text:
    Buford and Mateline DAUZAT, Plaintiffs-Appellants, v. KROGER COMPANY and Insurance Company of North America, Defendants-Appellees-Appellants.
    No. 5250.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 6, 1976.

      Gravel, Roy & Burnes, by T. Gerald Henderson, Alexandria, for plaintiffs-appellants.
    Bolen, Halcomb & Bolton, by Gregory S. Erwin, Alexandria, for defendants-appel-lees-appellants.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiffs Buford and Mateline Dauzat appeal the judgment dismissing their claims against defendant Kroger Company and its insurer defendant North American Insurance Company of North America for damages resulting when cans in a display fell on Mrs. Dauzat. We affirm.

At about 2 p. m. on Tuesday August 13, 1974, a day of small traffic count in Kroger’s, two twenty-four can cartons of 12 oz. Canada Dry soft drinks fell from a display in the front portion of Kroger’s store. The cans were not bound together to make six or twelve packs. The cans were in trays or cut down cartons, and the cans separated as they fell rather than falling as a bound carton.

There is evidence to support the trial court’s finding that the Canada Dry soft drink display was made up of three rows of cartons or trays, each row being one tray deep and some twenty to thirty feet in width. These three rows of cardboard trays were along the outside wall of the store near to but separated from the checkout registers by a 11 foot aisle. The row nearest the wall was undisturbed and perfectly stacked to a height of six or seven feet both before and after the accident. The middle row was undisturbed and perfectly stacked to a height of six feet before and after the accident. And the front row, the one nearest the checkout registers, was neatly and properly stacked to a height of five feet before the accident. After the accident, only the 48 cans from the two trays which had fallen were out of order. The remainder of the display was in perfect order.

The trial court specifically rejected the testimony of Mrs. Dauzat and her two daughters that the cartons were stacked to the ceiling some fifteen feet high, and the testimony of Mrs. Dauzat’s daughters that the display was crooked and in disarray prior to the accident. We fail to find manifest error in these determinations.

Mrs. Dauzat explained she had completed her shopping and had checked out at the register. Because it was raining, she and her children stood between the register and the Canada Dry display to wait for the rain to slacken or stop. By deposition she testified all four of her children were near her, but this was changed at trial to state her two daughters were near, but her two boys were outside the store at the time of the accident. According to Mrs. Dauzat she was standing some five or six feet from the display when without warning she was struck on the right side of the top of her head, on her right shoulder and right arm by several cans some of which ended up in her shopping cart. When she gave the history of the accident to her physicians, she stated that five or six cartons of drinks hit her.

Immediately after the accident, the bag boy responsible for maintaining the Canada Dry display asked Mrs. Dauzat if she was hurt or needed assistance. At about that same time, the assistant manager made similar inquiries and asked if he could send her to a doctor. Mrs. Dauzat stated to both she was all right. Shortly thereafter she rolled her cart to her car. Her children loaded the groceries in her car and Mrs. Dauzat drove home. Later that day she became nauseated and because of pain she went to the hospital emergency room and was treated. She attempted to see her physician but he was not available. She was treated by her physician on the next day and incurred substantial medical expenses.

The accident occurred while Mrs. Dau-zat was on vacation. When her vacation ended the following Monday, she reported to her employment although her physician had suggested she rest rather than return to work. She did not miss work as a result of her injuries. Mrs. Dauzat testified her family’s financial condition would not permit her to follow her physician’s advice.

Although Mrs. Dauzat and her daughters vigorously denied they might have touched the display, the trial judge suggested that as one of several possibilities. He properly concluded Mrs. Dauzat was closer to the display than the five to six feet distance she consistently stated. This was established because the drinks in the first row were the only ones disturbed and they had not been stacked higher than five feet. Although the record does not give Mrs. Dauzat’s height, the trial court noted she was short.

There is substantial evidence to support the trial court’s conclusion that Kroger had more than adequate rules and regulations regarding inspection and safety procedures and these rules and regulations were carried out. The display was restacked every evening. The co-manager inspected all displays three to four times each morning and three to four times each afternoon. The bag boy working near the display frequently checked the display and helped customers who had difficulty getting cans from the display. Additionally, the floor was swept periodically during the day, and displays were rearranged during that operation when disarray was discovered. There is no manifest error in the trial court’s finding Kroger’s inspection procedures were sufficient and were carried out.

After the trial judge decided this case, Kavlich v. Kramer, 315 So.2d 282 (La.1975) was handed down. This decision specifically finds an inference of negligence on the part of the storekeeper by testimony establishing patron’s freedom from negligence and causation. Therefore the trial court improperly rejected the res ipsa loquitur rule. However, this does not affect the trial court’s decision because the inference may be and was here rebutted by evidence establishing the storekeeper’s reasonable inspection procedures. Kavlich v. Kramer, 303 So.2d 874 (La.App. 1 Cir. 1974). Mancuso was reversed on other grounds. Mancuso held evidence of reasonable inspection shifted the burden to the patron to show actual negligence. In reversing, the supreme court held the patron carried that burden. The evidence in Mancuso established the storekeeper’s employee had looked at the doorway moments before the accident. The hazard there was so obvious a reasonably observant person must have seen it. Since the employee looked and did not see, the patron established the storekeeper’s negligence.

Here the evidence follows a similar pattern except that plaintiff failed to prove actual negligence. Plaintiff established her freedom from negligence and causation, but the trial court held storekeeper established he carried out more than adequate inspection procedures.

The testimony describing the display moments before the accident was by plaintiff’s daughter who testified she noticed disorder in the stack. This testimony was rejected. But even the daughter testified the danger was not apparent. When asked why she did not warn her mother, she testified she didn’t think it would fall.

We distinguish Kavlich. Here there is no evidence indicating an employee should have seen the hazard or that the hazard could have been visually detected. Therefore plaintiffs must show negligence. There is no manifest error in the trial court’s finding plaintiffs failed to carry this burden.

Although this is a close case, we fail to find manifest error in the trial court decision. The trial court judgment is affirmed, except insofar as it taxed trial court costs to defendants. Defendants timely answered the appeal seeking this amendment to the trial court judgment, and they are entitled to that relief. See MFA Mutual Insurance Company v. Fidelity & Casualty Company of New York, 318 So.2d 666 (La.App. 3 Cir. 1975). Court costs at trial and on appeal are assessed to plaintiffs.

Amended and affirmed.

WATSON, J., concurs in the result.


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    NORTH CENTRAL UTILITIES, INC., Plaintiff-Appellant, v. Norris SARVER and Richard Sarver et al., Defendants-Appellees.
    No. 5228.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.

      Joseph D. Guerriero, Monroe, for plaintiff-appellant.
    Stafford, Pitts & Stafford, Grove Stafford, Jr., Alexandria, Baggett, Hawsey, McClain & Morgan, by R. Scott McClain, Lake Charles, for defendants-appel-lees.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiff North Central Utilities, Inc. appeals the judgment dismissing its suit against defendant First Federal Savings & Loan on an exception of no cause of action. The trial court held North Central failed to allege First Federal was bound in solido for its co-defendants’ (the Sarvers’) obligations. The suit against the Sarvers is pending. We affirm.

North Central and Norris and Richard Sarver entered into a written contract whereby North Central was to construct a sewerage system. North Central alleges the Sarvers did not pay for the system and are indebted for the balance of the contract price together with other described damages. The claim against First Federal is based on alleged oral promises to pay Sarvers’ debt in order to get construction started and a letter by First Federal’s loan officer confirming this. The letter is in the record by joint stipulation of the parties and states:

This will confirm that this Association has committed to finance this development and funds are available.

North Central argues on appeal the trial court erred in considering the letter in deciding the exception. We do not agree.

Although LSA-C.C.P. 931, prohibits evidence to support or controvert the objection that a petition fails to state a cause of action, North Central’s petition was amended by the stipulated filing of the letter in the pleadings. The filing of the letter constitutes an amendment to the petition, and the trial court properly considered this amendment in deciding the exception of no cause of action. Rheuark v. Terminal Mud and Chemical Company, 213 La. 732, 35 So.2d 592 (1948). See also General Accident, Fire & Life Assurance Corp. Ltd. v. J. B. Glen, 261 So.2d 78 (La. App. 3 Cir. 1972), where a document was considered with consent of both parties.

We distinguish American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510, 512 (1970). The court there held C. C.P. 931 overruled the pre-code jurisprudential exception to the general rule prohibiting evidence on the trial of the exception of no cause of action. Under the exception to the rule evidence had been permitted on trial of an exception of no cause of action where the sole issue related to the existence or non-existence of certain words in a written document.

Here the document, the written letter, is not evidence admitted at the trial of the exception but was incorporated into the pleadings by its stipulated introduction into the record prior to arguing the exception. The pleadings were amended by the stipulation. LSA-C.C.P. 1154.

