author: HOOD, Judge. DOMENGEAUX, Judge,

text:
    John Curley PREJEAN, Plaintiff-Appellant, v. UNITED STATES GYPSUM COMPANY et al., Defendants-Appellees.
    No. 5799.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      Allen, Gooch & Bourgeois, by Kenneth W. Cole, Lafayette, for plaintiff-appellant.
    Davidson, Meaus Onebane & Donohoe by V. Farley Sonnier, Lafayette, for defendant-appellee.
    Before HOOD, CULPEPPER and DO-MENGEAUX, JJ.
   HOOD, Judge.

John Curley Prejean seeks to recover damages for personal injuries sustained by him as a result of an automobile accident. The defendants are Lowell M. Burvant, United States Gypsum Company and American Motorists Insurance Company. Judgment was rendered by the trial court in favor of plaintiff, awarding him $25,470.82. Plaintiff appealed.

The only issue presented is whether the amount of the award should be increased.

The accident occurred at a highway intersection in Lafayette Parish on January 8, 1974. Plaintiff stopped his pickup truck at the intersection, and shortly thereafter the rear of that truck was struck by the front of an automobile owned by United States Gypsum Company and being driven by its employee, Burvant. The accident was minor in nature. Burvant was travelling about 10 miles per hour as he approached the intersection, but he saw plaintiff’s truck ahead of him and applied his brakes shortly before the collision occurred. The damage to the Burvant automobile was described as “a ripple in the fender,” and the cost of repairing it amounted to $129.00. The left side of the rear bumper of plaintiff’s truck was bent or twisted, and the cost of repairing that damage amounted to $151.31.

Plaintiff owned and operated a commercial refrigeration sales and service business. He was self-employed, and from time to time he employed other persons to assist him in that business. At the time the accident occurred he was engaged in installing a refrigerated beer box at a commercial establishment.

Prejean did not experience any pain immediately after the accident occurred. He assisted in directing traffic at the scene of the accident until the trooper arrived, and he informed the trooper that he had not been injured. He then returned to the job he was performing. He worked the rest of that day, and then made two service calls later that evening. He testified that he slept well that night, but that he experienced pain in his neck and some dizziness the next morning, and that he thereupon went to his family physician, Dr. Robert Kapsinow, for treatment. He was treated by several other doctors after that time.

The trial judge concluded that plaintiff was entitled to recover the aggregate sum of $25,470.82 from defendants. In his reasons for judgment he said:

I am convinced that Mr. Prejean has suffered and is continuing to suffer from the physical injuries complained of, despite the fact that he continues to engage in his refrigeration repair business to a limited extent. His income has decreased and he complains of his inability to lift heavy objects and work long hours. He also complains that his household chores, such as lawncutting, etc., are limited. For his pain and suffering, I feel an award of $20,000.00 is fair and reasonable. Mr. Prejean incurred medical expenses in the amount of $5,386.20 plus $84.62 for travel and meals, making a total of $5,470.82 as special damages. This makes an aggregate of $25,470.82 which is allowed.”

Plaintiff does not complain about the amount which he feels was awarded as general damages for pain and suffering, and neither does he seek to change the amount awarded for medical expenses. He contends, however, that the trial court erred in failing to award (1) an additional amount as loss of wages, and (2) the additional sum of $151.31 as property damages.

We have decided that the award of $20,000.00 made by the trial judge was intended to cover plaintiff’s loss of wages and the property damages suffered by him, as well as the general damages due him for pain and suffering. Several circumstances compel us to reach that conclusion.

First, we think that intent is indicated by the wording of the trial court’s reasons for judgment. As already shown, the trial judge stated in his reasons for judgment that “His (plaintiff’s) income has decreased .,” and then almost immediately thereafter he concluded that an award of $20,000.00 would be fair and reasonable. We do believe that the trial court overlooked or forgot about plaintiff’s loss of wages immediately after mentioning it in his reasons for judgment. It is more probable, we think, that he inadvertently used the words “pain and suffering,” instead of a more inclusive phrase, in making that award.

Secondly, the trial judge denied plaintiff’s motion for a new trial and in so doing we think he made it clear that he intended for the original award to include loss of wages.

