Nona’s apartment on October 15 and 16, but that at no time ever did Jerald and Nona commit an act of adultery; and that Nona and Charlene slept in the same bed and Jerald slept on the couch in the living room.

Nona and Jerald testified that they arrived at the home of Mr. Jerry Wayne Bruno and his wife Peggy at 8:30 o’clock P.M. Friday, October 15, to attend a birthday party in honor of Peggy, and that they departed therefrom at about 12:30 o’clock A.M. Such testimony was corroborated by that of Jerry Wayne Bruno, Peggy Bruno, Mark Collins, and Mr. & Mrs. Rufus Ne-lands, the latter three of which were guests at the party.'

Nona and Jerald stated that they left the apartment a little past 7:00 o’clock P.M. Saturday, October 16, to attend a McNeese football game. That statement was substantiated by that of Jerry and Peggy Bruno, who testified that they were spectators along with Nona and Jerald. The latter two also testified that they attended the McNeese alumni dance thereafter and left its situs, the Civic Center, between 1:00 and 2:00 o’clock A.M. James and Betsy Robinson, Ronald Hayes, Sam Monticello, and Jeffery and Brenda Boudreaux stated that Nona and Jerald attended the dance and that they sat at a table with them.

In his oral reasons for judgment (Tr., pg. 420-424), the trial judge stated that he closely scrutinized the testimony of all of the witnesses and that he placed great weight and credibility upon the testimony of plaintiff’s witnesses. This Court, in reviewing the factual and legal conclusions of the trial court, is bound by the rule of law succinctly enunciated in the case of Canter v. Koehring Co., 283 So.2d 716, 724 (La. 1973):

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review, the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Citations omitted.

Defendant-appellant Walter Jerald Helms contends that the trial judge did not apply the proper burden of proof in his evaluation of his case. We cannot say that the trial court did not apply the burden of proof required in adultery cases, that is, evidence so convincing that it excludes all reasonable hypotheses other than that of guilt of adultery. We must presume that the trial court did apply the proper rule of law, for we have nothing from the record to indicate otherwise. The learned trial judge is a capable and experienced trial judge, and absent a contrary showing, we must presume that he applied the proper rule of law to the evidence in this case.

Adultery is rarely susceptible of proof with any irrefutable degree of certainty. All of the surrounding circumstances must be considered, and in the majority of cases adultery is proven by circumstantial evidence. From a review of this record, certainly there is strong and convincing evidence sufficient to support the trial court’s finding. For example, defendant-appellant definitely admitted to having spent two nights at Nona Allison’s apartment. A stronger case of circumstantial evidence could hardly ever be structured and presented. Without going into details about the inconsistencies in the testimony of defendant-appellant’s witnesses, of which the record reveals there are many, we will merely state that after a careful reading of the record, we conclude that there exists a reasonable evidentiary basis for the judgment of the trial court. Accordingly, we affirm its judgment.

All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . For the reason that the petition for divorce was filed in the same suit as was the suit for legal separation, Walter Jerald Helms is herein referred to as defendant-appellant, and Joyce Edna Helms is referred to as plaintiff-appellee.


author: MORIAL, Judge. SCHOTT, Judge,

text:
    Lloyd LEWIS, Sr. v. Attorney Lionel R. COLLINS.
    No. 8043.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1977.
    Rehearings Denied Sept. 9, 1977.
    Lloyd Lewis, Sr., in pro. per.
    A. M. Trudeau, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, BOUTALL, SCHOTT, MORIAL and BEER, JJ.
   MORIAL, Judge.

In 1964 plaintiff employed defendant attorney to handle a workmen’s compensation claim against his employer. Defendant filed a suit in plaintiff’s behalf in May, 1965, and the case was tried in May of 1967 with the result that plaintiff’s suit was dismissed. The basis for the suit was an accident which allegedly occurred on May 29, 1964. That case was appealed to this court and was affirmed in Lewis v. Celotex Corporation, 222 So.2d 647 (La.App. 4th Cir. 1969).

Plaintiff initiated these proceedings in November, 1969, claiming damages on the basis of defendant’s malpractice in connection with the handling of his claim. He alleged that the accident which produced the injury and attendant disability occurred in September, 1963, and that defendant had allowed his claim to prescribe. He also alleged a re-injury on May 29, 1964, and claimed that defendant had failed in his duty to him by neglecting to file in evidence V. A. Hospital records and to call available witnesses to prove his case. The case was originally tried in May, 1971, with the result that plaintiff’s suit was dismissed. On appeal to this court the judgment was set aside and remanded to the trial court for additional evidence, Lewis v. Collins, 260 So.2d 357 (La.App. 4th Cir. 1972).

The previous judgment of this court settled certain issues. We held that the defendant’s professional judgment in basing the compensation claim on the 1964 accident as opposed to the 1963 accident was a reasonable one, so that plaintiff is not entitled to recover against defendant on the theory that his claim based on the 1963 accident was allowed to prescribe by the fault of defendant. Furthermore, we held that defendant was not guilty of any negligence by his failure to call as witnesses in the compensation trial plaintiff’s brother and wife. However, we held that defendant did breach his responsibility to plaintiff when he failed to obtain the V. A. records or the V. A. physicians’ testimony.

We pointed out that we were “unable to say that the presentation of this (missing evidence) would have assured that plaintiff would win his case . . ; ” that the mere fact that defendant breached his obligation does not by itself entitle plaintiff to an award; but that plaintiff must prove that the breach caused damages, in this case the loss of the compensation suit. We concluded with the following:

“The question the trial court must determine on remand is whether, with the added evidence of the V. A. hospital records and perhaps testimony of the V. A. physicians, in addition to Dr. Brown’s opinion (and despite contrary evidence), the conclusion would probably have been reached that a herniated disc did occur as a result of the May 29, 1964 incident and did totally and permanently disable plaintiff or otherwise entitle him to benefits. If so, defendant is liable to plaintiff for the then appropriate amount of award of compensation.”