North Central alleged that First Federal’s officers orally promised to pay sums due North Central under North Central’s contract with the Sarvers in order to get construction started. They alleged this was confirmed in the quoted letter.

We reject North Central’s claim that First Federal’s letter is a guarantee to pay the indebtedness which may or may not be owed by the Sarvers.

North Central also claims its allegation that First Federal is bound in solido entitles it to a dismissal of the exception because oral testimony is permissible to establish a primary obligation. The intent to be bound in solido under LSA-C.C. 2093 must be express. Such an express stipulation in an oral contract would be a matter for proof at trial. However, to avoid the strictures of LSA-C.C. 2278(3) against parol evidence, the petition must allege a primary liability on the part of First Federal.

North Central’s pleadings make First Federal’s liability contingent on the Sarvers becoming obligated under the contract. This is a derivative or secondary liability. We hold the allegation of solida-ry liability, which is here based upon contingent liability, to be a secondary liability and reject the contention it is primary. North Central’s pleadings allege only a surety relationship.

We find North Central’s petition to allege only an oral promise of surety. The combined effect of the two Civil Code requirements that the promise to pay the debt of a third party be express, LSA-C.C. 3039, and that no parol evidence be allowed, LSA-C.C. 2278(3), have been interpreted to require that promise to be in writing. Guillot v. Guillot, 141 La. 81, 74 So. 702 (1917). It must be over the signature of the party to be charged. 74 So. at 703. Since North Central did not allege a written confirmation of the alleged oral promise to pay, the exception of no cause of action was properly sustained.

The trial court judgment is affirmed at appellant’s costs.

Affirmed.


author: CUTRER, Judge.

text:
    Louis RICHARD et al., Plaintiffs-Appellants, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5222.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 6, 1976.
    Milton L. LeBlanc, Jr., New Iberia, for plaintiffs-appellants.
    Caffery, Duhe & Davis by J. Louis Gib-bens, New Iberia, for defendants-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Louis Richard and his wife, Lillie L. Richard, brought suit against Travelers Insurance Company and its insureds, J. W. Bostick and his wife, Sue Bostick, for damages incurred as a result of the alleged negligence of the Bosticks’ minor son. A motion for summary judgment was filed by the defendants in which they asserted that Mr. Richard had split his cause of action for damages allegedly caused to the community by suing for and recovering a portion of those damages in an earlier suit. The motion was granted and Mr. Richard’s suit was dismissed by the trial court. A devolutive appeal was perfected by Mr. Richard. We affirm the judgment of the trial judge dismissing Mr. Richard’s suit. The claim of the co-plaintiff, Mrs. Richard, is pending in the trial court.

The petition filed by the plaintiffs alleges the following facts: On June 19, 1973, Lillie Richard was driving the family automobile in a southerly direction on North Lewis Street in New Iberia when she was required to stop her automobile to permit vehicles leaving the parking lot adjacent to Eckard’s Drug Store to drive onto North Lewis Street. While stopped on North Lewis Street her automobile was struck from the rear by a 1973 Mercury automobile owned by the Bosticks and driven by their fifteen year old son, William Bostick. The collision caused damage to the rear of the Richard vehicle and personal injuries to Mrs. Richard. Mr. Richard sued for the medical expenses paid by the community in connection with the injuries suffered by Mrs. Richard in the amount of $2,700.00, and Mrs. Richard sought to recover damages for her personal injuries and suffering in the amount of $50,000.00, together with interest and court costs.

Prior to the filing of the present suit Mr. Richard had filed suit on behalf of the community in New Iberia City Court seeking to recover $830.25 as property damages to the family automobile and for his wife’s travel to and from the doctor’s office. The City Court judgment ordered Travelers Insurance Company to pay Mr. Richard $551.62 in damages. That judgment has become final.

Following the filing of the present suit the defendants filed a motion for summary judgment, seeking to dismiss Mr. Richard’s claim because he had split his cause of action for damages caused to the community by suing and recovering damages for the property loss and related travel expenses in City Court and then attempting to sue in District Court for the medical expenses and travel expenses incurred by the community as a result of the accident. An exception of res judicata was also filed by the defendants. The motion for summary judgment was granted by the trial judge. No ruling was made on the exception. Since we affirm the granting of the motion for summary judgment we will not discuss the exception.

The issue presented to this court is whether Mr. Richard has split his cause of action under LSA-C.C.P. article 425, so that he is now barred from litigating the remainder of the cause of action which was created in favor of the community by the allegedly negligent acts of the Bosticks’ minor son.

LSA-C.C.P. article 425 provides as follows:

“An obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof. If he brings an action to enforce only a portion of' the obligation, and does not amend his pleading to demand the enforcement of the full obligation, he shall lose his right to enforce the remaining portion.”

The obligations created by the allegedly tortious acts of the defendants’ minor son are those due Mrs. Richard for the personal injuries and those due the community existing between the Richards for the expenses incurred as a result of the accident. Ift the present case there were two portions of the obligation due the community, the medical and travel expenses and the property damages. Under LSA-C.C.P. article 686, only the husband may sue on the claims belonging to the community.

When Mr. Richard sued and recovered in New Iberia City Court for one portion of the obligation, i. e., the property damages and travel expenses, he waived his right to sue for the other portion of the same obligation in the District Court. Splitting a cause of action is barred by article 425.

In the case of Fortenberry v. Clay, 68 So.2d 133 (La.App. 1st Cir. 1953) the court held as follows:

“In American Jurisprudence, Vol. 1, p. 494, Section 4, we find the following:
‘It sometimes happens that a single wrongful or negligent act causes damage in respect of both the person and property of the same individual as, for instance, where the owner of a vehicle is injured in a collision which also damages the vehicle. In such a case, the question arises as to whether there are two causes of action or only one, and the authorities are in conflict concerning it. The majority rule is that only one cause of action arises, the reason of the rule being that as the defendant’s wrongful act is single, the cause of action must be single, and that the different injuries occasioned by it are merely items of damages proceeding from the same wrong.’
“Louisiana jurisprudence is in accord with the majority rule.
“We agree with the decision quoted above. Should the laws of our state hold otherwise, there would be an undetermined . number of suits between the same parties arising out of one wrongful action.”

See also McConnell v. Travelers Indemnity Company, 346 F.2d 219 (5th Cir. 1965).

For the reasons assigned the judgment of the trial court sustaining the motion for summary judgment dismissing the suit of Louis Richard is affirmed at plaintiff-appellant’s costs.

Affirmed.


text:
    Charles Renard McCASKILL, Plaintiff-Appellee, v. DEVINEY CONSTRUCTION COMPANY, Defendant-Appellant.
    No. 5217.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 3, 1976.

      Stafford, Pitts & Stafford, Hodge O’Neal, III, Alexandria, for defendant-appellant.
    Reeves, Lossin & Owens by Jack F. Owens, Jr., Harrisonburg, for plaintiff-appel-lee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

This is a suit by Charles McCaskill against Deviney Construction Company, for wages, penalties and attorney fees under the provisions of LSA-R.S. 23:631 and 632. Plaintiff alleges that wages are due and unpaid for work he performed for defendant during the period of August 3, 1974 through August 9, 1974. Defendant denied that plaintiff performed work during this period.

The trial court rendered judgment in favor of plaintiff for the sum of $80.00 as wages due, $90.00 as penalties, plus $240.-00 attorney fees. Defendant appealed the .awards of penalties and attorney fees. We affirm.

The first issue for determination is whether the trial court erred in allowing penalties and attorney fees under the facts and according to the provisions of LSA-R.S. 23:631 and 632.

LSA-R.S. 23:631 and 632 provide as follows:

“It shall be the duty of every person, employing laborers . . . when discharging any laborer . . . within twenty-four hours after such discharge . to pay the laborer or employee the amount due under the terms of employment . . . upon demand . . . at the place where the employee or laborer is usually paid.
“Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety day’s wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney’s fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation.”
This statute was under consideration by the court in the case of Becker v. Choate, 204 So.2d 680 (La.App. 3rd Cir. 1967), wherein the following observations were made:
“Although an employer’s delay in paying wages earned by employees within twenty-four hours after their discharge or resignation renders him liable for penalties under R.S. 23:632, this statute must be strictly construed, and it is well settled that the courts will refuse to allow penalties if the employer had some equitable justification for not paying the wages timely. Mitchell v. First Nat. Life Ins. Co. of La., 236 La. 696, 109 So.2d 61 (1959); Clevy v. O’Meara, 236 La. 640, 108 So.2d 538 (1959). See also, Strickland v. American Pitch Pine Export Co., 224 La. 949, 71 So.2d 338; Deardorf v. Hunter, 160 La. 213, 106 So. 831 (1926); Tuberville v. Foster, La. App. 1 Cir. (1959), 113 So.2d 805.”
)fC ‡ ‡ jfc í}C
“While cases on this point generally state that R.S. 23:632 is subject to ‘equitable defenses’, we are of the opinion that the word ‘defenses’ does not mean a ‘defense’ in the strict sense of the word. Rather, the tenor of these cases seems to indicate that the court will refuse to assess penalties and attorneys’ fees where the facts of the particular case strongly indicate that greater justice will be attained by such refusal. These facts then become equitable considerations, or ‘defenses’ in a loose sense of the word, which will move the court to deny the penalties.”