The case was tried before Judge Charles T. Everett, and it was that judge who assigned the above quoted reasons for judgment and who then rendered and signed the judgment which is now before us on appeal. After that judgment was rendered plaintiff filed a motion for new trial, in which he specifically alleged as his principal ground for that relief that “the Court inadvertently failed to award plaintiff an amount for the loss of wages sustained by him as a result of the accident. . ■ . . ” Judge Everett denied the motion for a new trial, and he assigned written reasons for that denial. In those reasons he said:

“I have reconsidered the pleadings, the evidence, prior written reasons for judgment and argument of Counsel and feel that the motion for a new trial is not well founded.
“Accordingly, the motion for a new trial is denied.”

Plaintiff later filed an “Amended Motion For A New Trial, Or Alternatively, A Motion For A Partial New Trial On Behalf of Plaintiff.” In that amended pleading he alleges as an additional ground for the relief sought that he had discovered new evidence pertaining to plaintiff’s disability “resulting in loss of income in the past and future loss of income to be sustained by plaintiff.”

The amended motion for a new trial came up before Judge Henry J. Dauterive, Jr. Defendants objected to the amended motion, arguing that the original motion for a new trial had been filed and had been denied, and that plaintiff is precluded from filing another such motion. That objection was overruled, and a formal hearing or trial was held on the amended motion. Plaintiff introduced evidence at that hearing. Judge Dauterive then rendered judgment denying the amended motion for a new trial, and he assigned the following written reasons for doing so:

“I have considered the pleadings, the evidence, prior written reasons for judgment, the denial of the original motion for a new trial, and argument of counsel and feel that the amended motion for a new trial is not well founded.
“Accordingly, the amended motion for a new trial is denied.”

Both of the above motions were grounded largely on plaintiff’s claim that the trial judge had erred in failing to award him a substantial sum of money as loss of wages, and both motions were denied by the trial court. We believe that the denial of those two motions for a new trial constituted a clear holding by the trial court that the award which was made originally, that is, the award of $20,000.00, was intended to cover loss of wages.

Third, a review of the evidence convinces us that plaintiff failed to show that he sustained any loss of wages at all, either past or future.

Finally, we think the award of $20,-000.00 made by the trial court is excessive if it should be considered as having been made solely to compensate plaintiff for pain and suffering. We cannot reduce the award since defendants did not appeal or answer the appeal. It is appropriate for us to consider the nature of the injuries sustained by plaintiff, however, to assist us in determining whether the award made by the trial court was intended to cover loss of wages.

Plaintiff testified that he is disabled because his neck “aches all the time,” and because of “extreme nervousness and depression and tension.” He stated that before surgery was performed in March, 1975, he had pain and numbness on the right side of his body, but that “the major part of the pain has gone away.” He stated that as of the date of the trial, “I have some pain in the back of my neck and arm,” and that “I have not been able to do all the work that I did before.” He explained that since the accident he has not been able to lift heavy objects, that is, objects weighing from 150 to 600 pounds, and that because of that disability he has had to take only smaller jobs in his work. He stated also that he has pain across the small of his back and weakness in his hips when he does any stooping, but the medical evidence shows that this condition of his back was due to a congenital deformity and that it was not caused or aggravated by the accident.

The evidence establishes, we think, that plaintiff has never been disabled from performing at least most of his work because of injuries he sustained in the accident, except for two brief periods of time when he was hospitalized. The medical evidence shows that the disability which he may have is not permanent, and that he should recover fully within a few weeks or months after the trial.

Dr. Kapsinow treated plaintiff periodically from the date of the accident until September 30, 1975. The treatment he administered, however, was conservative and was primarily for nervousness and for degenerative arthritis, both of which conditions existed before the accident occurred. Prejean also was treated by several other doctors, one of whom was Dr. John Jackson, a neurological surgeon, who performed an anteri- or cervical fusion at two disc levels in March, 1975, more than one year after the accident occurred. Plaintiff was hospitalized for eight or ten days in connection with that surgery.

Plaintiff was 43 years of age when the accident occurred. He was and for several years had been a very nervous person. He, in fact, had had a “mild nervous breakdown” shortly before the accident. He also has suffered for many years from emphysema, degenerative arthritis and spondylosis. Prior to and at the time of the accident he was taking tranquilizers for his nervousness and cortisone for his arthritis. Dr. Kapsi-now, plaintiffs family physician, testified that he had treated plaintiff since 1939, and that he treated him at least 15 times within one year before the accident. On December 13, 1973, less than one month before the accident, he treated Prejean for complaints of pain in both shoulders, both elbows and both knees, with swelling in the elbow joints. And, on January 3, 1974, five days before the accident, the doctor treated plaintiff again when he got very dizzy and passed out, probably because of the Vestaril (a tranquilizer) and Selestone (a cortisone preparation) he was taking at the time.

