author: REDMANN, Judge. GULOTTA, Judge, MORIAL, Judge,

text:
    Mrs. Vera Ruppel BAUMGARTNER et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 7653.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.
    Frans J. Labranche, Jr., Connolly, La-branche & Lagarde, New Orleans, for plaintiffs-appellees.
    Harvey L. Strayhan, Sessions, Fishman, Rosenson, Snellings • & Boisfontaine, New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA, BOU-TALL, MORIAL and BEER, JJ.
   REDMANN, Judge.

Defendants, an automobile driver and his insurer, appeal from a judgment in favor of plaintiffs, the widow and children of a pedestrian who died from injuries after being hit by defendant driver. Plaintiffs by answer seek increase in quantum. We conclude that the physical evidence prevents the trial court’s finding of liability.

The accident occurred at night. Defendant was driving with his headlights on in his left lane of the side of Canal boulevard going towards Lake Pontchartrain. Mercury vapor lights on the median were also lit. Disregarding defendant driver’s testimony because the trial judge disbelieved him, we must still find that defendant was driving at approximately 30 mph, as calculated by an expert from skid lengths, in a 35 mph zone as he approached French street, an inferior side street for which traffic on Canal boulevard is not obliged to stop or yield. The pedestrian was crossing Canal from defendant’s right, on the lake side of French street. The boulevard side he was to traverse was 28 feet 3 inches wide, with a white-line lane marker 11 feet from the median.

The critical facts are that defendant’s automobile stopped 20 feet past the intersection, leaving skid marks of 35, 38, 45 and 46 feet. That 46' mark satisfies us that defendant had reacted, by applying his brakes hard, 46' before he stopped. In the .75 second reaction time at 30 mph he had travelled 33 feet, so that his reaction began when he was approximately 79 feet from where he stopped. It would take him approximately two seconds, in addition to the .75-second reaction time, to travel the 46' of skid, as he decelerated from about 30 mph (44 feet per second) to 0 mph. (The expert is wrong in saying it would take one second: it would take one second only if no deceleration occurred, that is, only if the car continued at 30 mph until the instant of stopping.) In those 2.75 seconds a pedestrian walking 3 mph (4.4 fps), which the expert testified was an appropriate average walk, would travel 12.2 feet. Thus, because the pedestrian was a foot or two to the driver’s left of the middle of the 11-foot left traffic lane (and, we assume, at about the middle of the 11-foot-wide marked pedestrian crossing beginning at the corner) when struck, and because the car therefore travelled about 14.5 feet in about one second after striking him, he would have been about a foot to the right of the left traffic lane when defendant’s actual .75-second reaction time began. (If we suppose that the driver should have seen the pedestrian a third of a second earlier, when the driver would have been 14.5 feet further away and could have stopped just before hitting the pedestrian, then the pedestrian would have been 2.5 feet to the right of the left lane.) In either case, whether one or 2.5 feet away from the lane in which defendant was moving, the pedestrian was not yet into the danger zone when the driver became unable to stop. (If we add another second or two, the pedestrian is even further removed from danger.) When the driver thus had no chance left to stop, the pedestrian was still some five feet away from the projected line of the car’s right side. It was thus the pedestrian who had, theoretically, the “last” “clear” chance to avoid the collision. We can hardly oblige a stranger to a greater duty of care towards a pedestrian than the duty the pedestrian has to care for himself. If we are to say that the driver should have seen, then in simple fairness we would have similarly to say that the pedestrian should have seen: and the pedestrian should have seen at a time when he could still have avoided the collision although the driver could not.

The driver did not have the last clear chance, not even an unconscious last clear chance. The pedestrian’s contributory negligence therefore remains a bar to his and his survivors’ recovery. See Bergeron v. Department of Highways, 1952, 221 La. 595, 60 So.2d 4.

Reversed; dismissed at plaintiffs’ cost.

GULOTTA, Judge,

dissenting.

I dissent.

The record supports the trial judge’s findings that defendant-driver, William N. Morgan, was negligent in failing “to see what he could or should have seen” and that Morgan had the last clear chance to avoid the accident. Moreover, the evidence leads me to conclude further, as the trial judge apparently did, that the contributorily negligent pedestrian, Henry H. Baumgartner, did not have such a last clear chance. Accordingly, I would affirm the lower court’s finding of liability.

Elmon F. Randolph, an expert in accident investigation and reconstruction upon whom the trial judge relied, stated that Canal Boulevard, at the location of the accident, was 28'3" wide. Canal Boulevard consisted of two marked lanes of traffic running toward the lake and a “parking lane” on the side opposite the neutral ground. Randolph testified that an approaching motorist with an unobstructed view should have seen a pedestrian crossing the street when the pedestrian had reached a point approximately 6 feet into the roadway, i. e., a point beyond the parking lane. According to this expert, an observant driver traveling at Morgan’s speed would have seen the pedestrian at a distance of 158 feet to 237 feet from the point of impact. This computation is based on the walking speed of a pedestrian of 2xh to 3 miles per hour and the location of the accident approximately 6 feet from the neutral ground. According to Randolph, if impact occurred within 2 to 3 feet of the neutral ground, the estimated distance traversed by the vehicle, under similar circumstances, would be approximately 189 to 281 feet. Randolph testified that the stopping distance of a car traveling at a 30 to 31 mile-per-hour speed would be approximately 74 feet.

Morgan, on the other hand, testified that he was traveling at a speed of between 30 and 35 miles per hour and did not see Baumgartner until the pedestrian was at an approximate distance of 10 to 15 feet in front of Morgan’s vehicle. According to Morgan, Baumgartner at that time was located upon or slightly left of the center line of the roadway and defendant’s vehicle had just entered the intersection. Morgan testified that he slammed on his brakes and blew his horn immediately upon seeing the pedestrian but was unable to stop before striking him.

In view of this testimony, it was reasonable for the trial judge to conclude Morgan was negligent in failing to see the pedestrian attempting to cross Canal Boulevard when he, Morgan, had reached a minimum distance of 189 feet from the point of impact. If Morgan had maintained a proper lookout, he could have averted the accident by either slowing his vehicle or making a timely stop.

The record also supports the trial judge’s implicit finding of decedent’s contributory negligence. Decedent moved from a position of safety into the path of approaching traffic (although at a minimum distance of 189 feet) and was apparently oblivious to the automobile, with headlights on, bearing down on him. Decedent’s failure to observe the oncoming traffic constitutes contributory negligence which continued until the time of impact.

The evidence, however, also provides a reasonable basis for the conclusion that defendant-driver had the last clear chance to avoid the accident. For this doctrine to be applicable, a plaintiff must show that: 1) the pedestrian was in a position of peril of which he was unaware or from which he was unable to extricate himself; 2) the driver should have, using reasonable care, discovered the pedestrian’s peril; and, 3) the driver had a reasonable opportunity, at the time he should have discovered the peril, to avoid the accident. Pennino v. Ebeling, 255 So.2d 480 (La.App. 4th Cir.1971); Kontomitras v. New Orleans Public Service, Inc., 314 So.2d 441 (La.App. 4th Cir.1975).

A pedestrian (such as Baumgartner) who is, albeit negligently, oblivious to traffic traveling toward him is in a position of peril. Jackson v. Cook, 189 La. 860, 181 So. 195 (1938); Rottman v. Beverly, 183 La. 947, 165 So. 153 (1935). Defendant testified that the pedestrian did not turn or look in the direction of the automobile despite the noise from the brakes and horn. The pedestrian continued to walk in a normal fashion, apparently oblivious to the impending danger.

If the driver had been attentive, the pedestrian’s peril would have been discoverable. Morgan could have either slowed his vehicle or stopped in time to avoid the accident. Under the apparent peril doctrine, Morgan had the last clear chance to avoid the accident. As the Louisiana Supreme Court stated in Guilbeau v. Liberty Mutual Insurance Company, 338 So.2d 600, 604 (La.1976):

“Under Louisiana jurisprudence, an operator of a vehicle or heavy equipment who observes, or who should by the exercise of reasonable care have observed, a pedestrian in a position of peril of which the latter is apparently unaware, is responsible for injuries caused when his vehicle strikes the pedestrian in his path, despite any contributory negligence on the part of the latter; providing that, after the duty to make such observation arose, the operator could reasonably have avoided the accident.”

See also Pierre v. Landry, 341 So.2d 891 (La.1977).

In addressing the issue of the pedestrian’s last clear chance, I am mindful that the doctrine of last clear chance is a “two-edged sword” which may be used by the defendant to bar recovery by the plaintiff, if the latter also had the last clear chance to avoid the accident. Bergeron v. Department of Highways, 221 La. 595, 60 So.2d 4 (1952); Glatt v. Hinton, 205 So.2d 91 (La.App. 4th Cir.1967), writ refused, 251 La. 861, 206 So.2d 712 (1968); Stewart v. Tessitore, 222 So.2d 584 (La.App. 4th Cir.1969). The crucial test in such cases is whether the con-tributorily negligent plaintiff had an equal or better opportunity to avoid the accident than did the negligent defendant.

Applying this rule to the facts of our case, I conclude that Baumgartner did not have the last clear chance to avoid the accident. It is more probable than not that Baumgartner’s senses were dulled; and I distinguish, therefore, the facts of the instant case from those in Bergeron, supra, and Glatt, supra. Morgan testified that Baumgartner had appeared intoxicated at the time of the accident. Both Morgan and the police officer investigating the scene immediately following the accident testified that they had smelled whiskey on Baum-gartner’s breath. The record also reveals that the pedestrian had an opened whiskey bottle on his person at the time of impact, and that he had a history of drinking. Though the testimony does not indicate that Baumgartner was staggering as he crossed the street,1 conclude that this post-collision evidence of alcohol consumption demonstrates that the pedestrian did not have the capability to avoid the accident. Unlike the plaintiffs in Bergeron and Glatt, he was not a sober pedestrian or cyclist who merely failed to look up at the car approaching him. Under the circumstances, I conclude that Baumgartner did not have the last clear chance to avoid the accident.