The evidence preponderates that the plaintiff, seventeen years of age, was employed by defendant for a two week period ending on Friday, August 9, 1974. His employment was terminated by his employer on the latter date at which time he was paid for his first week’s work. He earned $2.00 per hour and worked forty hours each week. The employees were paid each Friday, and plaintiff reported to his foreman, Curtis Butler, on the Friday following termination, requesting his pay for the second week. He was told by Butler to return that afternoon as the check had not been received from the defendant that morning. Plaintiff returned that afternoon, to no avail. He was then told that Mr. Duckworth (Bill Duckworth, a supervisor) may have the check. He went to Duckworth’s home and inquired about the pay. Duckworth told defendant to return the following Monday. He did as instructed and Duckworth informed him he didn’t have the check. He made demand on Bill Duckworth on at least two other occasions, and also made demand on D. C. Duck-worth, the regional supervisor. He was told that the company would be contacted about the situation.

Glen Graves testified that he was office manager for defendant in Jackson, Mississippi, defendant’s home office. He stated that the time sheets for Louisiana employees were sent to the Jackson office each week and checks were mailed to the supervisor for distribution. If any employee failed to receive a check the supervisor could call the Jackson office and the error would be rectified by issuing a check and sending it, by bus, to Louisiana. The time sheets for the week in question failed to show that plaintiff worked. Graves stated that he received no word from any of the defendant’s supervisory personnel pertaining to the week’s wages demanded by the plaintiff. The supervisory personnel upon whom demand was made took no steps to ascertain the correctness of plaintiff’s demands until a demand letter, dated October 24, 1974, was received by defendant.

The trial judge stated, in substance, that defendant’s failure to take any steps to ascertain the validity of plaintiff’s repeated demands and to pay wages that were due, subjected the defendant to penalties and attorney fees.

Our review of this record indicates no manifest error in the trial court’s holding that plaintiff worked for two weeks and was entitled to two weeks pay.

The trial judge correctly applied LSA-R.S. 23:631 and 632 along with the jurisprudence interpreting same. The procedure or policies of an employer for the payment of wages to employees must be such that the requisites of the statute can be met. When the failure to pay wages due according to the statute is attributable to neglect or improper pay procedure of an employer, the equitable defense enunciated by the Becker case is not available to an employer. Young v. White Stores, Inc., 269 So.2d 266 (La.App. 3rd Cir. 1972). In the case at hand we have not only the lack of proper procedure to meet the requisites of the statute but also the additional factor of neglect by the supervisory personnel. We find that penalties and attorney fees are due.

The plaintiff-appellee filed an answer to the appeal requesting an increase in penalties and attorney fees. A motion to dismiss was filed on the ground that the answer was filed late.

The record reflects that the Return date was July 1, 1975. This was extended to August 1, 1975. The transcript was lodged on the latter date. Under the provisions of LSA-C.C.P. article 2133, the appellee must file his answer not later than fifteen days after the lodging of the transcript with this court. The answer, having been filed August 19, 1975, was not timely filed. The motion to dismiss the answer shall be granted and the answer dismissed. Having dismissed the answer, the request for additional penalties and attorney fees cannot be considered.

For the reasons above assigned, we affirm the judgment of the trial court; defendant-appellant to pay all costs.

Affirmed.


author: HUMPHRIES, Judge.

text:
    John L. ARDOIN, Plaintiff-Appellant, v. Leman SWINT et al., Defendants-Appellees.
    No. 5212.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 22, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 3, 1976.
    Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, for plaintiff-appellant.
    Allen, Gooch & Bourqeois by Joel E. Gooch, Lafayette, for defendants-appellees.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HUMPHRIES, Judge.

This is an appeal from an adverse judgment in an “executive officer” suit. We affirm.

The plaintiff brought an action against four employees of Tennessee Gas Transmission Corporation, the same employer for whom the plaintiff worked. He contends that he was injured while attempting to close a heavy metal door on a natural gas line accessory apparatus. The plaintiff claimed that the employer failed to furnish a safe place to work, provide adequate tools and instructions and the other usual contentions made in an action of this nature.

The plaintiff’s injury was brought about by his own actions and not as the result of any defective tools or equipment, lack of a safe place to work, lack of instructions or failure to furnish adequate assistance.

The plaintiff suffered a back injury while attempting to close the metal door that is in the apparatus in an operation that is commonly called a “pig run”. The plaintiff’s injury was incurred in attempting to close a “pig trap” door. A pig run is a procedure whereby an object is run through the natural gas line from one station tp another in order to clean out debris and moisture in the natural gas line. Special apparatuses are constructed in a pipeline that provides for this operation. This apparatus that is run through the lines is called a “pig”. The door closing the ends of the pipeline is called a pig trap door. It is a thick round metal door that screws onto the pipeline on threads in the door and on the outside of the pipe. It is about a foot and a half in diameter. On the outside face of the door are raised metal strips commonly called “ribs” or “ears” that run from the center to the edge. There is a special tool called a “fork wrench” that is used in opening and closing the door. The fork wrench fits over the ribs and pressure on the wrench facilitates the closing or opening of the door. The fork wrench is a special manufactured tool to which the owner, after purchase, adds a 2 to 4 inch “cheater pipe”. A cheater pipe had been added to the fork wrench that was being used by the plaintiff. The door is opened by turning it counter-clockwise and is closed by turning it clockwise.

The accident happened on August 28, 1972. On this date the plaintiff and two fellow employees, John Manuel and Michael Soileau were ordered to go' to this particular station and retrieve the “pig”. Pursuant to regular custom they armed themselves with a fork wrench, a sledge hammer and a ten ton hydraulic jack. Plaintiff and Soileau proceeded on to the site of the destination of the “pig” and John Manuel went to about midway of the line of the run, which was about 16 miles, to listen for the pig to pass. After he heard the pig pass through the line he proceeded to where the other employees were. The plaintiff and Soileau had a most difficult time in opening the pig trap door. They first attempted to open the door with the fork wrench but this failed. Next they attempted to open the door by using the fork wrench and beating on the ribs with the sledge hammer and this failed. Then they placed two 4X4 pieces of lumber on the ground, placed the ten ton hydraulic jack on top of the 4 X 4’s, pumped the jack up to where it caught under one of the ribs and continued pumping on the jack on one side of the door and beating on the ribs on the other side of the door with the sledge hammer, whereupon they were successful in commencing the opening of the door. They opened the door fully but with considerable difficulty. After the door was opened Manuel arrived and he and the plaintiff pulled the pig from the line. Manuel and Soileau then proceeded to put the pig in the truck and do other things that were necessary to get the gas line back into operation and under normal flow. The plaintiff attempted to close the pig trap door. We observe at this time that we are accepting as the facts of the case, the testimony given by the plaintiff in his pre-trial deposition. This deposition was taken by the opposing party and preceded the trial by approximately one year. We are of the opinion that this deposition more nearly reflects actual facts as the answers were spontaneous and free, not subject to leading, suggestion and summation by his own attorney as was much of the testimony of the trial, and was closer in time to the date of the testimony of the trial, and was closer in time to the date of the accident than was the trial. The plaintiff testified that he put the door back in proper position on the threads and attempted to turn it with the fork wrench. He stated that from the very beginning it was difficult to turn the door. In spite of his knowledge of the difficulty in opening the door and the difficulty in closing the door he still attempted to do it alone and with the use of the fork wrench only. He was closing the door by placing the fork wrench on the ribs to his left and pushing up on the handle of the fork wrench. He stated that while pushing up the door became almost impossible to close and that the last attempt he made it only moved about an inch or an inch and a half and that was when he strained his back. After suffering this strain on his back he stated that the wrench moved slightly to the right but did not slip off of the ribs and that he took the wrench off of the ribs and laid it down. The plaintiff was asked (Tr. 185) the following questions:

“O. Do I understand correctly that you sustained your injury while you were straining to push this thing because it wouldn’t turn for some reason? It was too hard to turn?
A. Yes, sir.
Q. And you didn’t slip or anything like that?
A. No sir.”