Shortly before the accident occurred, Pre-jean separated from his first wife, obtained a divorce and then remarried. His mother died in early 1973, and during the same year his father sustained an accident which caused him to be hospitalized. Also, plaintiff had to be hospitalized in the fall of 1975 for treatment of his emphysema. A psychiatrist who treated plaintiff indicated that the mental stress brought about by the above events, none of which had anything to do with the automobile accident, have tended to depress plaintiff and make him more nervous.

It seems to us that the disability which plaintiff claims to have now is due largely, if not entirely, to his nervousness and tension, degenerative arthritis, emphysema and congenital spondylosis. None of those conditions were caused or aggravated by the accident. In our view, the award made by the trial court was more than adequate to compensate him for his general damages and for his alleged loss of wages.

We turn now to plaintiff’s claim that he is entitled to recover the additional sum of $151.31 to compensate him for damages to his truck. We note, however, that one of the grounds alleged by plaintiff as the basis for his motion for a new trial was that “the Court inadvertently failed to award plaintiff the amount of $151.31 representing the amount of property damages sustained by his vehicle.” The trial judge denied that motion for a new trial, indicating, we think, that the award which had been made was intended to cover that item. For the reasons already assigned, we find that the award made by the trial court included the property damages sustained by plaintiff.

Plaintiff contends, finally, that the trial court erred in denying his amended motion for a new trial, which was based on allegations of newly discovered evidence. We find no merit to that argument. Assuming that the newly discovered evidence is admissible and would establish the facts alleged, and considering it in a light most favorable to plaintiff, we have decided that it would not alter the results we have reached.

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

AFFIRMED.

DOMENGEAUX, J., dissents in part and assigns reasons.

DOMENGEAUX, Judge,

dissenting in part.

PROPERTY DAMAGE TO PLAINTIFF’S VEHICLE

At the trial on the merits plaintiff unquestionably proved that the accident in question caused damages to his vehicle in the amount of $151.31. This evidence was uncontradicted by the defendant, and I would find that the trial judge erred by failing to include an award for that amount in his judgment. Accordingly, plaintiff is entitled to recover the amount of $151.31 representing property damage to his auto.

LOST INCOME

Plaintiff complains that his income has been severely diminished as a result of the aforementioned accident. Mr. Prejean’s income tax returns for the years 1969 through 1974 reveal the following figures:

YEAR GROSS RECEIPTS (Sales) NET PROFIT
1969 $ 29,233.97 $ 9,201.29
1970 $ 33,581.96 $10,377.39
1971 $ 27,454.11 $ 7,293.15
1972 $ 25,839.96 $ 7,093.25
1973 $ 25,744.87 $ 7,643.08
1974 $ 23.998.69 $ 3.680.89
$165,853.56 $45,289.05

I note that plaintiff’s gross sales in 1974 were remarkably similar to the years preceding. Since the accident occurred on January 8, 1974, I am of the opinion that Mr. Prejean’s entire business year (1974) should have been affected thereby. While plaintiff’s net income was markedly decreased in 1974, a study of his income tax returns indicates the causation thereof to be an unusually high number of business deductions. The return shows that the salaries paid in 1974 to employees were only half those paid in the preceding year. The record further reveals that the primary reason for plaintiff’s decreased net income in 1974 was a substantial increase in the cost of goods sold. Obviously this factor bears no causal relation to the accident. Therefore, the evidence does not support plaintiff’s contention that his income in the year 1974 was decreased as a result of his accident.

Plaintiff underwent the necessary disc operation on March 26, 1975. The operating physician was of the opinion that plaintiff should have been able to return to heavy manual labor approximately eight months thereafter. Thus I would find that plaintiff’s earning capacity was diminished as a result of the operation during a portion of the year 1975.

The trial judge specifically found that the accident had indeed decreased plaintiff’s earning capacity but granted an award of $20,000.00 for only “his pain and suffering I would find that this sum was limited to those general damages (pain and suffering).

Since the trial judge unequivocally stated that plaintiffs earning capacity was diminished, and such a finding is strongly supported by the record, I feel that the judge, a quo, erred by failing to include compensation for lost earnings in the judgment.

I take note of the Supreme Court’s recent opinion in the case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), wherein certain sanctions and restrictions were placed upon appellate modifications of quantum. I feel, however, that our decision in the instant litigation does not involve a situation contemplated by Coco. Rather, in the case at hand, no award was made by the district court for items of damages clearly and strongly proved by plaintiff. If the trial judge inadvertently omitted those items from his judgment, we should correct that oversight. If, on the other hand, the district judge found that plaintiff was not entitled to recovery for his property damage and lost income, I am of the opinion that such a finding constitutes manifest error, and we should likewise remedy that defect.