For the foregoing reasons, I respectfully dissent from the majority’s reversal of the trial court’s judgment.

MORIAL, Judge,

dissenting.

I dissent for the reasons assigned by Gu-lotta, J.

      . The expert testified he established the coefficient of friction (u) at .74, which would approximate speed (v) at 30.14 mph and time (t) at 1.85 seconds for 41' (and 31.9 mph and 1.96 seconds for 46') full braking distance (d). The formulas are v2 = 2u (32.2)d and t = v 32.2u.

      . Defendant testified his car was “the usual distance you would drive from a curb . two feet, three feet”, and that the pedestrian was to the left of center of his car when hit, “about in the area where your left headlight would be”. This testimony would place the pedestrian at between three and 4.5 feet from the curb when struck. The center of the 11-foot lane would be 5.5 feet from the curb.

      . The “apparent peril” or “unconscious last clear chance” doctrine is well-established in Louisiana jurisprudence. Jackson v. Cook, 189 La. 860, 181 So. 195 (1938); Fontenot v. Freudenstein, 199 So. 677 (La.App. Orl.1941); Franicevich v. Lirette, 241 La. 466, 129 So.2d 740 (1961); Haas v. Southern Farm Bureau Casualty Insurance Company, 321 So.2d 380 (La.App. 4th Cir.1975), writ refused, 323 So.2d 133 (La.1975).

      . Where a plaintiff child on a bicycle was determined to have the last clear chance.

      . Where a plaintiff pedestrian with an umbrella also had the last clear chance.

      .See Jackson v. Cook, supra, where plaintiff pedestrian was a staggering drunk.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Succession of Joseph Peter FERRAND.
    No. 8096.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      W. Larry Floyd, James J. Durio, Favret, Favret & Demarest, New Orleans, for plaintiff-appellee.
    Frank P. Letellier, II, New Orleans, George W. Giacobbe, Kenner, for defendant-appellant.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   REDMANN, Judge.

Because there is testimony from two neighbors that decedent and his legatee were living together in a sexual relationship a year before his last illness and from a number of witnesses that the legatee sought to defeat an eviction proceeding by testifying that she was the “common-law wife” of decedent, the trial judge’s conclusion of open concubinage is supported by the record and we cannot substitute our judgment for his; Canter v. Koehring, La. 1973, 283 So.2d 716.

The fact that the legatee maintained her apartment in a public housing project (using it also for some of her work as a cosmetician) cannot of itself defeat the concubinage’s openness. A simple conflict of evidence does not prevent a conclusion of open concubinage by the trial judge; Succession of Battiste, La.App. 4 Cir. 1962, 145 So.2d 668, cert. denied.

Affirmed.


text:
    Mrs. Doretha Shavers, widow of Joseph BROWN v. Harrison BRIGHT.
    No. 8133.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.
    Fernand F. Willoz, III, Meyer Sabludow-sky, New Orleans, for plaintiff-appellant.
    J. Paul Demarest, Favret, Favret & De-marest, New Orleans, for defendant-appel-lee.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   REDMANN, Judge.

Both parties appeal from a judgment which awarded plaintiff tenant $1,600 for all damages from a falling branch from a tree on defendant landlord’s premises.

There is evidence which would have supported a contrary conclusion on liability— such as hospital records reporting that plaintiff twice explained that her slightly injured arm resulted from a fall. Alternatively, quantum could have been smaller for the minor injury involved.

There is, on the other hand, other evidence that would support a conclusion that the injury lasted long beyond the six weeks that the trial judge concluded was its duration (and therefore caused the additional $1,300 of medical expenses which plaintiff incurred starting five months after the accident.)

But there is also evidence which does support the conclusions of the trial judge (including that plaintiff could not reasonably have believed that the later $1,300 medical expenses were necessary because of the tree incident, thus distinguishing Hillebrandt v. Holsum Bakeries, Inc., La.App., 4 Cir., 1972, 267 So.2d 608). We are not in a position to substitute our judgment for his; Canter v. Koehring, La.1973, 283 So.2d 716.

Affirmed.


text:
    Anna COSTA v. WEMBLEY INDUSTRIES, INC., et al.
    No. 8412.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearings Denied June 7, 1977.
    Dan R. Dorsey, River Ridge, for plaintiff-appellant.
    James L. Donovan, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellees.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   REDMANN, Judge.

Plaintiff appeals from the denial of penalties and attorney’s fees under La.R.S. 22:658 for defendant insurer’s failure to resume payment of workmen’s compensation benefits.

The statute penalizes non-payment which is “arbitrary, capricious, or without probable cause”. Evidently the trial judge deemed this not such a-non-payment. Relevant circumstances include: first, plaintiff had been in an automobile accident (not further described in the record) nine days after her .fall at work (for which she was already being treated); second, the initial orthopedist had found no indication of herniated disc (despite his qualified approval to the treating physician for return to work “on a trial basis”); third, when plaintiff thereafter again complained, that same orthopedist re-examined her and still found no “muscle spasm or other signs of organic disease”; and fourth, when plaintiffs personal physician wrote to inform the insurer (three and a half months after the first treating physician had pronounced her fit to return to work and compensation payments had been terminated) that a discogram showed a ruptured disc, he wrote “it is absolutely impossible to stipulate the causation of the herniation of the disc, although, we feel that it can be due to slippage, falls, improper lifting, etc.”

We accept as within the fact-finding province of the trial judge the determination that these circumstances made the causation of the disc injury questionable.

However, we note that defendant offered no evidence of any other probable cause (not even the automobile accident — whether a light bump or a severe collision is not shown). Since plaintiff admittedly had a compensable back injury initially, which never became wholly symptom-free, defendant had no reasonable hope that a trial court would not conclude that the herniated disc confirmed within a few months was, more probably than not, the result of the fall at work. Because defendant had no evidence and no legal theory to escape liability, its refusal to resume compensation payments must be held as “arbitrary, capricious or without probable cause” within R.S. 22:658. See Walker v. Gaines P. Wilson & Son, Inc., La., 1976, 340 So.2d 985; Seal v. Lionel F. Favret Co., 1959, 238 La. 60, 113 So.2d 468.

The judgment appealed from is amended to award penalties of 12% on all overdue weekly compensation payments and attorney’s fees of $3,000, at defendant’s cost.


author: LEMMON, Judge. SCHOTT, Judge,

text:
    Mrs. Annette Gray Johnson, widow of Henry JOHNSON v. Robert L. POWELL, Stephens Chevrolet, Inc., and Liberty Mutual Insurance Co.
    No. 7722.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Windhorst, Heisler, De Laup & Wysocki, Melvin Ripp, Jr., New Orleans, for plaintiff-appellant.
    Bruce J. Borrello, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

Mrs. Henry Johnson has appealed from a judgment which dismissed her suit to recover damages for the wrongful death of her husband in an automobile-pedestrian accident. The principal issue on appeal is the applicability of the last clear chance doctrine.

The accident occurred at 10:00 p.m. at the intersection of Jefferson Highway and Shrewsbury Road. Robert Powell was traveling east on Jefferson, which was a divided highway with three 12-foot wide lanes for eastbound traffic and also' a left turning lane at that intersection. Shrews-bury was a two-lane, two-way undivided street, 54 feet in width. The intersection was controlled by a signal light.

Powell had entered Jefferson about two blocks before the intersection and was driving in the center of the three travel lanes. Johnson was crossing from north to south, moving from the neutral ground to the sidewalk. Although Powell stated he never saw Johnson until the time of impact, all witnesses (in hopeless conflict on other points) agreed that some skidding occurred before the pedestrian was hit, indicating that prior to the impact Powell had seen and reacted to some stimulus and that there was sufficient additional time for his brakes to lock and begin skidding.

The trial court found, in written reasons, that Powell was traveling within the posted speed limit of 35 miles per hour as he approached the intersection; that Powell entered the intersection on a green light; and that Johnson crossed on an unfavorable light in an intoxicated condition. While there was also other evidence from which a contrary conclusion could reasonably be reached, there is sufficient credible evidence to support these findings, and we cannot say these factual findings were manifestly erroneous.

The judgment, however, held Powell negligent for failing to exercise proper vigilance and to keep his car under proper control. Nevertheless, the suit was dismissed because of Johnson’s contributory negligence.

On appeal Mrs. Johnson, in addition to urging manifest error in the factual findings discussed above, argues the applicability of the doctrine of last clear chance. She contends that Johnson was in a position of peril from which he was unable to extricate himself and that Powell should have discovered Johnson’s peril while he (Powell) had a reasonable opportunity to avoid the accident.

Since Powell’s car, while in the middle lane, struck Johnson with the center of the hood, Johnson had walked approximately 30 feet (crossing 2V2 lanes) from the median to the point of impact. In the meantime Powell was traveling at 35 miles per hour or 51 feet per second, perhaps ten times faster than Johnson who was walking at a normal rate (perhaps three miles per hour, or four to five feet per second). Other significant factors in assessing Powell’s behavior are that there was little or no other eastbound traffic and that Johnson was a dark complexioned black man wearing dark clothes.