The plaintiff further testified: (Tr. 190)

“Q. O.K., but the fact that there was play that didn’t have anything to do with how you hurt yourself did it?
A. Well it had the — I am not definite on this. But it would make the cheater pipe play a lot more when I did get hurt on it. And it might have contributed to the accident. I am not positive.
Q. You don’t know?
A. No sir I am not positive.”

(Tr. 192)

“Q. O.K. Once you came to the sudden stop, you say it went to the right.
A. Yes sir. It didn’t come off. But it did go to the right. And this is— well actually, when it went to the right I believe I had already felt the pain in my back. And I just — I just put the wrench down and I told the other two men that were there that I believed that I had pulled some muscles or something in my — I don’t know what the exact statement was. They were doing some work there also. Which is why they weren’t helping me.
Q. How hard were you pushing while you were moving it ?
A. In that inch and a half distance?
Q. How hard ?
A. (No response)
Q. Were you really straining hard?
A. Yes sir I was.”

After straining his back other employees assisted the plaintiff in closing the door. It was necessary to use the sledge hammer and jack to completely close the door.

The accident to the plaintiff was of his own making and was through no fault of his employer.

The judgment of the trial court is affirmed. The plaintiff is cast for all costs in the District Court as well as on appeal.

Affirmed.


author: LEMMON, Judge.

text:
    Delores ROBERTSON v. Peter MOORE and Henry Dierker.
    No. 7157.
    Court of Appeal of Louisiana, Fourth Circuit.

      Nov. 11, 1975.

    Foye L. Lowe, Jr., Baton Rouge, Associate Gen. Counsel, for Dept, of Public Safety, for defendant and third party defendant-appellant.
    Peter Moore, in pro per.
    Before SAMUEL, LEMMON and MORIAL, JJ.
   LEMMON, Judge.

In instituting this litigation, plaintiff sought to recover the amount of the purchase price she had paid for a stolen automobile as well as certain damages.

The automobile was stolen in November, 1972 from the then owner, Henry Dierker, who had left the title in the glove compartment. Dierker immediately reported the theft to the New Orleans Police Department, who immediately notified the Louisiana Department of Public Safety, Motor Vehicle Division.

On January 22, 1973 Peter Moore purchased the car, apparently from the thief or his accomplice, for $300.00 and applied for a new title, which was issued by the Department of Public Safety on February 7. Moore subsequently sold the car to plaintiff for $400.00 in May, 1973.

When Dierker located the car in plaintiff’s possession about two weeks later, plaintiff surrendered the vehicle and then instituted this suit against Moore and Dier-ker (who was immediately dismissed on an exception). Plaintiff subsequently joined the Department of Public Safety and the City of New Orleans, contending that the City violated R.S. 32:721 by failing to notify the Department of the theft reported by Dierker and that the Department violated R.S. 32:723 by failing to appropriately index the stolen vehicle report (if filed by the City) and failing to suspend the vehicle registration. Moore also filed a third party petition, seeking judgment over against the City and the Department on the same basis.

The trial court rendered judgment, after a trial on the merits, in favor of plaintiff and against Moore for the amount of the purchase price he had received from plaintiff, but dismissed plaintiff’s suit against the City and the Department. The trial court, however, rendered judgment against the Department on Moore’s third party demand, granting full indemnification. The Department filed the only appeal. We reverse the judgment as to Moore’s third party demand.

The Department admitted receiving notice from the City of the theft of Dierker’s car. Apparently, either the Department failed to comply with the requirements of filing and indexing the report and suspending the registration when it received the notice, or the Department overlooked the indexing and suspension when it issued a new title to Moore. The crucial issue is whether or not Moore was damaged because of the Department’s failures.

Since the judgment on Moore’s third party demand ordered the Department to indemnify Moore in the amount ($400.00) he was ordered in the same judgment to refund to plaintiff, the trial judge evidently reasoned that Moore sustained damages at the time of Moore’s sale to plaintiff (May, 1973). This amount, however, simply constituted a refund of the sum Moore received when he sold a car he did not legally own. The point in time when Moore actually suffered the damage in this case was the date he bought the car from the thief for $300.00 (January, 1973). This is the amount and time of Moore’s actual loss (and the amount he would be legally entitled to recover from the thief).

Since Moore did not apply for a transfer of title until after his purchase from the thief, the Department’s failure to thereafter notify Moore or Dierker that the application involved a stolen vehicle did not cause Moore any damage. Stated otherwise, proper notification by the Department upon the receipt of Moore’s application would not have prevented the damage that Moore had already sustained.

We hold Moore failed to prove that any error or' omission by the Department caused him damages.

Accordingly, the judgment of the trial court as to Peter Moore’s third party demand against the Department of Public Safety is reversed, and it is now ordered that judgment be rendered dismissing that third party demand. The other portions of the judgment of the trial court are not at issue on this appeal.

Judgment on third party demand reversed and rendered.

      . The judgment dismissing plaintiff’s claim against the Department is now definitive. Therefore, the issue as to whether the Department would be liable to plaintiff for the expense of repairing the car and replacing certain parts is not before us on this appeal by the Department.

      . Whether or not the Department notified Dierker when Moore applied for a title in January is not clear in the record, Dierker being uncertain on this point. The Department definitely notified Dierker when plaintiff applied for a title after purchasing the car from Moore in May, although the Department’s letter to Dierker (introduced into evidence) came after Dierker had recovered the vehicle from plaintiff.


author: PAVY, Judge.

text:
    Daniel Lee DAIGLE, Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY and Dr. John Doe, Defendants-Appellees.
    No. 5188.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 1975.
    Hagood & Putnam by Richard J. Putnam, Jr., Abbeville, for plaintiff-appellant.
    Pugh, Boudreaux & Gachassin by Charles J. Boudreaux, Bean & Rush by James W. Bean, Lafayette, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

Daniel Lee Daigle filed this malpractice suit while terminally ill with cancer. After his death, his widow and child were substituted to continue the survived claim, and they filed a separate suit (No. 5189 on this court’s docket) for their own wrongful death claim. This appeal is from a judgment based on a jury verdict in favor of defendants in the form of an interrogatory answer to the effect that the doctor was not negligent.

On January 11, 1972, Mr. Daigle consulted Dr. Andre Perron for an abnormal condition in his scrotum. He testified that he had noticed a painless lump in his left testicle about two or three weeks before he visited Dr. Perron, that the lump was on the top side of the testicle, that the lump was not visible, and that when he first went to Dr. Perron it was about the size of his little finger, %,th inch down, attached to the testicle itself and harder than the testicle. The doctor diagnosed it as epididymitis, prescribed antibiotics and an-tiinflammatory drugs and instructed the patient to return in two weeks. On February 5 the patient returned, the doctor examined him again, and prescribed Darvon for migraine headaches which Danny had at times. There is a dispute as to whether the doctor instructed Danny to return after the second visit. About March 22nd or 23rd, Danny experienced pain in his left testicle and on the 25th of that month consulted Dr. James Boudreaux, a practicing urologist in Lafayette. At this time the growth was about the size of his thumb, J^th of an inch from the top and in the same place on or in the testicle. The doctor diagnosed the condition as a testicular tumor and recommended exploratory surgery. On March 29, Danny consulted Dr. Thomas Kimbrough who also advised exploratory surgery, operated on Danny in Lafayette on April 3 and removed the left testicle and adjacent structures. Pathological examination at the Lafayette Hospital showed the tumor was malignant, and Danny was referred to the New Orleans Charity Hospital for further treatment. About two weeks later, he was operated on at that hospital, and the lymphatic system serving the testicles was removed. Two of the lymph nodes, distant in the system from the testicles, had metastatic lesions showing that the cancer had spread to those points. In October, metastatic lesions showed up on a lung in x-ray and in the liver by a scanning process. In February, 1973, Danny died of the cancerous condition.

Plaintiff contends: (1) that the condition in the scrotum which Dr. Perron examined on the first visit was a testicular tumor and not epididymitis, and (2) that in failing to detect or diagnose the condition as a tumor, the doctor was negligent and (3) that the malignancy spread from the testicle into the blood stream or from the lymph nodes into the blood stream during the delay attributable to the mis-diagnosis, thus causing uncontrolled metastasis and eventual death.

There appears to be no question regarding the applicable law or standard of care required of a general practitioner in the City of Lafayette or the application of the standard of care to the established facts of the case. The resolution of negligence must ultimately be determined by a decision as to whether the condition presented to Dr. Perron was a testicular tumor or epididymitis.

The testicle is oblong in shape. When the human male stands erect the two poles or elongated ends are vertically positioned, i. e., one at the top and one at the bottom. The epididymis is a small tube or duct about *4 inch in diameter which starts at the top of the testicle and travels to the rear and downward and courses away from the testicle near the bottom. It actually adheres to or is fused with the testicle but is not encased in the testicular capsule and has a prominence of its own.