At the trial of the case on remand plaintiff produced the V. A. records along with the testimony of Drs. James Hinson, Ger-non Brown, Jr. and Kenneth Vogel. The V. A. record and the testimony of Dr. Hinson did indeed establish that on May 29, 1964, Lewis presented himself at the Veterans Hospital. The record of the Veterans Hospital recited that there was a long history of left sided back pain with radiation to the hip and knee and numbness of the toe. It was reported “pain is persistent but more severe in episodes after hard work several days. Coughing (increased) pain. Probably positive leg raising test. Story is suggestive of spinal disc pathology. Patient in moderate to severe pain at times (i. e., to night).”

As admitting officer for the day, Dr. Hin-son ordered an examination for urinary tract infection and an orthopedic evaluation. It was determined that Lewis did have a urinary tract infection and gave an impression of musculo-fascial strain. The findings did not warrant hospitalization, and since the V. A. had no out-patient treatment facility for Lewis, he was referred to his family doctor.

While this evidence gives some support to Lewis’ claims, all of the evidence in this case must be considered for a determination of workmen’s compensation disability. The trial judge, after considering all of the evidence, concluded:

“The court concludes that from all the facts under consideration petitioner has established at best a possibility of disability, which proof is insufficient for recovery. Roberts v. M. S. Carroll Co., Inc., et al, [La.App.], 68 So.2d 689. The Veterans Administration Hospital records, and the deposition of Dr. Hinson by themselves do not convince the court that the burden of proof was carried by petitioner to establish that he suffered a herniated disc as a result of the May 29, 1964 incident. Further, even coupling this evidence with the report of Dr. Brown as introduced in the workmens compensation suit, the court cannot conclude that petitioner has carried the burden of proof sufficient to grant recovery for total and permanent disability.”

The record supports the conclusion of the trial judge that plaintiff failed to carry the required burden of proof to establish that he suffered a herniated disc as a result of a May 29, 1964 on the job accident.

First, because the malpractice suit was tried by a different judge than the compensation suit itself, we believe it important to point out the finding of the trial judge in the compensation case, which we approved in our affirmance in Lewis v. Celotex Corp., 222 So.2d beginning at p. 648:

“While an examination by Dr. Gregoratti, his personal physician, on June 2, 1964 and June 8, 1964 indicated some muscle spasm, in the lumbar area, in view of plaintiff’s medical history of back problems, it would be most presumptuous to conclude that these symptoms resulted from an industrial accident in the absence of some proof of the accident. Examination and treatment by Dr. Logan, Dr. Gregoratti and Dr. Calicchia on June 22, 1964 revealed no objective orthopedic or neurological basis for plaintiff’s complaints, and he was discharged on July 24, 1964 by his physician, Dr. Gregoratti, with no positive findings.
“The law is quite clear that a plaintiff in a compensation case must establish his claim to a legal certainty and by a reasonable preponderance of the evidence. The only evidence supporting plaintiff’s claim here is his own testimony, and the medical evidence submitted does not sustain his position.”

Next, we note that although Lewis claimed to have been hurt on the job on September 17,1963, when he complained of pain in the groin, on September 18, 1963, when he complained of pain in the side and back, and finally on May 29,1964, when he took his complaints to the V. A. Hospital, there still remains only his testimony that he was hurt on the job. As to the first incidents, the witnesses he produced either did not remember any accident or did not see any. As to the last, not only did he not produce a witness, but he did not even report the accident. This at a time when, according to his testimony, his attorney was handling his 1963 workmen’s compensation claim. We further note his statement to Dr. Hinson on May 29 of his “long history” of left-sided back pain which seems consistent with Dr. Logan’s statement of “12 year history” on February 28,1964 and the statement of “13 year history” and “12 year history” in the V. A. Hospital records of September 2, 1964.

We believe it especially important to note some history of this man’s complaints in view of the testimony of Dr. Kenneth Vo-gel, who operated upon Lewis in 1968, performing an interlaminal removal of the L4 disc from the right side with inspection of the L5 disc. At that time, Lewis was being treated at the V. A. Hospital for degenerative disc disease. The doctor’s testimony makes it clear that the pathology he found could be caused equally by a job-related trauma or by degeneration caused by the aging process. Of course, the doctor’s treatment came a year after the trial, and cannot be considered as having anything to do with the attorney’s handling of the case. The importance of it now is to point up that the history given by the patient is persuasive of the determination of trauma or degeneration in this case. It is interesting to note the 1964 V. A. history of 12 years had in 1968 shrunk to 5 years as stated to Dr. Vogel.

Turning to Lewis’ medical history, we first note his complaints in September, 1963 with pain in the groin. Treatment was undertaken by the employer’s doctor, Dr. Sam Logan, for medical disability and not job-related accident disability. Dr. Logan could not find the cause of his complaints despite an exploratory operation, during which he removed Lewis’ appendix. There then follow a succession of doctors who examined this man with negative results. Later examinations began to show a suspicious narrowing of the disc spaces culminating in Dr. Vogel’s operation. According to the V. A. record in evidence, he was apparently treated later for other problems.

Considering all of the evidence, we find sufficient basis to support the conclusion of the trial judge that Lewis has not carried the burden of proof as stated in Roberts v. M. S. Carroll Co., Inc., supra. Accordingly, we cannot find that the action or non-action of his attorney caused his loss.

The judgment is affirmed.

AFFIRMED.

SCHOTT, Judge,

with whom REDMANN, Judge, joins, dissenting.

The majority’s summary of the evidence of record must be supplemented for an appreciation of my opinion.

Included in the V.A. records, first produced at the trial after remand, are reports of X-rays taken of plaintiff’s lumbar spine on March 2, 1964, and September 2, 1964, which are significant and will be later referred to in connection with the testimony of Dr. Vogel. They also contain a report of the treatment administered to plaintiff at the V.A. Hospital in July, 1968, when plaintiff was finally treated for his herniated disc. It should be emphasized here, as was mentioned in the previous opinion of this court, that it was not until after the workmen’s compensation case was tried (in May, 1967) that plaintiff’s herniated disc was definitely diagnosed and the surgery was performed on him by Dr. Vogel (in July, 1968). For this reason much of Dr. Vogel’s testimony is irrelevant to the issue of defendant’s malpractice since such evidence was obviously unavailable at the time the workmen’s compensation case was tried. Nevertheless, at least two points made by Dr. Vogel were pertinent and deserve mention here.