We agree that Powell should have seen Johnson earlier. However, the penalty the law imposes upon a driver for failing to exercise proper vigilance is that the driver is presumed to have seen that which he should have seen.

As to Powell’s initial negligence, we note that if at some earlier point in time he had seen Johnson violating the law and crossing against the light (and we presume in law that he did see this conduct earlier), Powell had the duty to take reasonable precautions against hitting Johnson. Thus, Powell arguably was negligent not only in failing to see Johnson earlier, but thereafter in failing to avoid striking him.

As to the determination of last clear chance, however, Powell (still presuming he had seen Johnson earlier) would have been reasonable in assuming when Johnson first left the median that the pedestrian would stop at some point before stepping directly into his (Powell’s) lane. By the same token Johnson was not in a position of peril from which he could not extricate himself until just before he reached the lane in which Powell was traveling. Therefore, if Powell had seen Johnson (whom all witnesses described as walking normally, without staggering) two or three seconds earlier, there was nothing to indicate at that moment that Johnson (then barely in the left lane or perhaps still in the turning lane) was in peril. Compare Bergeron v. Department of Highways, 221 La. 595, 60 So.2d 4 (1952). Furthermore, since the doctrine of last clear chance applies to both parties (Bergeron, supra), either party at that point could have avoided the accident, and Johnson had an equal (and perhaps superior) chance to do so.

Moreover, the doctrine of last clear chance contemplates that the defendant (assuming he saw what he should have seen when he should have seen it) must have a reasonable opportunity to avoid the accident after the plaintiff is in a position of peril from which he cannot extricate himself. Two or three seconds before Powell sensed the need to take action, Johnson could have avoided the impending danger by merely stopping. But when Johnson continued walking and assumed a position of peril from which he could not thereafter extricate himself, Powell no longer had a reasonable (much less clear) chance to avoid the accident.

This accident occurred because an intoxicated pedestrian crossed the street on an unfavorable signal in complete disregard for oncoming traffic. While the motorist under the circumstances should have seen the pedestrian earlier (and was negligent in not doing so), this factor standing alone does not fulfill the requirements for applicability of last clear chance.

The judgment is affirmed.

AFFIRMED.

SCHOTT, Judge,

dissenting:

After a trial which, with respect to the liability of defendant, consisted of the testimony of defendant and his wife, two police officers who investigated the accident and three other witnesses, the trial judge made various findings of fact which include the following: 1) Powell had been traveling at approximately 35 miles an hour as he approached the intersection; 2) decedent had been standing on the median; 3) as Powell approached the intersection decedent in an intoxicated condition stepped from the median with the red light facing him and proceeded to walk south across the left travel-lane and into the middle travel-lane where he was struck by Powell’s automobile; 4) as Powell approached the intersection a green light faced him and continued to face him as he reached the intersection; 5) Powell did not see the deceased walking into the path of his vehicle until decedent was struck.

From these factual findings the trial judge arrived at the following specific conclusions:

“Powell was negligent in not keeping his vehicle under proper control and in failing to exercise proper vigilance.
“Henry Johnson was also negligent in walking across the highway with a red traffic signal light facing him and in the face of approaching traffic and his negligence was a substantial contributing cause of this tragic accident.”

The trial judge dismissed plaintiff’s suit on the basis of her husband’s contributory negligence.

On appeal, plaintiff takes issue with the trial judge’s factual findings and conclusions and seeks a reversal on those facts. She also urges that the doctrine of last clear chance applies and supports a reversal. On this last point, I agree with her.

In order for the doctrine of last clear chance to apply, the following conditions must exist: 1) The plaintiff was in a position of peril and he was unaware of the peril or unable to extricate himself from that position. 2) Defendant actually discovered plaintiff’s peril or should have discovered plaintiff’s peril. 3) At the time that defendant discovered or should have discovered plaintiff’s peril, defendant had a reasonable opportunity to avoid the accident. Foxworth v. State Farm Mutual Automobile Ins. Co., 308 So.2d 348 (La.App. 4th Cir. 1975).

The trial judge’s finding that defendant was negligent is supported by defendant’s own admission that he did not see the decedent at any time until the moment of impact. Of course this admission must be considered in the light of the skid marks which show that defendant saw decedent a few moments before the impact, i. e., when he began to apply his brakes. In any event, this intersection was adequately lighted as was the highway approaching the intersection. It is clear that had defendant seen what he should have seen and been in control of his vehicle he would have had a reasonable opportunity to avoid the accident. But my colleagues have found that the first requirement for the application of the doctrine did not exist because decedent was not in a position of peril at the time defendant should have discovered his presence on the road ahead of him. They say that decedent might have been in the process of traversing the left lane of the highway as defendant approached but until decedent actually stepped into the center lane in the path of defendant’s vehicle he was not in a position of peril. Stated differently, they hold that defendant was not under any duty to anticipate that decedent was going to leave the left lane where he was safe and step into the center lane where he was sure to be struck unless defendant stopped sooner or changed his course.

The majority view seems to be supported by this court’s opinion in Robertson v. Di Gerolamo, 224 So.2d 118 (La.App. 4th Cir. 1969) where a drunken pedestrian who stepped from a neutral ground into the path of defendant’s vehicle was denied recovery pursuant to the following discussion:

“. . .We accept the uncontradicted accounts of the accident given by DiGerolamo and his companion which clearly establish Plaintiff stepped into the path of the Defendant-vehicle when the driver could do nothing to avert his injury. We cannot presume that, because Plaintiff was intoxicated, his intoxication should have been known to the approaching driver. All witnesses testified he stood in the neutral ground area not looking toward the approaching traffic but looking straight 'ahead. We think it was reasonable for the driver to assume the Plaintiff had observed what was obvious, i. e., a traffic signal that cautioned him to wait before crossing. It is not only the motorist who is charged with a duty to keep a proper lookout, but pedestrians as well

But defendant’s first problem is that his failure to see decedent at all until the last moment before the accident prevented him from exerting even the slightest effort to avoid it. Had he seen decedent crossing that left lane of traffic, obviously bound for the center lane within a few steps thereof, he would surely have been under some duty to sound his horn, put on his brakes at least to slow his vehicle if not to stop it, or move into the right lane which was clear. He took none of these steps not because of any intelligent appraisal of plaintiff’s position, as in the Robertson case, but because he didn’t see decedent despite the fact that he should have seen him.

In effect, my colleagues hold that defendant was under no duty to take the measures suggested to avoid the accident because if he had seen decedent approaching the center lane, decedent was not in a position of peril at that time. Only at the moment when decedent entered the center lane was he in a position of peril and at that moment defendant had no reasonable opportunity to avoid the accident. My answer is that one operating an automobile at 35 miles per hour on a collision course with a pedestrian about to enter his path cannot be said to act reasonably under the circumstances when he simply continues along that collision course without taking any precautions with the intractable hope that the pedestrian will, a) see him, and b) stop before a collision occurs. It would be inhumane to hold otherwise.

Once the conclusion is reached that decedent was in a position of peril as he crossed the left lane and was about to enter the center lane, the question becomes whether decedent was unaware of the peril or unable to extricate himself from that position. The trial judge found and the record amply supports the finding that decedent was highly intoxicated at the time of the accident. According to one of defendant’s experts decedent was nearly comatose. From this finding it follows that decedent was probably unaware of the peril he was in. While voluntary intoxication does not normally provide a party in an accident with any special consideration and while normally his conduct is judged on the basis of what it should have been had it not been for the intoxication, the doctrine of last clear chance seems to depart from this principle. For instance, in Foxworth v. State Farm Automobile Ins. Co., supra, the plaintiff, while in a drunken, unconscious state lying in a driveway, was allowed recovery. And in Jackson v. Cook, 189 La. 860, 181 So. 195 (1938) the plaintiff, while drunk and staggering along the road, was allowed recovery. The citation of these cases is not intended to suggest that there is any evidence that defendant should have realized decedent in the instant case was drunk, but they do seem to support the view that the last clear chance doctrine is truly a humanitarian doctrine designed to afford recovery to a helpless plaintiff where ordinarily the doctrine of contributory negligence would bar his recovery even where that plaintiff is helpless because of his own voluntary intoxication.

I would reverse the judgment of the trial court.

      . The investigating officer described the lighting as “dark with continuous street lights”. In the 17 photographs taken immediately after the accident, it was difficult to see people in dark clothes who were some distance from the camera.
      We disregard the officer’s testimony about skid marks as not proved to have been made by Powell’s car. The photographs show two sets of diverging skid marks, both of which ended some distance from the point Powell’s car came to rest.

      . The fact of intoxication does not excuse a pedestrian from extricating himself from a potential position of peril by merely refraining to continue on his same course.


author: LEMMON, Judge.

text:
    Paul A. ARCENEAUX v. Miles J. BLAZEK, Jr. a/k/a M. James Blazek, Jr.
    No. 7726.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Dufour, Levy, Marx, Lucas & Osborne, Dwight W. Norton, New Orleans, for Judith Arceneaux, third party defendant-appellant.
    ■Satterlee & Mestayer, Robert J. A. Williams and A. D. Freeman, Jr., New Orleans, for Miles J. Blazek, Jr., third party plaintiff-appellee.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

Paul Arceneaux instituted this suit to recover the balance due on a loan made to Miles Blazek during the existence of Bla-zek’s marriage to Arceneaux’s daughter, Judith. Blazek filed a third party demand against his former wife and obtained a judgment by default which (1) awarded Blazek the sum of $300.00 and (2) decreed Judith Arceneaux “jointly liable with said Miles J. Blazek, Jr. on any judgment which may be rendered in favor of Paul A. Arcen-eaux”. Judith Arceneaux has appealed.