At the time of trial Dr. Perron had been in active private practice since 1969. He had the usual medical school education with internship and served three years at Pensacola, Florida in the Navy at which time he had general medical care of Naval personnel of which most were young males. According to testimony, he was qualified and competent to diagnose and treat epididymitis. He admitted that a painless lump in the testicle was a classical description of a testicular tumor. He stated he could differentiate between an epidi-dymitis and a testicular tumor; that a general practitioner in Lafayette ought to be able to so differentiate; that if the condition presented to him was a testicular tumor and not an epididymitis he had fallen below the standard of skill possessed by physicians in Lafayette; that if he had had any doubt as to whether the condition was in the testicle or in the epididymis he would have written it down on his notes; that in some cases there can be difficulty in distinguishing the conditions when the area is extremely swollen.

There are certain facts regarding the medical evidence which are undisputed and should be observed at this point: That testicular tumors are extremely rare; that the classical medical description of a testicular tumor is a painless lump in the testicle; that they generally occur between the ages of 20 to 40; that a layman will often describe a condition as being in his testicle when it is in fact outside the testicular capsule but within the scrotal sac; that ep-ididymitis is one of the most common ailments of the male reproductive system and usually is accompanied by pain and swelling but not infrequently these qualities are lacking; that it sometimes localizes in a portion of the epididymis in the form of a nodule; that a malignant tumor (commonly called cancer) is one that has the capacity to spread or metastasize from its original or primary site to other parts of the body and invade, impair and destroy the functioning of vital organs; that the rate of growth of a tumor varies not only as between types of tumors but from individual or individual.

The law is well settled that a physician, surgeon or dentist is not required to exercise the highest degree of skill and care possible and that as a general rule it is his duty to exercise that ordinarily employed under similar circumstances by members of his profession in good standing in the same area and to use reasonable care and diligence along with his best judgment in the application of his skill to the case. See Meyer v. St. Paul Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953).

Plaintiff argues that certain statistical information is of compelling probative force in determining whether Dr. Perron met that standard of care. Dr. Markland testified that testicular tumors affect one out of every 50,000 males between the ages of 20 and 40. The plaintiff further points out that, under defendants’ theory of the case, the tumor had to come into existence at a certain time and that it had to occur in the same testicle affected by the epidi-dymitis. We do not think the 50,000 to 1 odds are relevant. The fact is that the cancer did occur. Epididymitis is probably the most common ailment of the male reproductive system. We think there is force to plaintiff’s argument, not because of the odds against the cancer occurring at all or that it occurred in the same testicle, but that it occurred at the particular time. The coincidence is extreme, but it does not constitute a compelling or conclusive factor. General statistical information should be considered along with all the other evidence and can rarely be conclusive.

Under defendants’ theory of the case, the tumor was not palpable at the last visit to Dr. Perron on February 12. Thus it would have to have grown from a nonpalpable size at that time to the size of a thumb incb down when it began bothering Danny on March 22nd or 23rd. There are expressions from the experts that such a rate of growth would have been fairly rapid but others state that it would not have been unusual. These testicular tumors are notoriously fast-growing. Instances of nontesticular tumors reaching sizes much bigger than this and in a shorter time were cited by the experts. Of great importance here is that the size of the tumor at removal and just prior thereto was not completely due to' growth. Both Drs. Brierre and Markland, agreed that the pain episode of March 22nd or 23rd was probably due to a hemorrhage within the tumor. Dr. Brierre explained that when hemorrhage occurs the blood flows out into the tissues and presses against blood vessels. The veins, having less counterpressure, are shut off before the arteries. The blood continues to flow to the hemorrhaging area through the arterial circulation but is not taken out of it by the venous circulation. The result is that the tumor increases in size not from growth but from engorgement with blood. This same effect can occur during surgery because of ligations. There is little, if any, probative force for plaintiff in the growth factor.

Another issue was that stemming from the absence of miscroscopically observable traces of infection in the epididymis. The general trend of the expert testimony is that the severity and type or cause of the infection in the epididymis would determine whether traces would remain on the date of the operation. The cause of the alleged epididymitis is not shown. It would appear that the alleged epididymitis was slight or moderate. There was little or no swelling; and pain, if any, only arose from pressure. Dr. Markland was very emphatic that epididymitis in January or February would have left traces in early April. He had no actual statistics and based this mostly on removal of epididymides in acute stages of infection or involving chronic histories. We do not think this claim, based on absence of traces of the infection, has anything other than moderate probative value for plaintiff.

Absence of pain is consistent with a tumor but does not necessarily negate epidi-dymitis. The expert opinion is that there could be a mild or low-grade infection of the epididymis without pain but this would not be the usual case.

Dr. Perron’s records indicated the epidi-dymis was firm. There is no notation that it was enlarged to a palpable degree. This problem is similar to that of pain to the extent that the expert’s opinions indicate enlargement is usually the case but not necessarily so. This would be a factor in plaintiff’s favor.

Plaintiff argues that the doctor’s notation in his records that the deceased “still” had a nodule on second visit but that the presence of a nodule was not noted on his first visit indicates that the doctor failed to detect the nodule (tumor) on the first visit. There was a lengthy and inconclusive interrogation of the doctor on the meaning of the word “still” in the stated context. Suffice it to say that there was substantial expert testimony that an epididymitis can resolve itself into a nodule. We do not think any specific and unalterable meaning can be assigned to the questioned expression. Little or no strength or force for plaintiff is to be had on this issue.

Plaintiff relies to a considerable extent on the lay description of the abnormality. The deceased stated the lump was in the testicle. On trial, his wife stated that the lump or mass was in the testicle but sticking out or bulging. In a deposition, she had been made to differentiate between the testicle and the scrotum and stated that the lump was separate from the testicle. At trial, she disavowed her deposition answer and blamed it on nervousness and confusion over the question. This testimony is set out previously. Preponderating credence to her original statement would be an extremely strong factor in defendants’ favor.

It is noted that a decrease in size of the abnormality between the visits to Dr. Per-ron would be inconsistent with tumor and consistent with infection. Tumors do not shrink but the cure of an infection decreases any swelling. Danny himself testified to a decrease in the size of the lump or mass. This was confirmed by his wife and Dr. Boudreaux. The extent to which it had decreased is indicated by the fact that, in discussing the problem, Danny asked Dr. Boudreaux if he couldn’t take the same medicine prescribed by Dr. Per-ron to “diminish it”. We consider this size decrease tó be a fact in defendants’ favor.

It is well settled that the plaintiff in a malpractice suit bears the burden of proof. Meyer v. St. Paul Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953); Pope v. St. Paul Fire & Marine Insurance Co., 299 So.2d 863 (La.App. 2d Cir. 1974); Johns v. Gauthier, 266 So.2d 504 (La.App. 4th Cir. 1972).

Reference is made to a statement in the Meyer case, supra, as follows:

“The rule makes it incumbent on the physician, surgeon or dentist who becomes defendant in a malpractice case to show that he is possessed of the required skill and competence indicated and that in applying skill to the given case he used reasonable' care and diligence along with his best judgment.”

We cannot construe that language to mean that defendant herein must show that the condition was epididymitis and not a testicular tumor. We think the evidence showing that the doctor did make the required examination by palpation discharges the burden imposed by the quoted language. Whether that examination was physically insufficient or he misconstrued his findings depends on what the condition was at that time. That is an issue under plaintiff’s basic burden of proof.

The case is a difficult one. There are various factors on both sides. In some instances, evaluation of credibility is involved. Further decisions were necessary to give to credible testimony its proper effect in the overall evaluation of the case. The weighing of the opinions of the experts was extremely important. There were a substantial number of evidentiary issues peculiarly within the province of the fact-trier. The rule mandating affirmance of a verdict not manifestly erroneous is peculiarly appropriate here. See Cantor v. Koehring Company, 283 So.2d 716 (La.1973) and authorities cited therein; Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3rd Cir. 1974).

By answer to appeal, defendant seeks annulment of a forma pauperis order. The motion to traverse was filed during a 2 to 3 week gap in the trial, heard on the last day of the trial by the judge in chambers and decided on the strength of plaintiffs’ affidavit with defendant being allowed to make an offer of proof. The affidavit shows the widow and child jointly have social security income of $442 per month, that she has a net worth of $1,383.-24, that said net worth exceeds her savings by only $253.34, that the child has savings of $2,250, accumulated from social security benefits, that since losing her job, the widow’s assets are being depleted, that the social security benefits received by her and the child jointly are not sufficient to support them in their accustomed manner. Upon consideration of these facts, the nature of the claim and the fact that a jury trial was almost completed when the challenge was made to the pauper status, we think that the trial judge was eminently correct in declining to rescind the previous order allowing plaintiff to proceed without payment of costs. We do not feel that the matters contained in the offer of proof would change the outcome.