Dr. Vogel was asked to compare the two X-ray reports mentioned above which read as follows:

“3/2/64: MULTIPLE VIEWS OF THE LUMBOSACRAL SPINE REVEALS the vertebral bodies to be of normal height. No evidence of narrowing of the interver-tebral disc space is noted. Early hyper-trophic osteoarthritic changes are present, however, no evidence of spondy-lysis, spondylolisthesis or inflammatory or neoplastic disease is noted.”
“9/2/64: EXAMINATION OF THE LUMBOSACRAL SPINE REVEALS narrowing of the 3rd and 4th cervical interspaces with associated hypertrophic change. Findings are compatible with disc pathology at these levels. Failure of closure of the neural arch of SI is noted. Apophyseal, sacroiliac, and hip joints do not appear unusual. There is no evidence of fracture, spondylolisthesis, inflammatory, or neoplastic disease.
“CONCLUSION: Radiographic changes compatible with disc pathology at the level of the 3rd and 4th lumbar interspaces.”

The doctor testified that the X-ray report of March 2 was relatively normal, showing the degree of wear and tear in the back which would be expected from degenerative arthritis, whereas the second X-ray report did suggest an abnormal condition. He concluded that if there had been a traumatic incident between March and September “one could say that the disc incurred further damage at this time and now was exhibiting the narrowing [of the interverte-bral space] . . . ”

Dr. Vogel also testified that, based on the assumption that there was a traumatic incident in September of 1963, aggravated by a second incident in May of 1964, the necessity for the lumbar myelogram and laminec-tomy was the direct result of the initial injury.

At the trial of the workmen’s compensation case, a report by Dr. Gernon Brown, an orthopedist, March 19,1965, was introduced in evidence. He then reported that there was an impairment in the function of plaintiff’s back and expressed the opinion that the symptoms may be due to nerve root irritation, possibly from a herniated disc, and thought that plaintiff should undergo a myelogram at that time. At the trial of the malpractice case on remand, Dr. Brown was called as a witness for the first time. In his testimony he expanded considerably on what had been contained in the short letter report and quoted the following from his office record:

“Opinion: Examination of this patient reveals evidence of impairment in the function of the back.’ There is a decreased range of motion in the patient’s lumbar spine. In view of the patient’s complaints of numbness in both lower extremities together with the complaints of radiating pain on straight leg raising I believe his symptoms may be attributable to nerve root irritation.
“In my opinion, Mr. Lewis should undergo myelograph examination of his lumbar spine.”

Dr. Brown also expressed the opinion that as of March, 1965, plaintiff was disabled because of the impairment in the function of his back.

In reasons for the judgment now on appeal, the trial court considered the evidence presented at the trial on remand as to why the Veterans Administration Hospital records were not introduced at the workmen’s compensation trial. Based on the earlier opinion of this court in this malpractice proceeding, it was already determined that defendant’s failure to produce those records constituted a breach of defendant’s professional responsibility, and perhaps further evidence as to why the records were not produced was irrelevant at the trial on remand. Nevertheless, the court considered defendant’s testimony that the reason why the records were not produced was because of plaintiff’s decision not to execute a form required by the V.A. in order for him to authorize the release of the records, and the trial court specifically resolved the conflict in the testimony between plaintiff and defendant on this point in favor of plaintiff. This was a credibility call by the trial court which should not be questioned by us on this appeal.

The trial court discussed the testimony of Dr. Hinson, the entry in the V.A. records of the orthopedic evaluation and an X-ray report of September 2. He also mentioned a report made by a Dr. Jarrell in the V.A. record in which it was noted that plaintiff had no muscle spasm and did not require hospitalization at that time. The trial court then concluded as follows:

“The court must consider the testimony of Dr. Hart/Hunt, the orthopedic surgeon to have greater weight than that of Doctor Hinson, who although a resident doctor at the Veterans Administration Hospital was by his own admission a specialist in internal medicine. It seems logical that Dr. Hinson did not seriously disagree with Dr. Hart/Hunt’s diagnosis as he refused admission eligibility to petitioner on the basis of Dr. Hart/Hunt’s findings (deposition page 5).
“Two other doctors made notes in the hospital records, Drs. Jarrell and Hendler. Dr. Jarrell states there was no muscle spasm and no need for hospitalization. Dr. Hendler concluded ‘ . changes compatible with disc pathology
“The court concludes that from all the facts under consideration petitioner has established at best a possibility of disability, which proof is insufficient for recovery. Roberts v. M. S. Carroll Co., Inc., et a1 [La.App.], 68 So.2d 689. The Veterans Administration Hospital records, and the deposition of Dr. Hinson by themselves do not convince the court that the burden of proof was carried by petitioner to establish that he suffered a herniated disc as a result of the May 29,1964 incident. Further, even coupling this evidence with the report of Dr. Brown as introduced in the workmens compensation suit the court cannot conclude that petitioner has carried the burden of proof sufficient to grant recovery for total and permanent disability.”

I believe the trial judge reached this erroneous conclusion because he took an incorrect approach to the problem which was before him after the case was remanded and, in part, because he failed to consider some of the evidence which was presented at the trial on remand.

As I appreciate plaintiff’s burden of proof, he undertook to establish that except for defendant’s breach of his responsibility in handling of his workmen’s compensation case it is more probable than not that he would have won that case. I do not believe that this is precisely the same burden that plaintiff had in the workmen’s compensation case because the inquiry was not simply whether plaintiff was injured on May 29, 1964, and whether that injury caused him to be disabled as of the time of the trial in May of 1967, but instead whether defendant failed in his duty toward plaintiff in the handling of the case and whether that failure more probably than not caused his workmen’s compensation case to be dismissed.