The $300.00 Award

This award was apparently based on Judith Arceneaux’s liability for half of the payments Blazek testified that he made on the loan after dissolution of the community.

In confirming the default, Blazek stated without explanation or comment that his wife “has accepted the benefits of the community” and that he had paid Arceneaux “approximately $600.00 or $650.00” on the debt after the dissolution of the community. Without considering the assignment of error relating to sufficiency of evidence, we conclude this portion of the default judgment must be set aside.

A wife generally may not be held personally liable to a creditor for a community debt, unless it is proved that the wife unconditionally accepted the community after its dissolution. C.C. art. 2409; Schreiber v. Beer’s Widow and Heirs, 150 La. 676, 91 So. 149 (1922). There is no evidence in this record of any express acceptance by Judith Arceneaux or of any act by her which would constitute tacit acceptance.

Furthermore, this is not a claim by a creditor against the wife, but an attempt by the husband to recover a portion of his payments on the creditor’s claim for which he is undoubtedly liable (if proved as a community debt). While a husband who pays a community debt with his own funds after dissolution of the community is entitled to assert that claim against the wife [Pior v. Giddens, 50 La.Ann. 216, 23 So. 337 (1897)], the claim is more properly referred to the settlement of the community in which all of the community assets and debts are taken into consideration. This husband’s third party demand against the wife for partial payment of a single community debt (even if it were proved that the wife was liable for community debts) is improper as an attempt to settle only part of the community. Compare Pennison v. Pennison, 249 La. 587, 187 So.2d 747 (1966).

Judgment Decreeing Liability for Contribution

This portion of the judgment decrees Judith Arceneaux jointly liable for a judgment which may be rendered in the future.

C.C. art. 2103 grants a defendant who is sued on an obligation the right, if be is cast, to enforce contribution against a codebtor. A third party demand to enforce contribution is proper as an incidental demand in the action to enforce the obligation itself. It is improper, however, to obtain a default judgment on this third party demand prior to trial of the principal demand, because the defendant must be cast on the principal demand prior to, or at the same time as, the rendition of the judgment decreeing the right to enforce contribution.

Furthermore, the failure to prove the wife’s liability for this community debt would also require the setting aside of this portion of the judgment.

For these reasons, the judgment of the trial court is set aside, and the case is remanded for further proceedings.

SET ASIDE AND REMANDED.

      . It is arguable that the default judgment exceeds the petition’s demand in violation of C.C.P. art. 1703. In his third party petition Blazek failed to allege payment in any amount on the loan sued upon (and in the answer included in the same pleading, he denied making the loan and making any payments thereon). He merely alleged that any debt incurred at the time stated in the petition was a community debt, for which his former wife was jointly liable, and that the community had not been settled and had not been renounced by her. However, his prayer did request that the wife be held liable for one-half of any payments (in an unspecified amount) made on the debt after dissolution of the community.


text:
    Wesley LEWIS and Rosa Lewis v. KEHOE ACADEMY and Kehoe Day Camp and Swimming School, Inc., et al.
    No. 8089.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Charles R. Chesnutt, III, New Orleans, for plaintiffs-appellants.
    Perrin C. Butler, New Orleans, for defendants-appellees.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

The issue in this appeal is whether Wesley and Rosa Lewis, the aunt and uncle of a child of tender age who had resided with them for two years, can recover against the operators of a day camp for their mental suffering and loss of love and affection sustained after the State of Louisiana, upon finding the child in a bruised condition, instituted a neglect proceeding which resulted in their niece’s being removed from their voluntary custody.

In their petition the Lewises alleged that they enrolled the child in a day camp; that the child, through defendants’ negligence, ingested rat poison which caused a chemical effect on her blood; that when a minor trauma, which ordinarily would not have caused external manifestation, occurred shortly thereafter, the child developed apparent serious bruising; and that the State, upon being informed of the bruises, removed the child from their home (apparently under a neglect proceeding). The petition alleged damages as follows:

“Plaintiffs herein have suffered extreme mental hardship, anguish and humiliation, loneliness and disruption from the loss of the companionship of the child Ann Marie Black and from the action taken against them by the State”.

In a supplemental petition they further alleged damages suffered as a result of loss of the child’s love and affection.

Defendants filed exceptions of no right of action and no cause of action and motions for summary judgment and judgment on the pleadings, all of which were maintained by the trial judge. Hence this appeal.

The exception of no cause of action raises the issue as to whether the law affords a remedy to anyone for the particular grievance alleged, while the exception of no right of action raises the issue as to whether the particular plaintiff has the right to invoke the remedy. 9 Tul.L.Rev. 17, 29-30 (1934-1935); Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). While the exception of no right of action was also pleaded, we find the exception of no cause of action dispositive of this case.

No evidence may be introduced to support or controvert the exception of no cause of action. C.C.P. art. 931. In ruling on the exception, the court must accept as true all of the facts pleaded in the petition and must determine whether, on these facts assumed to be true, plaintiffs are entitled to the relief sought.

In this case there are numerous facts stated in the briefs filed in both courts which are not asserted in the petition, and it is therefore with some difficulty that we confine our review to. the allegations of the petition; however, this is an essential limitation in adjudicating an exception of no cause of action.

The sparsity of asserted facts obscures the identity of the precise legal issue sought to be framed. As we understand the petition, however, the Lewises are claiming that they sustained damages when the State successfully prosecuted a neglect action against the person who legally had custody of the child and who had informally allowed the child to reside with the Lewises. They apparently are seeking reparation for deprivation of the “right” to have the child continue to reside with them. Additionally, the Lewises have asserted that the action instituted by the State (which resulted in this deprivation) would not have occurred except for the combination of two circumstances: (1) the ingestion of rat poison because of defendants’ negligence and (2) the happening of minor trauma which caused minor bruises that appeared greatly exaggerated in degree because of the chemical effect of the poison. In other words they postulate that there would have been no bruises except for the poison ingestion and there would have been no judgment of neglect except for the bruises.

The Lewises apparently are not questioning the State’s right to remove a neglected child under R.S. 13:1570 from the person legally responsible for the child’s care. However, the allegation that the poisoning effectively caused the bruises to be mistaken for abusive treatment is essentially an allegation that the child was not really neglected, and this argument should be (or should have been) raised in the neglect proceeding itself.

Since the judgment of neglect has not been attacked in this suit (if indeed the judgment can be collaterally attacked), it must be assumed for the purpose of this suit that the neglect proceeding was properly instituted and conducted, that all circumstances were properly considered (including the circumstance of - the effect of the rat poison), and that the finding of neglect was correct. Under this assumption of validity of the judgment of neglect, the law does not afford a remedy to anyone for deprivation of the right to have the child continue living at its former residence, and it matters not what called the neglected condition of the child to the attention of the State authorities. Accordingly, the Lewises have no cause of action against a person whose negligence was a factor in calling the attention of the State authorities to the neglected condition of the child.

It is not clear what is meant by the allegation that the Lewises have suffered “from the action taken against them by the State”. There are no allegations suggesting that any action was instituted against the Lewises personally or that defendants’ alleged negligence was related to such an action. Furthermore, if the Lewises arguably can assert a cause of action against anyone for the wrongful bringing of a neglect action, they had to allege (and ultimately prove) that the action was wrongfully brought. Not only was there no such allegation, but the result of that proceeding indicates that it was correctly brought.

Finally, the operators and employees of a day camp have a duty to exercise reasonable care in preventing the young campers from ingesting rat poison. That duty, however, does not encompass the risk that, if the poison causes accentuation of subsequently incurred bruises, the juvenile court will reach the erroneous conclusion that the child was neglected. There simply is no ease of association between the asserted damages and the rule of law on which the duty is based. Hill v. Lundin & Associates, 260 La. 542, 256 So.2d 620 (1972).

The judgment is affirmed.

AFFIRMED.

      . Adjudication of a motion for judgment on the pleadings is similarly limited. C.C.P. art. 965. The summary judgment procedure allows consideration of other evidence, but none was filed in this case.

      . The judgment in the neglect case was appealed to this court. See State in Interest of Black, La.App., 310 So.2d 174. However, for purposes of the exception of no cause of action, we do not refer to any facts or conclusions stated in our opinion in that case.

      . Although one brief suggests the Lewises were defamed in connection with the neglect proceeding, the petition does not allege a defamatory communication by any of the defendants, nor does it seek damages resulting from defamation.


author: GULOTTA, Judge.

text:
    BARKER'S # 413 CORPORATION v. Lane N. MELTZER.
    No. 7938.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Montgomery, Barnett, Brown & Read, Stanley McDermott, Jr., Nathan T. Gisclair, Jr., New Orleans, for plaintiff-appellee.
    Shushan, Meyer, Jackson, McPherson & Herzog, Donald A. Meyer, New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

Defendant appeals from the trial court’s judgment enjoining construction of a 9,000-square-foot structure in the parking area in front of Barker’s Department Store on Veterans Highway. We affirm.

On June 10, 1966, Barker’s # 413 Corporation (hereinafter referred to as Barker’s) entered into a lease agreement with Lane N. Meltzer, defendant-lessor, who was to construct a 66,200-square-foot building for occupancy by Barker’s and to surface the ground in front of the building fronting on Veterans Highway for use by the tenant as a parking area. The proposed construction was completed according to plans and occupancy commenced. The Barker’s building and parking lot were situated on a single tract of land owned by the lessor. The remaining portion of the tract, owned by Meltzer and also fronting on Veterans Highway to the east of Barker’s, was not leased to plaintiff. This portion of land remained vacant and was reserved by the lessor for future development.