For the reasons assigned, the decision of the district court is affirmed. All costs of these proceedings are to be paid by plaintiffs-appellants.

Affirmed.


text:
    Mrs. Gloria D. DAIGLE et al., Plaintiffs-Appellants, v. ST. PAUL FIRE & MARINE INSURANCE CO. and John Doe, Defendants-Appellees.
    No. 5189.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 1975.

      Hagood & Putnam by Richard J. Putnam, Jr., Abbeville, for plaintiffs-appellants.
    Pugh, Boudreaux & Gachassin by Charles J. Boudreaux, Bean & Rush, by James W. Bean, Lafayette, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

This is a companion case to Daigle v. St. Paul Fire & Marine Insurance Co. and Doe, 323 So.2d 186 in which a separate judgment is being rendered by us this day. The issues in these two cases are the same and our determination in the companion case is dispositive of the appeal in this matter.

For the reasons assigned in the companion case the judgment in favor of defendants and against plaintiffs is affirmed.

The appellants are assessed for all costs of this appeal.

Affirmed.


author: BLANCHE, Judge.

text:
    Joe PELT v. CEMENT PRODUCTS SERVICE, INC., and Fireman’s Fund Insurance Co.
    No. 10499.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Alfred E. Mitchell, Plaquemine, for appellant.
    William C. Kaufman, III, Baton Rouge, for appellees.

      Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This is a suit by plaintiff-appellant, Joe Pelt, for workmen’s compensation benefits against his former employer, defendant-ap-pellee, Cement Products Service, Inc., and its workmen’s compensation insurer, Fireman’s Fund Insurance Company. The parties stipulated at the beginning of trial that the plaintiff was injured during the course and scope of his employment, that Fireman’s Fund Insurance Company had issued a policy of workmen’s compensation insurance to Cement Products Service, Inc., and that as a result of this injury plaintiff received workmen’s compensation benefits for five weeks at the rate of $36.40 per week and reimbursement for medical expenses in the amount of $106.08.

The sole question presented on this appeal is the nature and extent of plaintiff’s injury and whether by virtue of such injury he is totally and permanently disabled. Plaintiff contends he is totally and permanently disabled because of an injury to his ribs, chest and back which allegedly occurred on November 12, 1972, while he was driving a cement spreader. While the date of the injury is not crucial to a resolution of the case, there is some confusion as to the correct date of plaintiff’s injury. The treating physician’s records show that plaintiff was originally seen by him on October 13, 1972. We accept this date as the best evidence of when plaintiff was injured.

The trial court rejected plaintiff’s contention that he was totally and permanently disabled and dismissed his suit. We affirm.

The plaintiff, who was 55 years old and who was not qualified for work other than common labor, was employed by Cement Products Service and drove a cement spreading machine. Plaintiff stated that while he was driving the machine he ran into a big rock with his left front wheel and as a result thereof injured himself by hitting his ribs on his own right elbow.

The only physician to treat plaintiff was Dr. Joseph Thomas Micelli, who first examined plaintiff in the Emergency Room of the West Feliciana Parish Hospital. Upon examination he found that plaintiff had a moderate amount of tenderness along the lower rib margin on the right side approximately where the ribs attach to the breast bone. Because plaintiff stated that pain to his ribs increased upon coughing or taking a deep breath, he was provided with a rib belt, which is a type of elastic device to support the rib cage. Plaintiff was also given medication for pain and told to apply heat to the ribs. After seeing plaintiff for a period of approximately six weeks, the doctor discharged him as being able to return to work full time. The doctor’s diagnosis at the time of injury was that plaintiff had a simple contusion or bruised ribs.

Even though plaintiff testified that he has been unable to work since the accident, the evidence is to the contrary. Francis M. Stevens, an employee of defendant, testified that the payroll records of the company showed that plaintiff worked twenty-four hours during the week ending November 19, 1972, and 16.20 hours during the week ending November 26, 1972. When confronted with this testimony, plaintiff explained he was unable to do more than just ride around. However, a defense witness testified there were no light duty jobs at plaintiff’s place of employment.

Another employee of Cement Products Service, Lynn F. Fickle, testified that he recalled the plaintiff being injured on the job and that four or five weeks after he had been off, plaintiff came back and requested work but at that time no job was open to him driving a cement spreader. He then testified that other employment was arranged for plaintiff.

In a workmen’s compensation case, as in other civil suits, the plaintiff must establish his claim by a preponderance of the evidence and to a legal certainty as in any other civil suit. This burden is not relieved by the liberal construction placed upon the statute. Grigsby v. Argonaut Insurance Company, 297 So.2d 698 (La.App. 1st Cir. 1974), and cases cited therein.

The only evidence plaintiff adduced to show he was unable to perform the same type of work after the accident that he performed prior to his injury was his own testimony. This evidence is entirely unsupported by any medical evidence. The only medical evidence in the record shows that he is not so disabled.

The case is resolved by our finding, as did the trial judge, that plaintiff did not prove he was totally and permanently disabled.

Accordingly, the judgment of the trial court is affirmed, at the cost of plaintiff-appellant.

Affirmed.


author: HOOD, Judge.

text:
    R. P. SMITH, Plaintiff-Appellant, v. Louis A. ROBERTSON et al., Defendants-Appellees.
    No. 5203.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 11, 1976.
    Stephen J. Ledet, Jr., Opelousas, for plainti f f-appellant.
    Seale, Smith, Baine & Phelps, by Robert W. Smith, Baton Rouge, for defendants-appellees.

      Before HOOD, HUMPHRIES, and PETERS, JJ.
   HOOD, Judge.

Plaintiff, R. P. Smith, claims damages for personal injuries and other losses sustained by him as a result of a motor vehicle collision which occurred in St. Landry Parish. The defendants are Louis A. Robertson, Freiler Industries, Inc., and Transit Casualty Company. Judgment was rendered by the trial court in favor of defendants, and plaintiff has appealed.

The issues presented are whether defendant Robertson, the driver of one of the vehicles involved in the collision, was negligent, and whether he had the last clear chance to avoid the accident.

The collision occurred at about 10:30 A. M. on November 16, 1968, at the intersection of Louisiana Highway 167 and Cres-well Lane, near Opelousas, in St. Landry Parish. Highway 167 is a four-lane, divided, heavily traveled, concrete thoroughfare which runs generally north and south. Two lanes are for southbound traffic and the remaining two lanes are for northbound vehicles. A wide neutral ground separates the northbound from the southbound lanes. Creswell Lane is a hard surfaced street or highway which runs generally east and west at the point where it intersects Highway 167, and it also is a four-lane, divided highway at that intersection. Both of these thoroughfares are relatively straight and they are level. The weather was clear and visibility was good at the time of the accident.

Immediately before the accident occurred, plaintiff Smith was driving his own truck-trailer combination east, in one of the two eastbound lanes of traffic on Creswell Lane. When he reached the intersection of Creswell with the southbound lanes of traffic on Highway 167, he proceeded to cross that highway, and while the front of his truck was in at least one of the southbound lanes of that highway, it collided with another truck-trailer combination which was being driven south on Highway 167 by defendant Robertson.

The vehicle being driven by plaintiff was a large diesel, cab-over-engine truck and trailer combination. The trailer was loaded with 42,000 pounds of sweet potatoes, and the entire vehicle with its load weighed about 72,000 pounds. The vehicle being driven by Robertson was a relatively new Mack truck, with a long flatbed trailer. That combination of vehicles was about 50 feet long. The trailer was not loaded, and the weight of the truck and trailer was approximately 25,000 pounds.

Robertson was employed by Freiler Industries, Inc., and he was performing duties in the course of his employment at the time the accident occurred. Transit Casualty Company was the liability insurer of Freiler at that time.

Richard Hughes, who also was an employee of Freiler, was riding as a passenger in the Robertson truck at the time of the accident. Hughes testified by deposition and his testimony is in the record. Bill Henry Hurst was riding as a guest passenger in the Smith truck at that time. The parties stipulated, however, that Hurst has no recollection of how the accident occurred, due possibly to amnesia sustained by him as a result of the collision, and for that reason he was not called as a witness by either party.

Smith and Robertson, the drivers of the vehicles involved in the accident, gave conflicting and irreconcilable versions of how the collision occurred.