As was pointed out by this court in the opinion affirming the dismissal of the workmen’s compensation case, the critical issue in that case was whether plaintiff had an accident on his job on May 29, 1964, at all. At that trial the testimony of the plaintiff’s wife, brother, and sister-in-law were not introduced nor were the V.A. records produced. I am convinced that had this evidence been presented at the compensation trial the court would have been convinced that the on-the-job accident did occur. Unfortunately, our task here is complicated by the fact that we held in our earlier opinion of this malpractice case that it was not negligence on defendant’s part which caused the failure of the production of the lay witnesses but rather was plaintiff’s fault, and we are bound by that conclusion. Thus, our inquiry is whether the trial judge hearing the workmen’s compensation case would have decided that plaintiff suffered an accident on the job on May 29,1964, had he reviewed the V.A. Hospital records in addition to the evidence that was then presented to him in 1967.

It is regrettable that the malpractice case was not tried before the same trial judge who heard the compensation case because he would surely be in the best position to decide whether he would have made a different decision had these records been available to him, but unfortunately, this is not the case and, like the trial judge in the malpractice case, we must now decide what that original trial judge would have decided with this additional evidence.

The trial judge in the instant case, in his reasons for judgment, did not address himself to that issue but after discussing the V.A. report decided the case against plaintiff on the basis that a disability was not established resulting from the May 29,1964, incident. From those reasons the trial judge seems to have concluded that the incident itself was established.

The V.A. Hospital record of May 29 standing alone does not contain a specific statement by plaintiff that he was injured on the job that day. It does nothing more than establish that he did seek medical attention on the night of the accident. But there is an entry in the V.A. records on the following morning to the effect that plaintiff did sustain an accident at work on the previous day and his pain increased that evening. I believe that had the trial judge hearing the workmen’s compensation case seen these records he would have decided that plaintiff proved the occurrence of the accident.

The next question is whether the trial judge hearing the workmen’s compensation case would have concluded that the plaintiff was disabled at the time of the trial as a result of that accident had defendant produced evidence which was available to him. The trial judge in the instant case decided this issue adversely to plaintiff, and on this point I disagree.

The above quotation from the trial court’s reasons for judgment contains errors of fact which led him to arrive at an erroneous conclusion on this issue. In the first place, he did not attach great weight to Dr. Hinson’s testimony observing that he was a specialist in internal medicine as opposed to Dr. Hart/Hunt, the orthopedist. The trial judge apparently reached the conclusion that while Dr. Hinson felt plaintiff was disabled on May 29 and 30, 1964, Dr. Hart/Hunt did not find this to be the case, and Dr. Hinson “refused admission eligibility to petitioner on the basis of Dr. Hart/Hunt’s findings . . . ” We do not derive from the testimony of Dr. Hin-son and the reports by him and Dr. Hart/Hunt any connotation that plaintiff was not hurt. As we said, Dr. Hart/Hunt specifically referred on May 30 to the fact that plaintiff had the last episode of hurting himself by twisting and lifting on the day before while at work and that this pain increased during the night before. He specifically diagnosed musculo-fascial strain. The record does not say why plaintiff was denied admission to the hospital but we surmise that Veterans Administration Hospital may have refused admission because this was considered to be an on-the-job accident for which he might not have been entitled to treatment at the V.A. Hospital.

The trial judge referred to other doctors who made notes in the hospital records, Drs. Jarrell and Hendler, and he quotes from Dr. Jarrell’s report that there was no muscle spasm and no need for hospitalization. This note was made by Dr. Jarrell when plaintiff was examined at the Y.A. Hospital on March 2, 1964, almost three months before the accident. Thus, Dr. Jarrell’s findings had nothing to do with the question of whether plaintiff was disabled as a result of this accident except for the fact that his back was predisposed to the injury perhaps as a result of the earlier injury of September, 1963. Furthermore, the trial judge’s reference to Dr. Hendler has to do with the X-ray report of September 2,1964, which is quoted above in this opinion. Standing alone that report means little if anything, but by reference to the testimony of Dr. Vogel this X-ray report does corroborate that plaintiff’s accident of May 29, 1964, caused substantial changes between the third and fourth lumbar vertebrae.

The trial judge makes no reference to the testimony of Dr. Vogel and Dr. Brown taken at the trial on remand, which we believe forms the basis of another error in his findings.

As noted, Dr. Brown testified without equivocation that plaintiff as of March, 1965, should have been subjected to a mye-logram. Dr. Vogel testified that the changes in the X-ray photographs of March and September, 1964, suggested that a traumatic incident had occurred in the meantime. There is no explanation in this record from defendant as to why no further orthopedic examination was made of plaintiff from Dr. Brown’s examination in March, 1965, until the trial of the workmen’s compensation case in May of 1967. We also have at the trial of the malpractice case testimony from Dr. Vogel that plaintiff’s condition for which he was eventually operated on began in May, 1964, and we must conclude that if plaintiff had been subjected to competent orthopedic examination and/or myelographic examination between March, 1965, when he was seen by Dr. Brown, and the date of the trial in 1967, his disability would have been established to the satisfaction of the trial judge. We think further that armed with the reports from Dr. Brown and the X-ray reports from the Veterans Administration Hospital, defendant’s duty to plaintiff encompassed that of consulting further with medical experts who, in all probability, would have made the necessary tests on plaintiff and would have concluded as of May, 1967, plaintiff was disabled as a result of the accident of May, 1964.

This has been a difficult case to decide. We have been required to review not only the activities of an attorney in the handling of the contested workmen’s compensation trial along with the preparations incident thereto, but also the probable decision of the trial judge in the workmen’s compensation case in the light of additional evidence which may have been presented by the attorney. In his brief to this court, plaintiff concedes that the evidence is weak with regard to proof of disability, but I am persuaded by his argument that the proper steps were not taken in the approximately two years between the filing of the suit and the time of the workmen’s compensation trial for defendant to work up the evidence which he knew or should have known would ultimately be necessary if he were to adequately represent his client. The weakness of the evidence presented was the result of defendant’s failure and was not the fault of plaintiff who relied on the professional competence of defendant to handle the case properly.

I respectfully dissent.