In 1976, during the term of the lease, defendant notified lessee of his intention to construct a 9,000-square-foot building in the parking lot area then utilized by Barker’s. After discussion between the parties without resolution to Barker’s satisfaction, this injunction suit followed.

It is defendant’s contention that the lease, by its terms, clearly provides the lessor with the right to construct additional rental space in the parking area now used by Barker’s, provided the lessor affords parking to the lessee which conforms to the provisions of the building code of Jefferson Parish. In support of his argument, defendant relies on Article I of the lease and particularly emphasizes the last sentence of the second paragraph. Article I reads as follows:

Article I
“Lessor hereby leases, lets and demises unto Lessee a building to be constructed on land situated in Jefferson Parish, Louisiana, fronting on Veterans’ Highway, forming a part of Lot ‘Z’ shown on plan of survey by Adloe Orr, Civil Engineer, dated August 24, 1964, and outlined in red on a copy of said plan annexed hereto, upon which there shall be erected a one-story store building having a total floor area of approximately 66,200 square feet to be constructed by and at the expense of the Lessor in accordance with outline specifications which have heretofore been agreed to.
“Lessor agrees to construct, hard-surface, and stripe all of the areas on the premises shown as parking areas, at ground level, on the aforesaid plans and specifications and on the map or plan attached hereto and marked Exhibit ‘B’, such striping to be done for orderly distribution and placing of automobiles, in accordance with Lessee’s plan. Lessor and Lessee agree that Lessor shall have the right to build additional rental space and Lessor agrees that at all times the parking shall conform to the provision of the building code of the Parish of Jefferson, State of Louisiana.”

It is Barker’s contention, on the other hand, that the lease clearly provides toies-see the use of all existing parking area. Citing Article I of the lease, Barker’s argues that the contemplated construction of “additional rental space” is to take place only on the undeveloped portion of the tract (east and contiguous to the leased area and owned by Meltzer) not leased to Barker’s. Reading this provision in pari materia with others in the lease, Barker’s contends that the prospective tenants (in the buildings to be constructed on the Meltzer-owned property contiguous to Barker’s building and parking area) would have joint use of the existing parking area, together with Barker’s, provided that parking requirements of the Parish code are met. The other lease provisions relied on by plaintiff in support of these arguments are:

Article IV
“Lessee shall pay as rent for the demised premises including, but not limited to, the building to be erected thereon, and joint use of all parking and other areas as shown on the map or plan attached hereto or made a part hereof, the sum or sums hereinafter set forth . . . .”
Article V(c)
“The premises demised to the Lessee, including but not limited to the building and all parking areas, shall be substantially completed . . .
Article V(d)
“Lessor covenants and agrees that throughout the term and any extended term of this lease it will provide the outside parking areas, on and as part of the herein demised premises, mentioned and described in ARTICLE I hereof, and that at all times during the term and any extended term hereof the Lessee and its sublessees, concessionaires, licensees and all other persons having rights under or through the Lessee, and its and their officers, agents, employees, customers and invitees, shall have the right to use said parking areas without any payment to the Lessor for the use thereof. * *”

Examining the contract itself without reference to any parol testimony, we are in agreement with plaintiffs interpretation of the lease. In Article V(d), the lessor agrees to provide the outside parking areas described in Article I throughout the term of the lease. The description of the parking area in Article I makes reference to Exhibit “B” (Appendix I) which portrays the parking lot area as it presently exists. Defendant’s interpretation is inconsistent with his obligation to provide the parking area so described. Though it is true that in Article I the parties contemplate the building of additional rental space, the lessor does not specifically reserve the right to build in the existing parking area. Furthermore, Article IV’s reference to the lessee’s paying of rent for the “joint use of all parking and other areas as shown on the map or plan” obviously has reference to the sharing of the parking area by Barker’s and future tenants occupying the additional rental space to be constructed. This joint use is of “all parking” as shown on Exhibit “B”. Reading these sections in pari mate-ria, we conclude that the lease provisions do not permit the lessor to construct additional rental space on the existing parking lot area.

Although objected to by defendant, the trial judge permitted the introduction of parol evidence to clarify the ambiguity he found in the lease because of the conflict between Articles I and IV. Though we do not perceive any such ambiguity, we do recognize, as do counsel, the absence of the “plan of survey by Adloe Orr, Civil Engineer, dated August 24, 1966” mentioned in Article I. This survey upon which a red outline was supposedly drawn was not annexed to the lease entered into evidence and its existence is unknown. We can only speculate as to the significance of this missing survey and the role it would have played in resolving the conflict between the parties. Nevertheless, the missing survey does make the lease before us incomplete, and under these circumstances, parol evidence is admissible to make up for the deficiency in the lease. Martin v. Martin, 233 So.2d 718 (La.App. 4th Cir. 1970). The parol evidence introduced in the instant case supports plaintiff’s interpretation and reinforces our conclusion.

Bernard R. Kossar, who negotiated the lease on behalf of Barker’s, testified that the lessee’s objective was to open a discount department store on a dominant retail and commercial thoroughfare, Veterans Highway. As argued by plaintiff’s counsel, it is highly unlikely that Kossar would have agreed to a lease permitting the landlord to construct a building which would restrict visibility of the Barker’s store from the traveling public on the thoroughfare. Furthermore, Kossar testified that prior to the signing of the lease, Barker’s had rejected a preliminary plan dated July 6, 1965, in which the landlord proposed construction of a cafeteria building near the left front of the Barker’s store in the area presently used for parking. A subsequent plan dated January 18, 1966, reflecting further negotiations between the parties, situated the proposed cafeteria building at the corner near Veterans Highway on the undeveloped parcel of land adjacent to the existing Barker’s parking lot. Kossar testified that throughout the negotiations he had considered the tract of land upon which the Barker’s building is situated to be broken into three components: the building itself, the parking area and the vacant area reserved for future development.

In a letter from Kossar to Meltzer, dated April 1, 1966, which was also introduced into evidence, Barker’s took the position that the parking ratio as it existed at the commencement of the lease would be maintained as new buildings were constructed on the vacant portion of the tract. Kossar testified that Barker’s had modified its position through further negotiations to the extent that only the minimum parking requirements as set forth in the parish code were to be maintained as new buildings were constructed in the vacant portion of the tract. The witness further testified that the lease provisions reflect the latest negotiations and give Barker’s and the tenants of any new buildings to be constructed in the undeveloped portion the right to jointly use the existing parking lot and any other parking surface to be constructed. Considering this evidence, together with the lease itself, we conclude the trial judge properly enjoined defendant lessor from constructing any building or doing any work, except for necessary maintenance, in the area presently paved and striped for parking directly in front of the Barker’s store as shown on Exhibit “B” attached to the lease.

We do modify the judgment of the trial court in two respects, however. In the judgment, the trial judge, after enjoining construction of any building in the existing parking area, makes reference to the area as defined on Exhibit “B” and adds the following: “which said area presently consists of approximately 393 parking spaces”. Because no specific number of parking spaces is guaranteed to the lessee, under the terms of the lease, other than the minimum required under the building code of the Parish of Jefferson, we delete this above quoted reference to 393 parking spaces from the judgment.

The judgment further recites:

“It is further ORDERED, ADJUDGED AND DECREED that the peaceful use, enjoyment, and possession of all of such area for vehicular parking by plaintiff, Barker’s # 413 Corporation, or its successors, assigns, designees, customers, employees, or invitees shall not be disturbed by defendant, Lane N. Meltzer or his heirs, successors, assigns, agents, transferees, administrators, representatives or anyone acting on his or their behalf or in concert with him or them until such time as the said lease agreement between the parties, dated June 10, 1966, including any option periods, renewals, or extensions thereof, shall have been terminated and cancelled.”

Because we interpret the lease to provide for joint use by Barker’s and prospective tenants of all parking areas existing or to be constructed, that part of the judgment providing for undisturbed possession of “all of such area for vehicular parking by plaintiff” accords to plaintiff the right to prohibit the use of the parking area by prospective joint tenants in buildings to be constructed on the Meltzer-owned property contiguous to the Barker’s building and parking area. The lease clearly did not accord to plaintiff this undisturbed possession. Accordingly, we delete from the judgment the aforementioned paragraph which makes reference to plaintiff’s peaceful possession of the parking area. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

Appendix to follow.

APPENDIX 1

      . See Appendix I. This figure is the “Exhibit ‘B’ ” referred to in Article I of the lease, infra. We have superimposed the labels “Proposed 9,000 Square Foot Construction” and “Vacant Land Owned by Meltzer” upon the exhibit.

      . The lease provided for a term of 22 years.

      . During trial, counsel stipulated that the Jefferson Parish zoning code requires one parking space for each 250 square feet of gross floor area of the building constructed. At present, there are 384 parking slots available for Barker’s. The store building occupies, according to Meltzer, approximately 65,000 square feet. With this excessive number of parking spaces, the 9,000-square-foot building proposed for construction in the parking lot area would meet code requirements for both the existing Barker's building and the proposéd structure.


text:
    LACASSAGNE SHIP SUPPLIES, INC. v. ORLEANS PARISH SCHOOL BOARD.
    No. 8059.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Ignatz G. Kiefer, G. Bruce Kuehne, New Orleans, for plaintiff - appellee.
    Polack, Rosenberg, Rittenberg & Endom, Richard G. Verlander, Jr., Franklin V. Endom, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

In this appeal, the defendant School Board claims the trial judge erroneously awarded to plaintiff, a food supplier, damages for loss of profits because of the School Board’s failure to award to plaintiff a bid for food supplies.