Smith’s version is that he followed a tank truck which was traveling east on Creswell Lane to the intersection, that that truck stopped before proceeding to cross Highway 167 and that Smith brought his vehicle to a stop behind the tank truck. After the tank truck negotiated the crossing, Smith pulled his truck up several feet and stopped it again, with the front bumper of his truck about six feet west of the west edge of the highway. Smith testified that he then looked to his left and saw no vehicles approaching, so he put his truck into first gear and proceeded into the crossing. He stated that he looked to his left again as the front of his truck entered the intersection, and he then observed the Robertson truck for the first time, about 300 feet away, approaching from the north. He immediately applied his brakes, pulled to his right and brought his truck to a complete stop, with the front of his vehicle “about halfway into the first lane, the right hand lane in the southbound direction.” Smith testified that the Robertson truck was in its right, or the outside, lane for southbound traffic on the highway when he first saw it, and that he expected the driver, Robertson, to pull to his left into the inside lane and go around the front of his parked truck and thus avoid an accident, but that instead the Robertson truck struck the cab of plaintiff’s truck.

Robertson testified that he was traveling at a speed of 40 to 45 miles per hour in his right, or the outside, lane of traffic on the highway as he approached the above intersection. He saw the Smith truck approaching the same intersection from the west, on Creswell Lane, when both vehicles were about 400 or 500 feet from it. He knew that stop signs and a red blinking traffic light required motorists on Creswell Lane to stop before entering the crossing, and he assumed that the driver of the Smith truck would obey those traffic signals. He nevertheless let up on his accelerator and reduced his speed to 30 or 35 miles per hour when he was 400 or 500 feet from the crossing, because of the blinking yellow traffic lights at that point. He stated that when he reached a point about 150 feet from the crossing he realized for the first time that Smith did not intend to stop, and he thereupon immediately pulled to his left, into the inside traffic lane, and he applied his brakes momentarily further reducing the speed of his vehicle. He then decided to accelerate the speed of his truck instead of trying to slow it down, in the hope that he could get through the intersection ahead of Smith and thus avoid a collision. His testimony is that there was no tank truck or any other vehicle ahead of Smith as he approached that crossing, that Smith did not bring his truck to a stop at any time before proceeding to cross Highway 167 or before it struck the Robertson vehicle, and that the front of the Smith truck struck the right side of the Robertson vehicle at a point behind the cab, or at about the front of the trailer.

The testimony of Hughes, the passenger in the Robertson truck, throws very little light on the question of how the accident occurred. Hughes was not looking at the highway ahead when it became apparent to Robertson that a collision might occur, and when the latter made Hughes aware of the emergency Hughes immediately got on the floor of the truck, and he did not witness the accident. Hughes did confirm the fact, however, that Robertson was driving about 40 miles per hour as he approached the intersection, and that he reduced the speed of that vehicle to about 30 miles per hour before the accident occurred and before the driver became aware of an emergency.

Other evidence, including photographs taken of the scene of the accident while the vehicles were still there, shows that the front of the Robertson truck was not damaged at all, but that substantial damage was done to the right side of that vehicle, at a point just behind the cab or at about the front of the trailer. After the collision, the Robertson vehicle veered slightly to its left, and it continued to travel in an upright position in a southeasterly direction into the neutral ground. Neither vehicle left any skid marks before the accident occurred. The wheels of the Robertson vehicle became locked immediately after the collision, however, probably as a result of the impact, and that truck left skid marks about 190 feet long extending from the point of impact to the place where the truck came to rest.

The evidence also shows that the front end of the Smith truck and the cab were practically demolished as a result of the accident. The trailer overturned and the photographs and evidence indicate that it was a total loss. The truck portion of the Smith truck-trailer combination apparently was turned around completely as a result of the collision, so that it came to rest facing west after the accident, with the front wheels in the inside southbound lane of traffic and the demolished cab in about the center of the two southbound lanes. The rear wheels of the truck came to rest on the east shoulder of the southbound lanes of the highway, about four or five feet east of the east edge of the concrete slab. The overturned trailer apparently made a 90 degree turn to its right as a result of the impact, and it came to rest with its wheels about on a line with the east edge of the southbound lanes of traffic on the highway, and with the major part of the overturned trailer lying east of the east line of that part of the highway, partly on the east shoulder and on the neutral ground east of the southbound lanes. It is apparent that the Smith truck and trailer traveled several feet east of the point of impact after the collision occurred, a substantial part of both of those units having crossed both southbound lanes of traffic and reached the east shoulder of that part of the highway. We find it difficult to rationalize how the Smith truck and tractor happened to come to rest largely on the east side of the highway if those units, in fact, were parked at the time of the collision, with only the front end of the truck being on the west or outside lane of traffic and the rest of that combination, including all of the trailer and the back end of the truck, being west of that roadway.

Plaintiff argues that the accident could not have occurred as related by Robertson, because the much greater weight of the Smith- truck would have pushed the Robertson vehicle a considerable distance further to the east. There is no merit to that argument, because we find it equally logical, by applying principles of physics, to reason that the momentum of the Robertson combination of vehicles caused the Smith truck to turn sharply to its right when the impact occurred, with the result that the Smith truck came to rest facing in the opposite direction and the tractor turned over on its left side.

The trial judge found that “the version of the accident testified to by defendant, Louis Robertson, has been proved by the preponderance of the evidence,” that “the accident occurred near the center line of the southbound lane of U.S. 167,” and that “the Smith vehicle collided with the right side of the Robertson truck directly behind the right cab door.” He concluded that “plaintiff has failed to prove that defendant was negligent, proximately causing the collision and resulting injuries and damages,” that “the accident was caused by the negligence of the plaintiff in failing to stop in deference to the superior right of way of plaintiff,” and that the evidence fails to show that Robertson had the last clear chance to avoid the accident.

Plaintiff contends primarily that the trial judge erred in holding that Robertson was free from negligence. His argument is that Robertson should have reduced his speed more as he approached the intersection because of the blinking amber traffic lights, especially since he saw Smith approaching the intersection. He relies on State Farm Mutual Insurance Company v. Merritt, 185 So.2d 832 (La.App. 3 Cir. 1966), to support that argument.

We held in Merritt that a motorist on a right of way street who is confronted with a yellow light must exercise caution and vigilance as he enters the intersection in order that he may ascertain whether he can proceed into the crossing with safety. The evidence in the instant suit convinces us that Robertson exercised the required degree of caution and vigilance as he approached this intersection. He reduced his speed before he reached the crossing, and he observed the Smith vehicle approaching as soon as it was reasonably possible for him to do so and long before each vehicle reached the intersection. See LSA-R.S. 32:234: Ardoin v. Crown Zellerbach, 232 So.2d 136 (La.App. 3 Cir. 1970); Insured Lloyds v. Liberty Mutual Insurance Co., 286 So.2d 420 (La.App. 1 Cir. 1973).

Robertson had the right to assume that Smith would observe the existing traffic signals and that he would stop before proceeding to cross Highway 167. We think he determined as soon as it was reasonably possible for him to do so that Smith did not intend to stop, and when he made that observation he immediately took reasonable precautions to avoid a collision. The evidence shows that he moved as far to his left as he could. Some posts and a concrete median prevented him from driving onto the east shoulder of the southbound lanes of traffic.

We find no fault on Robertson’s part in deciding to accelerate the speed of his truck instead of continuing to apply his brakes as he neared the crossing. The evidence indicates that he could not have stopped his truck before he reached the point of impact even if he had continued to apply his brakes. He was 150 feet from the intersection when he first discovered that a collision was imminent. He obviously could not bring his vehicle to a stop within 150 feet, since a distance of 190 feet was required to bring it to a stop after the collision, with all of the wheels skidding. It must have been apparent to him that the accident could not be avoided by continuing to apply his brakes, and we think his decision to accelerate his speed in an effort to get through the crossing ahead of Smith was reasonable, despite the fact that it was made in a sudden emergency.

After considering all of the evidence, we agree with the trial judge that Robertson was free from negligence.

There is no merit to the argument that plaintiff is entitled to recover under the doctrine of last clear chance. One of the elements of proof necessary for the application of that doctrine is a showing that the defendant could have avoided the accident after he discovered, or reasonably should have discovered, plaintiff’s position of peril. Jackson v. Continental Casualty Company, 308 So.2d 438 (La.App. 3 Cir. 1975). We have held Robertson could not reasonably have avoided the accident after he discovered, or should have discovered, Smith’s position of peril.

In view of the above conclusion, it is unnecessary for us to consider the additional argument made by defendant that the doctrine of last clear chance cannot be applied in any case where there is no evidence of any negligence on the part of the defendant. See Kemp v. Kennedy et al., 283 So. 2d 773 (La.App. 1 Cir. 1973); David v. Home Insurance Company et al., 268 So.2d 155 (La.App. 1 Cir. 1972).

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Affirmed.


author: LEMMON, Judge. GULOTTA, Judge

text:
    BANK OF THE SOUTH v. Fred D. KORNER and Mark C. Smith, Jr.
    No. 6814.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 1975.