      . His attorney testified that Lewis had not consulted him for job-related injury but for a possible malpractice claim against the doctor who treated him for his September, 1963 complaints.


author: HOOD, Judge. WATSON, Judge,

text:
    Elois DOYLE, Plaintiff-Appellant, v. EMPLOYER’S FIRE INSURANCE COMPANY Et Al., Defendants-Appellees.
    No. 5949.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Rehearing Denied Sept. 15, 1977.
    Writ Refused Nov. 11, 1977.

      Gravel, Roy & Burnes by Chris J. Roy, Eugene P. Cicardo, Garrett & Ryland by Donald M. Garrett, Alexandria, for plaintiff-appellant.
    Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, for defendants-ap-pellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

Miss Elois Doyle seeks damages for personal injuries sustained by her when an automobile she was driving collided with a car being driven by Mrs. David C. Caplan. Defendants are Mr. and Mrs. Caplan and their insurers. The case was tried by jury, with the result that a special verdict was returned finding that Mrs. Caplan was not negligent. Judgment was rendered by the trial court in favor of defendants, and plaintiff appealed.

The issues are whether Mrs. Caplan was negligent and, if so, whether Miss Doyle also was negligent barring her from recovery.

The accident occurred on April 23, 1974, at the intersection of two hard-surfaced streets in Alexandria. Miss Doyle was driving south on the 36-foot wide favored street at a speed of 25 to 30 miles per hour. Mrs. Caplan, who was driving west on the narrower inferior street, stopped before entering the intersection, and then proceeded into it at a slow rate of speed. The front of the Doyle automobile struck the right front side of the Caplan car. Mrs. Caplan had traversed more than half the distance across the intersection before the collision occurred, while Miss Doyle had travelled only a few feet into it. The speed limit was 25 miles per hour.

The testimony of the drivers of the vehicles involved in the accident is conflicting in some respects. There is a reasonable evi-dentiary basis, however, for the jury to conclude that Miss Doyle was at least one-half block, or about 150 feet, from the intersection when Mrs. Caplan entered it. Considering the special verdict which was rendered, we think the jury concluded that plaintiff was a substantial distance from the intersection when Mrs. Caplan entered it, and that the latter was justified in assuming that she could complete the negotiation of that crossing before the Doyle vehicle reached it.

We believe that the result reached by the trial court is correct. We prefer to base our judgment, however, on a holding that plaintiff is barred from recovery by her own contributory negligence.

In a deposition taken prior to the trial Miss Doyle testified repeatedly that she was approximately in the “middle of that block” or in the “center of the block” when she first observed the Caplan car in the intersection, and that the defendant vehicle had reached a point about six feet into the intersection when Miss Doyle first saw it. Other evidence shows that the block was 295 feet long, and that the “center of the block” was about 150 feet from the edge of the intersection. At the trial, Miss Doyle could not recall how far she was from the crossing when she first observed the Caplan car, but she conceded that “I did go some distance before we hit.” She visited the scene of the accident after the above deposition was taken, and after that visit she reasoned that she “couldn’t have been” in the middle of the block when she first saw Mrs. Caplan.

Mrs. Caplan’s version of the accident is that she stopped at a stop sign, looked to her right and left but saw no approaching vehicles, and that she then entered the intersection at a very slow rate of speed. After she had traversed at least half the distance across the intersection she saw the Doyle car approaching from her right. She stated that plaintiff’s vehicle was “right on me” and she realized that the driver did not intend to stop. She then immediately applied her brakes and brought her car to a stop. She maintains that her car was stopped when the collision occurred.

The jury obviously accepted Mrs. Ca-plan’s version of the accident, and we cannot say that it erred in doing so. We find that Miss Doyle was about 150 feet from the crossing when Mrs. Caplan entered it, and that Miss Doyle saw or should have seen the Caplan car in the intersection ahead of her in ample time to enable her to bring her car to a stop before it reached the crossing.- If she had exercised reasonable care, we think the accident would have been avoided.

When the motorist on a superior street realizes, or should reasonably realize, that the inferior motorist has entered, or will enter, the intersection ahead of him and will obstruct the superior motorist’s passage through the crossing, the latter is guilty of negligence if he fails to take every reasonable precaution which is available to him in an effort to avoid a collision. Meynier & Dillman Hardware Co. v. Aronson, 229 So.2d 365 (La.App. 4 Cir. 1969); Randall v. Baton Rouge Bus Company, 240 La. 527, 124 So.2d 535 (1960); Roussell v. Strug, 225 So.2d 34 (La.App. 4 Cir. 1969).

In the instant suit, we have found that Miss Doyle had ample time within which to avoid a collision after she realized, or reasonably should have realized, that Mrs. Ca-plan had entered the intersection ahead of her and would obstruct her passage through it. We conclude that she was negligent in failing to bring her car to a stop before she reached the intersection, that her negligence was a proximate cause of the accident, and that she is barred from recovery by her own contributory negligence.

We find no error in the judgment of the trial court which rejects plaintiff’s demands. Since we have concluded that plaintiff was guilty of contributory negligence, it is unnecessary for us to determine whether Mrs. Caplan also was negligent.

The judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

DOMENGEAUX, J., concurs in the result.

WATSON, J., dissents and assigns reasons.

WATSON, Judge,

dissenting:

In this intersectional accident, the driver of one vehicle either: (1) ran the stop sign; or (2) stopped and then pulled out without seeing the approaching motorist. It is a simple case which should present no difficulty because the driver who faced the stop sign was obviously at fault and the driver with the right-of-way was obviously not at fault. However, counsel for defendant shrewdly demanded trial by jury. From the record it appears that much of the trial was spent on the subject of damages, and the jury, for some reason, held the driver who failed to yield to be free of negligence. This is a manifestly erroneous conclusion. It is without a reasonable evidentiary basis. Ms. Caplan admitted candidly that she did not even see the approaching car until she had pulled out into Vance Avenue.

Now, on appeal, the majority decides the case on a different basis from that of the jury, holding that the approaching motorist was guilty of contributory negligence. The defendant had the burden of proving contributory negligence, and the physical facts here do not show contributory negligence. The only evidence is plaintiff’s statement in her deposition that she was in about the middle of the block when she first spied the other vehicle. At the trial of the case, she said she had been back to the scene and frankly did not know exactly where she was when she saw the other car.