The Food Service Department of the School Board put out for bid a contract for the purchase of meat to be supplied from January 2 through February 2, 1973. The instructions supplied by the department stated:

“Sealed quotations will be received in the office of the Director, Food Service Department until 1 o’clock p. m. December 11, 1972 . . ..”

The instructions further provided:

“No quotation will be accepted after this time under any condition whatsoever.”

Pursuant to these instructions, plaintiff, along with two other meat suppliers, submitted bids to the Food Service Department prior to the stated deadline. In the presence of plaintiff and the other suppliers, precisely at 1:00 p. m. on the designated date, the bids were opened and plaintiff’s bid was the lowest of the three submitted. After an elapsed time of approximately 20 or 30 minutes required for the opening of the bids, and while certain aspects of plaintiff’s bid were being calculated by the buyer supervising the placement of the bids, an additional, sealed (fourth) bid was discovered. This bid had been timely mailed and received by the School Board between 10:30 and 11:00 a. m. on the designated date but a School Board employee had inadvertently sent it to the Purchasing Department instead of the office of the Director, Food Service Department. For that reason, the bid had not been received by the Food Service Department until approximately 20 or 30 minutes subsequent to the 1:00 p. m. deadline established for submission of bids. This fourth bid was determined to be the lowest and this supplier was awarded the contract. Thereafter, this suit followed, resulting in a judgment in favor of plaintiff in the sum of $4,330.00, the amount of profits lost because of the School Board’s failure to award the contract to plaintiff.

In written reasons for judgment, the trial judge stated that the fourth bid should not have been considered because it was untimely, having been received by the Food Service Department after the 1:00 p. m. deadline unambiguously set forth in the instructions accompanying the request for written bids. Finding that the plaintiff’s bid was the lowest of the three timely bids received, the trial judge concluded that a contract existed between plaintiff and the School Board, and that the Board’s awarding of the contract to the fourth bidder constituted a breach, entitling plaintiff to recovery of damages. In this regard, the trial judge stated:

“The Court is of the opinion that there was a binding contract between Mr. La-cassagne and the Food Service Department. * * * ”
“Provided that the offerer or bidder was responsible and his bid met the required specifications (which all of the bids did), the contract must be awarded to the lowest of the bidders. The bidders were present and the Director of the governing authority was present. It was recognized by all of the participants that Mr. Lacas-sagne’s offer was the ‘winner’. He was congratulated by those present, and it is the opinion of the Court that at that time Mr. Lacassagne’s offer was accepted by the Food Service Department. There was a meeting of the minds and all parties were bound at that moment. The contract had its inception in the award as distinguished from the formal Notice of Acceptance which was to take place on a later date.”

On appeal, defendant contends that the trial court erred in determining that a contract came into existence at the time the sealed bids were opened at 1:00 p. m. and plaintiff was determined to be the lowest bidder. Assuming, for the purposes of argument, that the fourth bid was indeed untimely, the Board further argues that the trial judge erroneously permitted an award for loss of profits when plaintiff’s proper remedy under such circumstances would have been to enjoin the School Board from awarding the bid to the fourth bidder or to compel the Board to award the contract to plaintiff. We agree.

Without reaching the question whether the fourth bid was timely submitted, we find as a matter of law that no contract existed between plaintiff and defendant. Consequently, because the remedy sought by plaintiff is one for damages arising from a breach of contract, we deny relief.

The mere submission of the lowest bid for a public contract does not, in and of itself, create a contract between the bidder and the public body. LSA-R.S. 38:2211 and LSA-R.S. 38:2212 provide, in pertinent part:

§ 2211. Advertisement and letting to lowest responsible bidder
“A. (1) All public work exceeding the sum of five thousand dollars including both labor and materials to be done by the state of Louisiana, any public corporation or political subdivision of the state and all purchases of materials or supplies exceeding the sum of two thousand five hundred dollars to be paid out of public funds shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans and specifications as advertised, and no such public work shall be done and no such purchase shall be made except as provided in this Part. * * * ”
§ 2212. Designation of time and place for opening bids; right to reject bids
“The governing authority desiring to let a contract for the purchase of materials or supplies, or for the construction of public works, shall, in its resolution providing for the contract or purchase and for the advertisement for bids, designate the time and place that the bids will be opened and the contract let; and shall at the place and time specified open the bids and let the contract. The governing authority may reject any and all bids.”

Interpreting this statutory language in D. J. Talley & Son, Inc. v. Gity of New Orleans, 303 So.2d 195, 197 (La.App. 4th Cir. 1974), we stated:

“When a contract is awarded, it must be awarded to the lowest responsible bidder, but the court has no power to require the acceptance of a bid, and the court recognizes the right of the governing authority to reject all bids. * * * ”

In the event, as in our case, the public body chooses not to reject all bids, the statute imposes upon it the mandatory duty to award the contract to the lowest bidder. The opening and recordation of the lowest bid is a prerequisite to the subsequent award of the contract but does not create the contract itself.

In the instant case, bids were made on four chilled meat items. Mrs. Shelby Elliott, a buyer in the Food Service Department who conducted the bidding, testified after the bids were received she calculated the bids on the items to ascertain which bid was the lowest one. It was during the time that calculations were being made in her office that the fourth, low bid was discovered. The contract was subsequently awarded to this fourth, low bidder and not to plaintiff.

Plaintiff testified that notices of acceptance of bids are ordinarily sent out to the lowest bidder. Lacassagne acknowledged that no one from the School Board had advised him that he had been awarded the contract. Notice of acceptance was sent out by the Director of the Food Service Department to the lowest bidders, including the fourth bidder. No notice was sent out to plaintiff advising that his bid had been accepted. Evidence in the record indicating that plaintiff’s bid was the lowest at the 1:00 p. m. opening and that plaintiff was congratulated by his competitors does not constitute an award of the contract to plaintiff.

An action for breach of contract presupposes the existence of a contract. We conclude, under the circumstances, no contract has been awarded to plaintiff, and consequently he is not entitled to recovery based on breach of contract.

Assuming arguendo that plaintiff’s bid was the lowest timely one submitted, the proper vehicle for relief, under the circumstances of the instant case, would have been a suit to enjoin the Board from awarding the contract to the fourth bidder and to compel the Board to award it to plaintiff.

Accordingly, the judgment of the trial court in favor of plaintiff and against defendant is reversed. Judgment is now rendered dismissing plaintiff’s suit at his cost.

REVERSED AND RENDERED.

      . These four items were broken down into seven categories.


text:
    Joseph SIMMS v. James ESTRIDGE and ABC Insurance Company and New Orleans Public Service, Inc. Carl P. KELLY and Robert Sylvester v. NEW ORLEANS PUBLIC SERVICE, INC., Leonard E. Johnson, Jr. and James N. Estridge, a/k/a Jimmy N. Estridge. Leslie SIMMONS v. NEW ORLEANS PUBLIC SERVICE, INC., Leonard E. Johnson, Jr., and James N. Estridge.
    Nos. 8101-8103.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Bridgeman & Conway, Michael J. Moran, Metairie, for plaintiffs-appellees, Carl P. Kelly and Robert Sylvester.
    Gerald P. Aurillo, Metairie, for plaintiff-appellee, Leslie Simmons.
    Floyd F. Greene, New Orleans, for defendant-appellant, New Orleans Public Service Inc.
    Gauche, Wegener & Oster, Robert J. Oster, Edmund T. Wegener, Jr., Stephen F. Babin, New Orleans, for defendant-appel-lee, James N. Estridge.
    Dodd, Barker, Boudreaux, Lamy & Gardner, William F. Dodd, New Orleans, for plaintiff-appellee, Joseph Simms.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

Plaintiffs, passengers on a NOPSI Canal Street bus traveling in the neutral ground area in the direction of the river, sustained injuries in an accident between the bus and a left-turning automobile at the intersection of Canal and Villere Streets in the City of New Orleans. In these consolidated actions, judgment was rendered in solido against defendant NOPSI, its driver and James N. Estridge, the driver of the turning vehicle. Estridge’s third party demand against NOPSI was dismissed. Only NOP-SI appeals. Quantum is not at issue.

The solidary liability of the defendants is based-on the trial judge’s finding of concurrent negligence on the parts of both drivers. In written reasons for judgment, the trial judge stated: •

“From the evidence adduced during the trial of these cases, the Court is of the opinion that both the bus driver and Mr. Estridge were negligent, and it was the negligence of both which caused the accident. Both saw each other, and had either done what he should have done the accident would not have happened. The Court is of the opinion that the automobile was not stopped when struck, and that the bus was being driven too fast under the circumstances.”

On appeal, it is NOPSI’s contention that the bus driver in the instant case acted reasonably after being confronted with a sudden emergency arising from no fault or negligence on his part. Factually, NOPSI’s version of the accident is that the driver of the automobile, traveling in the same direction on Canal Street as the bus, but at a slightly greater speed, entered the left-turn lane and brought his vehicle to a stop (or slowed down to an almost complete stop). The automobile driver then looked in the direction of the river from where an oncoming NOPSI bus traveling in the direction of the lake was approaching, whereupon he immediately executed a left turn directly into the path of the bus, causing the bus to execute a left veering movement. According to NOPSI, the bus driver was unable to avoid striking the left front of the turning automobile.