      Richards & Hoepffner, New Orleans (Charles E. Richards, New Orleans), for plaintiff-appellee.
    Windhorst, Heisler, deLaup & Wysocki, New Orleans (Henry L. Klein, New Orleans), for Mary C. Smith, Jr., defendant-appellant.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA and BOUTALL, JJ.
   LEMMON, Judge.

This is a suit by the Bank of the South against Fred Korner, the maker of a promissory note, and Mark Smith, whose contract Korner had assigned to the Bank as security for the note. After Korner was discharged in bankrutpcy, the matter proceeded to trial on the merits against Mark Smith, and judgment was rendered holding Mark Smith liable to the Bank for $15,268.75, which was apparently the amount found to be due Korner under the contract. Smith has appealed.

The Department of Highways had expropriated certain immovable property from L. P. Smith (apparently not related to Mark Smith). In 1967 Mark Smith paid $50,000.00 to L. P. Smith for an option to purchase the residual property not used for highway construction, when and if the unused portion became available to L. P. Smith for reacquisition under R.S. 48:221.

In 1969 Mark Smith entered into a contract with Korner, whereby in consideration for the services to be performed by Korner in negotiating with the Department for reacquisition of the property, Mark Smith agreed to pay Korner one-half of the net profits to be derived from the immediate resale of the reacquired property to a third party. This agreement was subsequently modified on several occasions.

Korner thereafter assigned his rights in the contract with Mark Smith to the Bank as security for the note. The property was ultimately required by L. P. Smith and sold the same day to a third party for $144,057.00 more than L. P. Smith paid the Department as the price of reacquisition.

Serious factual and legal questions are presented as to whether the “assignment” was an assignment (transfer) or a pledge or even a security device at all, whether the Bank provided the required notice to Mark Smith of Korner’s “assignment”, whether Korner’s rights under the contract were terminated on account of his failure to perform, and whether a subsequent payment to Korner on behalf of Mark Smith constituted a payment for services under the contract. However, we find it unnecessary to reach these issues.

R.S. 48:221, while authorizing the Department of Highways to sell any excess property at public auction after completion of the highway for which the property was acquired, also provides an exception to the general requirement of a public sale and authorizes the Department in its discretion to sell the excess property to the original vendor at private sale for the original price or the current appraised value, whichever is higher.

When Mark Smith employed Kor-ner to “negotiate” with the Department of Highways, the only thing subject to negotiation was whether or not the Department would exercise its discretion to sell the excess property at private sale at a price to be determined as provided in the statute. However, from the overall circumstances surrounding the negotiations (to the extent these circumstances are incredibly revealed by the record) — that Mark Smith paid $50,000.00 for an option to purchase the property upon reacquisition, that he agreed to divide the profits from an immediate resale (above $50,000.00 and other expenses) with Korner, that Korner agreed to pay $20,000.00 out of his half of the anticipated profits to Howard Netterville and James Curro (who intervened in the suit to collect on that agreement) solely for making “phone calls to Baton Rouge” and that the excess property supposedly sold in compliance with the statute at current appraised value was resold the same day at a price almost 30% higher than that received by the Department — we conclude that the parties intended by the contract that Korner (and others) would “negotiate” with the Department of Highways to have the sale price set at less than the price required by the statute (to the obvious detriment of the State of Louisiana). Obviously, the agreement between Mark Smith and Kor-ner did not have the “lawful purpose” required by C.C. art. 1779 for the validity of a contract.

The Bank is at best an assignee attempting to enforce Korner’s rights under an invalid contract. If Korner were attempting to enforce these rights, we would undoubtedly hold the contract unenforceable. We have hesitantly concluded that we should likewise deny enforcement of such a contract by Korner’s assignee, although this denial may (if his other defenses to this suit fail) enure to the benefit of the party who knowingly profited from Kor-ner’s “negotiations”. We simply are unwilling to allow the courts to be used to enforce contracts with an illegal purpose such as that involved in this suit. We consider the contract, which bargained for the performance of an illegal act, as having no existence in law. 2 Plainol, Traité Éíémentaire de Droit Civil § 1009 (La.St. Law Inst.Trans., 11th ed. 1959); IV Au-bry & Rau, Cours de Droit Civil Frangais § 344 (La.St.Law Inst.Trans., 6th ed. 1965).

Accordingly, the judgment of the trial court is reversed, and it is now ordered that this suit be dismissed. Each party is to bear its own costs.

Reversed and rendered.

GULOTTA, J., dissents and assigns reasons.

GULOTTA, Judge

(dissenting).

I agree with the majority that the record contains inferences of impropriety and I concur with the decision to call the case to the attention of the Attorney General. Nevertheless, the party who initially promoted the unlawful arrangement profits from the decision reached by the majority. The bank has not been afforded the opportunity to develop evidence relating to its knowledge of these negotiations and their unlawful purpose. Furthermore, we have not been briefed on whether the bank as the assignee has any greater right than Korner has under the circumstances of the instant case. The basis upon which the majority has reached its decision has not been argued, either in brief or orally. I dissent from the reversal of the trial court’s decision without affording opportunity for re-argument or for possible remand, if on rehearing, a remand is deemed proper.

      . When a majority of the non-unanimous panel of three judges who originally heard this case proposed to modify the trial court judgment, the case was submitted to a panel of five judges in accordance with La.Const.1974, art. 5, § 8(B).

      . The case has been called to the attention of the Attorney General for any investigation and action deemed necessary by his office.

      .The Bank’s then president testified that Korner gave the Bank a copy of the contract with Mark Smith and that “we were involved in helping with the negotiations for the reacquisition of that Square 317.” He also admitted that he had co-signed other of Komer’s debts.


author: STOULIG, Judge. LEMMON, Judge

text:
    Louise Suarez, wife of Earl P. DESSELLE v. Earl P. DESSELLE.
    No. 7355.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 1975.
    Evangeline M. Vavrick, New Orleans, for plaintiff-appellant.
    Oliver S. Livaudais, Jr., Charles H. Li-vaudais and Robert J. Klees, Chalmette, for defendant-appellee.
    Before SAMUEL, LEMMON, and STOULIG, JJ.
   STOULIG, Judge.

On defendant’s motion we dismiss this appeal as premature because the order granting plaintiff an appeal was signed by the trial judge on the same day he signed an order setting for trial defendant’s motion for a new trial. At the time the district judge could not divest the trial court of jurisdiction without first rendering a decision on the timely filed motion for a new trial.

These dates are significant:

August 14, 1975 — Judgment rendered on rule for alimony pendente lite and increased child support that had previously been tried and taken under advisement.
August 15, 1975 — Notice of judgment mailed by Clerk of Court to both counsel.
August 22, 1975 — Plaintiff filed a motion for appeal. Defendant filed a motion for a new trial.
August 29, 1975 — Trial judge signed orders granting the appeal and fixing the motion for a new trial for hearing.
September 22, 1975 — Minute entry of court reflects the granting of a new trial to defendant on all issues and setting November 20, 1975 as the trial date.

The motion for a new trial was timely filed by the defendant within the 7-day delay (exclusive of legal holidays) allowed in C.C.P. art. 1974, which commenced to run on August 16, 1975, the day-following the mailing of the notice of judgment by the Clerk of Court (C.C.P. art. 1913). The 30-day appeal period prescribed by C.C.P. arts. 3942 and 3943 did not begin to run until the 7-day delay for applying for a new trial had expired. C.C.P. art. 2087(1).

Applying these articles of the Code, of Civil Procedure to the facts of this case (involving one defendant and one plaintiff), there is no final judgment from which an appeal will lie until the expiration of the delays for the filing of a motion for a new trial or until the merits of the motion have been adjudicated.

For the foregoing reasons the appeal is dismissed at appellant’s cost.

Appeal dismissed.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring).

In my opinion the appeal by the wife was not premature, although the appeal was filed during the delay for applying for a new trial and the husband’s application for new trial had not yet been disposed of at the time the appeal was granted.

C.C.P. arts. 3942, 3943 and 2087(1) set the outer limit of the delay within which an appeal can be taken. Nothing in the Code prohibits the taking of an appeal immediately following judgment and before the expiration of the delay for applying for a new trial.

Furthermore, after the trial judge granted the appeal, he retained jurisdiction to act on the motion for new trial, since an appeal divests the trial court of jurisdiction only as to “matters in the case reviewable under the appeal”. C.C.P. art. 2088.

Nevertheless, the granting of the new trial to the husband had the effect of vacating the judgment appealed from and thus rendered the wife’s appeal moot. I therefore concur in the dismissal of the appeal as moot.

      . If the husband’s application for new trial had been denied, then the wife’s appeal would have remained effective, and there would have been no necessity for her filing another appeal.