The majority holds plaintiff contributorily negligent on the basis of the deposition estimate of her position. To decide the entire case on such an approximation when the other driver was clearly at fault is wrong.

I respectfully dissent.


author:
DOMENGEAUX, Judge.
      HOOD, Judge

text:
    Mrs. Willis ROZAS and Mrs. Cora Sonnier, Plaintiffs-Appellees, v. Joseph A. GUILLORY, Dixie Auto Insurance Company, and Hanover Insurance Company, Defendants-Appellants.
    No. 5986.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Rehearing Denied Sept. 15, 1977.
    Writ Refused Nov. 11, 1977.

      Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Timothy J. McNamara, Lafayette, Lewis & Lewis by Seth Lewis, Jr., Opelousas, for defendants-appellees.
    Earl B. Taylor, Opelousas, for plaintiffs-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This case was consolidated at trial and remains so on appeal with the case of Rozas v. Guillory, et al., La.App., 349 So.2d 457, in which a separate judgment is being rendered this date.

The cases arose out of an automobile accident which occurred on July 20,1975, in Opelousas, Louisiana, between a vehicle which was owned and operated by defendant Joseph A. Guillory, and a vehicle being operated by Mrs. Gladys K. Rozas in which Mrs. Willis Rozas and Mrs. Cora Sonnier were passengers.

At trial all parties stipulated that the accident was caused solely by the negligence of Joseph A. Guillory (also known as Alfie R. Guillory), and limitations were placed on the damages to be recovered by each injured party, who were Mrs. Willis Rozas, Mrs. Cora Sonnier, and Mrs. Gladys K. Rozas.

Prior to the accident, Hanover Insurance Company had issued an automobile policy with uninsured motorist protection features to Mrs. Willis Rozas, one of the guest passengers, which also covered Mrs. Cora Son-nier, the other guest passenger. This policy would only apply if Joseph A. Guillory were not insured under a policy which had been issued by Dixie Auto Insurance Company, but which Dixie claimed had been cancelled prior to the accident at the request of Guil-lory.

Thus the cases went to trial with the only issue being whether or not the automobile liability insurance policy issued to Guillory by Dixie had been cancelled prior to the accident.

The trial judge held that Guillory had never requested the cancellation, and thus the policy was in full effect. We affirm the holding of the district court.

Joseph Guillory had in effect some time prior to March, 1975, an automobile insurance policy number EAD 826203 with Dixie Auto Insurance Company. On April 18, 1975, the following handwritten letter was received by Dixie:

“P. 0. Box 524
Opelousas, Louisiana
March 29, 1975
Dixie Auto Insurance Co.
2308 4th Avenue, North
Birmingham, Alabama
Dear Sir:
Cancel insurance policy numbered EAD 826203.
Sincerely,
/s/ Alfie R. Guillory”

On May 2, 1975, Dixie allegedly mailed a notice of cancellation to W. J. Fruge, Guil-lory’s insurance agent or broker who obtained the policy. A copy of that notice was also sent to General Motors Acceptance Corporation, the holder of Guillory’s mortgage note. Dixie also sent to Fruge the unearned premium as required by La.R.S. 22:637.

At trial, Guillory denied ever having written the letter requesting cancellation of his policy. Fruge also denied sending the letter on behalf of Guillory.

The trial judge held that the purported signature of Guillory on the letter requesting cancellation was not the true signature of Guillory. He reached this conclusion by comparing this signature with other bona fide signatures of Guillory, and did not resort to the aid of expert opinion.

As the trial was coming to a close, defendants requested that the trial judge later reopen the evidence so that expert opinion might be sought on this issue. The trial court denied this request in his written reasons for judgment. Defendants cite this denial as manifest error. We disagree.

Where the insurer defends on the ground that the policy was cancelled, the insurer carries the burden of establishing facts which will relieve liability. I.C. Realty, Inc. v. Clifton Conduit Company, etc., 291 So.2d 422 (La.App. 4th Cir. 1974).

Guillory disavowed his signature to the letter of cancellation. Under I.C. Realty, Inc., supra, it is incumbent upon the insurer Dixie to prove that the signature was valid. See also C.C. 2244 and 2245. Dixie offered no witness or expert to prove the validity of the signature. It disputes the authority of the trial judge to decide this issue without the benefit of expert testimony.

In the venerable case of Vickers v. Coburn, 7 La.App. 206 (1927) the court stated:

“Some question is raised in argument as to the right of the trial judge to make a comparison of handwritings and to draw conclusions from his own examination of the writings, but such a proceeding is clearly sanctioned by Article C.C. 2245 and Art. C.P. 325. It would indeed be a strange anomaly if judges could not make comparisons of handwritings, but would have to depend solely upon so-called expert testimony, which, although generally helpful, is by no means infallible. Watts vs. Collier, 140 L. 99; 72 South. 822.”

More recently, in White v. Williams, 313 So.2d 333 (La.App. 1st Cir. 1975), the appellate court made its own comparison of the handwriting in question to verify the comparison made by the trial judge. Although the trial judge in that case had benefit of expert testimony, we see no reason to disapprove the comparison made in the instant case. Defendant knew in advance of trial that he would need experts on this issue, but waited till the end of trial to consider obtaining them. Under those circumstances we do not feel the judge abused his discretion in not granting a continuance for the purpose of receiving additional testimony; especially in view of his authority in determining this factual question.

Although there appears to be a mysterious cloud surrounding the circumstances of the so-called cancellation letter, we cannot afford ourselves the luxury of speculation in finding manifest error on the part of the district judge. There is a sufficient evidentiary basis to conclude that neither Guillory or Fruge wrote or mailed the letter. Such being the ease, the so-called cancellation by Dixie is not effective because it fails to meet the requirements of LSA-R.S. 22:636.1 or LSA-R.S. 22:637.

We decide this case upon the issue of the disavowed signature. The issue of whether Fruge was an agent or a broker is therefore pretermitted.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs are assessed against defendant-appellant, Dixie Auto Insurance Company.