The automobile driver and plaintiffs, passengers on the bus, claim, on appeal, that the bus driver, aware of the presence of the automobile to the driver’s right and also aware that he was preparing to make a left turn in front of the oncoming bus, made no attempt to reduce the already excessive speed of the bus. We agree.

By his own' testimony, the bus driver indicated that he had been aware of the automobile as it traveled in the same direction on his right for approximately one block before the intersection of Villere and Canal Streets. The bus driver stated that he had seen the motorist, slightly ahead of the bus, in the left-turn lane of Canal street and had anticipated that the motorist was going to make a left turn. He further testified that the driver of the automobile was looking in the other direction at another bus traveling in the lakebound bus lane. Though the bus driver stated that he had sounded his horn two times and had reduced the speed of the bus, one of the passengers indicated that the bus was traveling at a greater speed than buses normally travel on Canal Street in the area of the intersection where the accident occurred. The bus driver himself testified that his speedometer was not functioning and that he may have been exceeding the speed limit prior to applying his brakes.

According to the well-established jurisprudential rule, common carriers are charged with the duty of exercising the highest degree of care to their passengers and are liable for the the slightest negligence causing injury to those passengers. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); Vaughn v. New Orleans Public Service, Inc., 314 So.2d 545 (La.App. 4th Cir. 1975). Proof of injury to a fare-paying passenger imposes upon the carrier the burden of showing it was free from such negligence. Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1974); Dolan v. New Orleans Public Service, Inc., 317 So.2d 688 (La.App. 4th Cir. 1975), writ denied, 322 So.2d 774 (La.1975). However, when the carrier is confronted with a sudden emergency through no fault or negligence of its own, it will not be held liable for damages or injury sustained by its passengers. Carter v. New Orleans Public Service, Inc., supra; Walker v. New Orleans Public Service, Inc., 245 So.2d 763 (La.App. 4th Cir. 1971). Nevertheless, the doctrine of sudden emergency cannot be invoked by a party who creates the emergency situation through his own negligence. Dick v. Phillips, 253 La. 366, 218 So.2d 299 (1969); Powell v. State Farm Mutual Insurance Co., 304 So.2d 798 (La.App. 3d Cir. 1974), writ denied, 309 So.2d 339 (La.1975).

The trial court’s conclusion that the bus “was being driven too fast” is a credibility determination supported by the record. We conclude, because the bus driver’s own negligence created the emergency, NOPSI cannot invoke the sudden emergency doctrine.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . The neutral ground of Canal Street at the site of the accident is paved and divided into two lanes reserved for NOPSI bus traffic.


text:
    Sam J. VITRANO v. Gregory VITRANO.
    No. 8570.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Charles S. Lagarde, Jr., Luling, for plaintiff-appellee.
    Steven F. Griffith, Sr., Destrehan, for defendant-appellee, Gregory Vitrano.
    Gordon Hackman, Boutte, for defendant-appellant, Joan Melancon Vitrano.
    Before REDMANN, GULOTTA and MORIAL, JJ.
   GULOTTA, Judge.

The thrust of plaintiffs motion to dismiss the devolutive appeal is two-fold: 1) that the motion for appeal and the appeal bond were untimely filed; and, 2) that the apparent signature of the appellant, Joan Vitrano, on the appeal bond is not her signature and the appeal bond is therefore invalid. The motion to dismiss is denied.

On October 22, 1976, a default judgment was rendered against the defendant, Joan Vitrano. No evidence is contained in the record that personal service of process was effected on defendant. Further, the record does not contain a certificate from the clerk showing the date on which notice of the signing of the judgment was mailed to defendant Joan Vitrano. Indeed, the record does not disclose that any notice of judgment was sent to the defendant. The judgment has a notation on it which reads as follows:

“Copy sent to: Charles Lagarde, Jr and Steve Griffith. Dated October 22, 1976”

Neither Lagarde nor Griffith represents Joan Vitrano. Failure to send a notice of judgment as required in the instant case is in derogation of LSA-C.C.P. art. 1913. Under the circumstances, the time for the filing of a motion for a new trial and for the filing of a devolutive appeal has not commenced to run. Accordingly, a motion for appeal filed on January 17, 1977, and an appeal bond filed on January 20, 1977, have not been untimely filed.

The attack in this court on the validity of the bond is also without merit. LSA-C.C.P. art. 5125 provides that no appeal shall be dismissed on the ground that the bond furnished is insufficient or invalid unless the party who furnished the bond is afforded an opportunity to furnish a new or supplemental bond as provided for in LSA-C.C.P. art. 5124. The attack on the invalidity of the appeal bond must be made in the trial court. LSA-C.C.P. arts. 2088, 5123, and 5124. The motion to dismiss the appeal is denied.

MOTION DENIED.

      . The record fails to disclose any service of process on the defendant. The supplemental and amended petition making Joan Vitrano a party defendant contains a certificate of the attorney for plaintiff that the supplemental petition was mailed to Steven F. Griffith, Sr., attorney. However, Griffith represents a co-defendant, Gregory Vitrano, but does not represent defendant, Joan Vitrano, the appellant herein.

      . LSA-C.C.P. art. 1913 reads as follows:
      Art. 1913. Notice of judgment
      “Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service.
      “Except as otherwise provided by Article 3307, when a case has been taken under advisement by the court notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.
      “If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
      “The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.
      “Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.”

      . LSA-C.C.P. art. 1974 reads as follows:
      Art. 1974. Delay for applying for new trial
      “The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
      “When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

      . LSA-C.C.P. art. 2087 reads as follows:
      Art. 2087. Delay for taking devolutive appeal
      “Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an ap-pealable order or judgment may be taken, and the security therefor furnished, within sixty days after:
      (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      “When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any other appellee,' may take a devolutive appeal therefrom, and furnish the security therefor, within the delays allowed in the first Paragraph of this Article, or within ten days of the granting of the first devolutive appeal in the case, whichever is later.”


author: STOULIG, Judge.

text:
    Luis HERNANDEZ v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 8061.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      J. Hunter Bienvenu, and Jon A. Gegen-heimer, Gretna, for plaintiff-appellant.
    C. B. Ogden, II, New Orleans, for defendant-appellee.
    Before LEMMON, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Luis Hernandez, has appealed as inadequate a $6,100 jury award for an assault and battery inflicted on him by the driver of a New Orleans Public Service Inc. (NOPSI) bus. Defendant, NOPSI, has neither appealed nor answered the appeal; therefore, its liability is conceded before this court.

Briefly, the incident from which this litigation arose occurred on March 8, 1974 when plaintiff was moving toward the bus exit with the intent of debarking. Its driver, having previously ordered Hernandez to stop whistling, punched him in the chest as he neared the front door. Plaintiff, whose right leg is amputated above the knee, walks with crutches. When the blow fell, plaintiff caught himself and managed to regain his balance without hitting the floor.

Plaintiff contends the record warrants our increasing the award by $100,000, primarily for loss of past and future wages, but the quality of the evidence he presented does not justify an increase. It is only Gaspard and defendant’s failure to appeal that constrains us from reducing the judgment.

Plaintiff had been employed as a receiving clerk at a supermarket for approximately nine months prior to this incident and he continued his employment for more than five weeks after the accident.

The primary medical evidence plaintiff adduced was the testimony of the treating physician, Dr. Louis Ensenat. Under cross-examination of his qualifications as an expert it was developed that this doctor’s medical background included censure by a Texas medical society as well as a medical society in this State. A prior incident was cited to illustrate the unreliable nature of his testimony. He swore under oath he treated one Earl Ruiz from October 3, 1969 through February 9, 1970. It later developed Ruiz had been killed in a shooting accident on November 14, 1969. When called to his attention Dr. Ensenat attributed this disparity to a clerical error. Unquestionably the foregoing professional history of this witness casts serious doubt on his credibility.

In any event, Dr. Ensenat diagnosed plaintiff suffered these permanent injuries as a result of the incident: (1) strained right armpit; (2) strained right shoulder; (3) low back injury; (4) right arm injury; and (5) hernia. Dr. Ensenat began treating plaintiff March 17, 1974 and was still doing so at the time this trial was held in November 1975. During this period plaintiff was administered 190 diathermy treatments and incurred medical expenses of $2,017 with Dr. Ensenat. Two orthopedists examined plaintiff approximately one year after the accident and found his complaints totally unrelated to the assault and the heat treatments worthless.

Without credible medical evidence to support his complaints, plaintiff fared well with the jury. Obviously the jury did not accept his assertion he could not work because of the accident and obviously the impression Dr. Ensenat made was unfavorable. Undoubtedly plaintiff was entitled to damages for the battery he suffered. The record fails to state what components figured in the verdict and, certainly, there is no basis for our increasing it.

Plaintiff’s complaint of an improper jury charge relates to liability, which is conceded on appeal, and, therefore, its consideration would be purely academic.

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

AFFIRMED.

LEMMON, J., dissents with written reasons.

LEMMON, Judge, dissents and assigns reasons.

The jury verdict should be set aside because of prejudicial questioning during cross-examination of the treating physician on his expert qualifications. Over timely objection counsel for defendant was allowed to read to the jury a statement by another judge in another case that the doctor was not worthy of belief.

Whether or not a witness is worthy of belief is a question for the jury to decide, and another person’s conclusion as to that question is irrelevant to the jury’s decision. Furthermore, when that other person’s opinion is clothed with the black robe of judicial office, the opinion not only is irrelevant, but also is prejudicial.