AFFIRMED.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I believe that the judgment appealed from should be reversed and that the case should be remanded to the trial court with instructions to appoint a handwriting expert, as requested by defendant Dixie Auto Insurance Company.

The principal question presented is whether the insured, Joseph A. Guillory (also known as Alfie Ray Guillory), signed the letter dated March 29, 1975, addressed to Dixie Auto Insurance Company, instructing that insurer to cancel the policy which is at issue here. Guillory said he didn’t sign it. The evidence convinces me that he did. All parties agree that the judgment of the trial court should be reversed if Guillory, in fact, signed that letter.

During the trial, defendant Dixie requested that the court appoint a handwriting expert to examine the letter, and to compare it with other documents in the record containing the signatures of Guillo-ry, and to make a report of his findings to the court. Dixie offered to bear all of the expenses incurred in obtaining the opinion of the handwriting expert. The trial judge refused that request. He assigned as his sole reason for doing so that Dixie was aware of the defense in advance of trial and that it waited until near the close of the trial to make the request. The trial judge conceded that it had the power to appoint such an expert, even without a request, but that “this addresses itself to the discretion of the court.” I think the trial judge abused his discretion in refusing to grant Dixie’s request. A number of circumstances compel me to arrive at that conclusion.

In the first place, the appointment of the expert would not have delayed the completion of the trial. The trial of the case began on May 20, 1976, and it was on that date that Dixie requested the appointment of the expert. Prior to the submission of that request, the court announced that the trial would be held open for ten days in order to enable the parties to obtain a document to file in evidence and to propound additional questions to one witness. The court thus had already determined that the trial would be continued for other reasons. Actually, the trial was delayed more than five weeks, until July 26, 1976, at which time additional evidence was presented. The opinion of the handwriting expert certainly could have been obtained within that period of time, and there thus would have been no delay in disposing of the case.

Second, it is apparent that a fraud either is or is not being perpetrated on Dixie and on this court. The means of resolving that question fairly and finally is available to the court, at no expense to anyone except the party which requests that we use it I think this court should do what appears to me to be plainly necessary to see that the matter is resolved justly to all parties. My view is that the trial court should have appointed a handwriting expert ex proprio motu, even if a request to that effect had not been made. Since the trial court did not do so, we should remand the case with instructions that that be done.

Third, I think the evidence is overwhelming that the letter requesting cancellation of the policy was signed by Guillory. The trial judge, after refusing to allow a handwriting expert to examine the available documents and to testify, undertook to compare the signatures appearing on some documents in the record and to determine from that comparison whether Guillory actually signed the letter. It is apparent from his written reasons for judgment that the judge experienced considerable difficulty in distinguishing the signatures. He eventually concluded that defendant had signed two documents (D-ll and D-13), and that he had not signed two others (D-l and D-8, the latter being the letter requesting cancellation). My examination of these signatures convinces me that all of those documents were signed by the same person. I concede that I am not a handwriting expert, but I feel that there at least is some basis for my views, and that the opinion of a handwriting expert is needed. The trial judge found a “break” between two letters, and a different “configuration” of an “R” in two of the signatures, and on the basis of that finding he determined that Guillory did not sign the letter. It is significant, I think, that the document marked D-l, being one of the documents which the trial judge found was not signed by Guillory, was the application made by Guillory for the insurance policy which is at issue here. W. J. Fruge, the insurance agent or broker who joins Guillory in contending here that the policy was valid and had not been can-celled, also signed the same application. As far as I can determine, neither Fruge nor Guillory question the latter’s signature to Exhibit D-l, and I feel that the trial judge and my colleagues have erred seriously in finding that Guillory did not sign that application. As already noted, the trial judge based his conclusion that Guillory had not signed the letter almost entirely on his finding that the signatures on D-l and D-8 appeared to be the same, and that Guillory had not signed D-l, the above application.

Fourth, the circumstances show that Guillory requested cancellation of the policy. The letter requesting the cancellation was received by Dixie, and Dixie promptly sent out notices of the cancellation, long before the accident occurred. A check was issued to the agent or broker, Fruge, on May 14, 1975, for the amount of the unearned premium on the policy, and that check was mailed to Fruge. Fruge testified at first that he did not receive that refund check until about 45 days after the accident. Later, however, when he was confronted with the original check which showed that he deposited it to his account on May 23, 1975, he conceded that he received the refund check almost a month before the accident occurred. The check showed plainly on its face that the policy had been can-celled. There can be no question, therefore, but that Fruge knew that the policy was cancelled long before the accident occurred, despite the contrary position he took at the trial.

Fifth, my colleagues concede that there is a “mysterious cloud surrounding the circumstances.” They state, however, that they “cannot afford ourselves the luxury of speculation in finding manifest error on the part of the district judge.” I feel differently. I think we should Insist on the luxury of determining the truth.

It seems to me that the trial judge erred seriously in finding that the policy had not been cancelled. There at least is a serious question, however, as to whether the signature of Guillory was forged on the letter. I feel that in view of the “mysterious cloud” which surrounds the circumstances here, the majority should reverse and remand the case with instructions that a handwriting expert be appointed, at Dixie’s expense, to examine the available documents and report to the court.

For these reasons, I respectfully dissent.

      . Compare Louisiana Code of Criminal Procedure Article 460.1.


author: DOMENGEAUX, Judge. HOOD, J.,

text:
    Gladys K. ROZAS, Plaintiff-Appellee, v. Joseph A. GUILLORY, and Dixie Auto Insurance Company, Defendants-Appellees.
    No. 5987.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Rehearing Denied Sept. 15, 1977.

    Writ Refused Nov. 11, 1977.
    Before HOOD, DOMENGEAUX, and WATSON, JJ.

       Hood, J., noted for a rehearing.

   DOMENGEAUX, Judge.

This case was consolidated for trial and remained so on appeal with the case of Rozas and Sonnier v. Guillory, Dixie Auto Insurance Company, and Hanover Insurance Company, La.App., # 5986, 349 So.2d 453, in which a separate judgment is being rendered this date.

For the reasons assigned in that case, the judgment of the district court is affirmed. Costs are assessed against defendant-appellant, Dixie Auto Insurance Company.

AFFIRMED.

HOOD, J.,

dissents for the reasons assigned in Rozas, et al. v. Guillory, et al., La.App., 349 So.2d 453 (No. 5986 on our docket).


author: WATSON, Judge. PER CURIAM:

text:
    Harold DUBOIS, Plaintiff-Appellant, v. RELIANCE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6075.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Rehearing Denied Sept. 15, 1977.

      Thomas & Dunahoe by G. F. Thomas, Jr., Natchitoches, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King by Herschel Richard, Mayer, Smith & Roberts by Caldwell Roberts, Ronald R. Inderbitzin, and Walter Hunter, Jr., Shreveport, Brit-tain & Williams by Jack 0. Brittain, Gaha-gan & Gahagan by Marvin F. Gahagan, Natchitoches, for defendants-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Harold Dubois, filed this suit to recover damages for a battery inflicted by defendant, Henry Wilson Frick, co-owner and manager of the Lake Club near Campti, Louisiana. Western World Insurance Company, Inc., defendant liability insurer of the Lake Club, has a policy provision excluding “claims arising out of Assault & Battery” (TR. 49). Frick’s comprehensive personal insurer, Reliance Insurance Company, has a policy provision excluding coverage for injury arising out of business pursuits. (TR. 23) The other defendants are the Lake Club partnership and two of the partners sharing its ownership, H. Wilson Frick’s wife, Elizabeth Harrison Frick, and his mother-in-law, Mrs. Lucille Harrison (Warner). Plaintiff Dubois was awarded special damages against Frick individually in the amount of $2,241.82 but was given no general damages on the ground that his language prior to the battery was a mitigating factor.

Dubois has appealed, contending that the trial court erred: (1) in not holding the Lake Club, a commercial partnership, and the individual partners liable in solido for the tort committed by Frick in the course of partnership business; and (2) in failing to award general damages. No assignment of error is made about the trial court sustaining the insurers’ policy defenses and dismissing the suit as to them. We agree that the two insurance companies have no liability-

The Lake Club is a bar, with a card table, pool table, restaurant, and dance hall. A band was playing on the night of the battery, June 18, 1975. Plaintiff Dubois was unarmed and had been drinking and shooting pool. He was in the company of his brother, Leon B. Dubois, and a truck driver, who was riding with them. The battery was preceded by a dispute between Frick and Harold over a check Harold wanted to cash to pay his losses at pool. It was around midnight, near closing time, and the Dubois brothers had been at the Lake Club approximately an hour and a half.

Following Frick’s refusal to cash Harold’s check in the desired amount, Harold and L. B. Dubois started cursing Frick. Frick testified that he expected trouble and told the brothers to leave. According to Frick and a bartender, Arthur Rivers, L. B. and Harold left the bar but then returned and proceeded to curse Frick again. Frick said he wanted to keep order in his establishment and swung the barrel of his pistol at L. B.’s head. It hit Harold when L. B. ducked. After knocking Harold out, Frick turned back to the bar.

Harold received a depressed skull fracture, two or three inches in diameter. Dr. Richard H. Ashby, a Shreveport neurosurgeon, testified in deposition that a rounded section of Harold’s skull was broken in several pieces. Ashby operated to remove bone fragments from the surface of the brain, or dura, which was compressed but not torn. There was swelling beneath the dura. He estimated that Harold would recover completely in six months.

Frick testified that the Lake Club is owned by an oral partnership composed of his mother-in-law, Mrs. Lucille Harrison (Warner), her other daughter, Mrs. Frances Harrison Julian (not named as a defendant), him and his wife. The original owners were Mr. and Mrs. Frick, and Frick’s in-laws, Mr. and Mrs. Harrison. After Mr. Harrison’s death, his widow retained a one-fourth interest and the other one-fourth was inherited by his two daughters, giving Mrs. Frick and Mrs. Julian each Váth. Mrs. Harrison (Warner) and Mrs. Frick draw a sum of money every month as salary or profits. Mrs. Frick is the bookkeeper. Mrs. Julian has never received any money from the “partnership”. Frick has been the manager since 1961. None of the other alleged partners were on the premises at the time of the battery.

The Lake Club had a net profit of $7,143.26 in 1974 and a net profit of $9,407.00 in 1975. The 1974 and 1975 income tax returns of Mrs. Lucille Harrison Warner show no partnership income, nor do those of Mr. and Mrs. Frick. The Lake Club income is reported by the Fricks as that of a sole proprietorship. Mr. and Mrs. Frick had an adjusted gross income of $10,-905.20 in 1975.

I. The first issue is whether the trial court erred in denying plaintiff Dubois any general damages for his pain and suffering.

Mere words do not justify a battery but can be considered in mitigation of damages. Morneau v. American Oil Company, 272 So.2d 313 (La., 1973).

There is no error in the trial court’s conclusion that plaintiff’s curses and Frick’s anticipation of trouble serve to mitigate the award of damages.

Harold Dubois’ injury, a depressed fracture of the skull, was serious, and would justify a substantial award under other circumstances. But, considering the mitigating factors as well as a limited ability by Frick to respond, the award is within the trial court’s much discretion. LSA-C.C. art. 1934.

II. The second issue presented is whether the alleged partnership and other individual partners should have been cast in judgment.

The evidence does not show the existence of a partnership. There was no mutual participation in the profits. LSA-C.C. art. 2801. The mere fact that the term “partnership” was used does not prove the existence of a partnership when the circumstances do not show the necessary intent to share profits and losses. Darden v. Cox, 240 La. 310,123 So.2d 68 (1960). A husband and wife cannot be commercial partners. Purcell v. Stewart, 131 So.2d 905 (La.App. 4 Cir. 1961). Therefore, we conclude that the trial court correctly ruled that only H. Wilson Frick should have been cast in judgment.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs are assessed against plaintiff-appellant.

AFFIRMED.

On Application for Rehearing

PER CURIAM:

Our opinion is amended to assess all costs on appeal against plaintiff-appellant; the application for rehearing is otherwise denied.