Once the treating physician’s testimony was discredited by prejudicial evidence, plaintiff had no chance for a fair jury ver-diet on his claim which depended on that evidence. Therefore, the reviewing court should set aside the verdict and undertake an independent examination of the record. If the record establishes that the judge or jury could not reasonably have reached a verdict of more than $6,100.00, then the judgment should be affirmed. Otherwise, plaintiff’s timely motion for a mistrial should be granted, and the case should be remanded for retrial in order to afford plaintiff an opportunity for a trial by an unprejudiced jury.

      . The accident occurred on March 8, 1974. The employee’s work record reflects: March 10 pay period — 52.9 hours; March 17 — 23.7 hours; March 24 — 45.8 hours; March 31 — 7.5 hours; April 7 — 46 hours; and April 14 — 47.7 hours.

      . Plaintiff was examined by Dr. Claude Williams at the request of the defendant and by Dr. William M. Pusateri at the request of the Social Security Administration for a disability determination.

      . This view to some extent runs contrary to the holding of Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975), but a prejudicial ruling by a trial judge should not deprive a party of the right to a jury trial. On appellate review of a case like this one, it is not sufficient to examine the record and conclude that the evidence supports a verdict of $6,100.00, if a jury which was not prejudiced as to the treating physician’s testimony could have concluded from the same evidence, without abusing its discretion, that a much greater award should be granted.


text:
    Elliot DAVIS, Jr. v. Michael LOGARBO, Velma Gant and Volkswagen Insurance Company.
    No. 8071.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Birdsall, Alvarez & Rodriguez, Michael I. Rodriguez, New Orleans, for plaintiff-appellant.
    Wayne W. Foley, New Orleans, for Michael Logarbo, defendant-appellee.
    Alexander C. Cooke, Jr., New Orleans, for Volkswagen Ins. Co., defendant-appel-lee.
    Before LEMMON, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Elliot Davis, Jr., has appealed a judgment dismissing his personal injury suit against defendants Velma Gant, driver of an automobile that struck his vehicle in the rear; Michael Logarbo, owner of the car that rear-ended his automobile; and Volkswagen Insurance Company, plaintiff’s uninsured motorist carrier. Third party claims were filed by various defendants; however, the judgment dismissing them all is final because no appeals were taken from their dismissal.

The record reflects this accident occurred on February 25, 1974 at the intersection of King and Railroad Avenues in Lutcher, Louisiana. Plaintiff, while stopped in his Volkswagen on King Avenue in response to a stop sign, was hit in the rear by an Oldsmobile driven by Velma Gant. The impact propelled the small car across the intersection and partially up the approach ramp of a railroad crossing just beyond Railroad Avenue. Mrs. Gant saw the stopped car as she approached the intersection, but when she attempted to apply her brakes “three or four houses” from the corner, the brake pedal went to the floor. Moving at a rate of 15 miles per hour and being upset by the brake failure, Mrs. Gant testified she forgot about the emergency brake and did not attempt to use it. She had no advance warning of any problem. In fact she had been driving this car for some time prior to the accident that same day. Mrs. Michael Logarbo, manager of the short order restaurant where Velma Gant was employed as a cook, told the defendant driver to take the car and bring back a certain brand of pizza for the Logar-bo children’s supper. Because she could not find the brand specified at the first store, she had gone to three or four other stores before the accident occurred. Obviously she had had to apply the brakes on numerous occasions in covering this territory. Neither Velma Gant nor Michael Logarbo carries insurance.

There is no question that plaintiff was free from any negligent act that caused or contributed to this accident. Therefore, we reverse that aspect of the judgment from which the appeal was taken.

Though afforded a reasonable opportunity to effectively do so, defendant Velma Gant was negligent in failing to attempt to stop her moving vehicle by using her emergency brake once it was apparent the other braking system had failed. Littleton v. Arrow Food Distributor, Inc., 224 So.2d 131 (La.App. 3rd Cir. 1969).

Defendant owner is liable because his wife instructed Velma Gant to perform an errand for the Logarbo community— shopping for the children — and furnished her a defective automobile to accomplish this purpose.

The defense of mechanical failure is recognized in Louisiana, but he who wishes to avail himself of it carries the burden of proving by expert evidence that the vehicle was reasonably maintained prior to the accident and that the defect could not have been discovered beforehand by reasonable inspection. See Metzger v. Scott, 244 So.2d 671 (La.App. 4th Cir. 1971); Delahoussaye v. State Farm Mutual Auto. Ins. Co., 202 So.2d 287 (La.App. 4th Cir. 1967); Breaux v. Valin, 138 So.2d 405 (La.App. 3rd Cir. 1962); Trascher v. Eagle Indemnity Co. of New York, 48 So.2d 695 (La.App. Orl. 1950). The only evidence defendants offered in this case other than the testimony of the driver was the statement of the investigating police officer that the brake pedal went to the floor when he tested it during the accident investigation. This is not sufficient to sustain the defense of latent defect.

The liability of the insurer under its uninsured motorist coverage issued to plaintiff is established by the uncontradicted evidence that the negligent defendants are uninsured.

We next consider quantum. As a result of this collision that caused more than $900 in damage to plaintiff’s vehicle, Davis suffered a mild to moderate cervical strain for which he required treatment for approximately two and one-half months after the accident. Dr. Carl Poche testified he saw plaintiff on 16 separate occasions which included several physical therapy sessions. His medical history reflects plaintiff lost three days’ work and on May 1,1974 he was asymptomatic. We award $2,500 general damages, $114 medical expenses, $120 for stipulated lost wages, and $100 expert fees.

For the reasons assigned the judgment appealed from is reversed only insofar as it dismisses the main demand and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Elliot Davis, Jr., and against defendants Velma Gant, Michael Logarbo and Volkswagen Insurance Company in solido in the sum of $2,734 with legal interest from the date of judicial demand, plus expert fees of $100 and all costs.

REVERSED IN PART AND RENDERED.

      . “ * * * [T]he failure of a motorist to use his emergency brake constitutes negligence and a cause of the accident, if there is a reasonable opportunity to do so effectively after the ordinary foot brakes fail. * * *” 224 So.2d at 132.

      . “Applicable here is the rule that in order for latent defects to constitute a valid defense, the proof must be so strong that it excludes any other reasonable hypothesis with reference to the cause of the accident except that it resulted solely from the alleged defects, and it must establish that the driver was not aware of the defects and that the defects could not reasonably have been discovered and remedied by a proper inspection. * * *” 224 So.2d at 132.


text:
    James HALL v. HARTFORD INSURANCE COMPANY et al.
    No. 8113.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.
    Gordon Hackman, Boutte, for plaintiff-appellant.
    Walter T. Gamard, II, New Orleans, for Jeffrey Johnson, Jr., and Hartford Ins. Co., defendants-appellees.
    Before LEMMON, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiff, James Hall, has appealed a judgment dismissing his tort claim against Jeffrey Johnson, Jr., and his liability insurer, Hartford Insurance Company, on an exception of prescription. Plaintiff, alleging he was injured while a guest passenger when defendant’s automobile was involved in an accident on January 23, 1971, filed this suit on September 2, 1975.

In the interim, Hall, with appellee Johnson as a co-plaintiff, filed suit on April 6, 1971 alleging the accident “ * * * was caused solely by the negligence of Royce Brown * * * ”, driver of the other vehicle. (Emphasis added.) In the alternative Hall alleged the collision was caused by the “ * * * joint and solidary negligence * * * ” of Brown and his co-plaintiff Johnson. On September 3, 1974 after trial on the merits, the demands of both plaintiffs were dismissed on a finding Johnson was solely negligent. We note Johnson was not named as a defendant nor served with a citation as such, and no judicial demand for recovery was asserted against him.

C.C. art. 3536 sets a one-year time limit for filing actions for damages resulting from offenses. In this case plaintiff argues the timely filing of the first suit interrupted prescription as to the defendants named in this lawsuit. In support of this proposition he cites R.S. 9:5801:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.”

For this interruption to occur, the defendants, joined after the prescriptive period has run, must be solidarily liable with the defendant who was timely cited and served within the one-year period. In Pearson v. Hartford Accident & Indemnity Company, 281 So.2d 724, 725-26 (La.1973), the Supreme Court observed:

“LSA-R.S. 9:5801 provides that all prescriptions against defendants sued are interrupted by the timely filing of suit in a court of competent jurisdiction. The suit against Champine interrupted prescription as to the claims against him.
“By effect of law, those persons are solidary obligors who are bound to perform the same obligation, where payment by any one exonerates the rest and where the debtor may compel full performance from any one of such obligors. Civil Code Articles 2082, 2091. This is so even though the obligations of the obligors arise from separate acts or by different reasons of law. Civil Code Articles 2091, 2093. Thus, joint tortfeasors are solidary obligors. Civil Code Article 2324. So are an insured and his liability insurer, Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir. 1960).
“In the case at hand, Champine, if liable, is solidarily liable with his insurer, Travelers, for the tort obligation for which recovery is sought. This being so, a timely suit filed against either of these solidary obligors interrupted prescription as to both of them. Civil Code Article 2097. The timely suit against Champine interrupted prescription against his liability insurer, Travelers. * * * ”

In most cases the question of prescription is resolved before trial on the merits, thus the solidary liability issue must be decided on the face of the pleadings. The court must determine whether there is soli-dary liability as a matter of law based on the facts alleged in the petition. However, in this matter, it has been judicially determined Brown was not solidarily liable with Johnson; therefore, by the time appellees were properly cited as defendants and properly served with a copy of the petition, plaintiff had lost his basis for claiming prescription had been interrupted.

The judgment in the first suit found Brown free from negligence and it became final when the time for appeal lapsed without further action.

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

AFFIRMED.