Although Mr. Prejean has been unable to specify the exact amount of income lost due to the accident, his claim therefor should not be rejected for that reason alone. See Lestrick v. Najolia, 297 So.2d 770 (La.App. 3rd Cir. 1974); Melancon v. I. M. C. Drilling Mud, 282 So.2d 532 (La.App. 1st Cir. 1973), writ denied, 283 So.2d 769, 771 (La.); Roshong v. Travelers Insurance Company, 281 So.2d 785 (La.App. 3rd Cir. 1973), and Peoples Moss Gin Co., Inc. v. Jenkins, 270 So.2d 285 (La.App. 3rd Cir. 1972).

My calculations based upon the record indicate that plaintiff’s average annual net profit from his business for the years 1969 through 1974 was $7,548.18. Since Mr. Pre-jean was incapacitated for a period of approximately eight months as a result of his operation, I am of the opinion that he is entitled to recover approximately % of the aforementioned figure ($7,548.18 X 67% = $5,057.30) as compensation for his diminished earning capacity during that period. However, plaintiff admittedly earned the sum of $1,130.30 during the first eight months of 1975, and any award should be credited for that amount. Accordingly, plaintiff should be awarded the sum of $3,927.00 ($5,057.30 minus $1,130.30) as compensation for lost income during the eight months in which he was incapacitated as a result of the disc operation precipitated by' the accident.

For these reasons I feel that the judgment of the district court should be amended so as to award plaintiff the additional sum of $4,078.31.


source: Caselaw Access Project

author: HOOD, Judge.

license: Public Domain

text:
    Carl Wayne FONTENOT et ux., Plaintiffs-Appellants, v. STATE FARM MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5834.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      Jules R. Ashlock, Ville Platte, for plaintiffs-appellants.
    Richard W. Vidrine and J. William Pu-cheu, of Fusilier, Pucheu & Soileau, Ville Platte, Gist, Methvin & Trimble, by DeWitt T. Methvin Jr., Alexandria, Dubuisson, Brinkhaus & Duzat by William A. Brink-haus, Opelousas, for defendants-appellees.
    Before HOOD, CULPEPPER and DO-MENGEAUX, JJ.
   HOOD, Judge.

Mr. and Mrs. Carl Wayne Fontenot claim damages for personal injuries sustained by them as a result of a motor vehicle collision. The defendants are the Evangeline Parish Police Jury, Mrs. Marsaleet Jack and the latter’s insurer, State Farm Mutual Automobile Insurance Company. Judgment was rendered by the trial court in favor of defendants. Plaintiffs appealed.

The issues presented are whether Mrs. Jack or the Police Jury were negligent, and if so, whether plaintiff Fontenot also was negligent.

A companion suit arising out of the same accident was instituted by Mr. and Mrs. Jack against Fontenot, his insurer and the Evangeline Parish Police Jury, and that action was consolidated for trial with the instant suit. Judgment was rendered in that case in favor of Mrs. Jack against Fontenot and his insurer. The judgment rendered in that companion suit, however, is not before us on this appeal.

The collision involved here occurred about 6:45 A.M. on October 10, 1975, at the junction of Progress Road and Lithcote Road, in Evangeline Parish. Mr. Fontenot was driving his car east on Progress, and Mrs. Jack was driving her car south on Lithcote. While both parties were attempting to traverse that intersection, the front of the Jack automobile struck the left side of the Fontenot vehicle.

Lithcote Road was a heavily travelled, two-lane, blacktopped thoroughfare running north and south. It had been used generally by the public for many years. Progress Road was a new, blacktopped, two-lane thoroughfare which ran east and west. It was still under construction when the accident occurred. Progress formed a “T” intersection with the west side of Lith-cote, the latter forming the top of the “T” and Progress Road forming the leg of it.

Several months prior to the time this accident occurred, the defendant Police Jury constructed a roadbed from Lithcote Road to Louisiana Highway 29, the latter being a heavily travelled highway located a short distance west of Lithcote. The Louisiana Department of Highways then blacktopped that roadbed, and the new route is called Progress (or Co-op) Road. All of the blacktopping had been completed by the time the accident occurred, except for a small part of it where the new road crossed a railroad track. The Police Jury had not accepted the newly constructed road, however, and it had not opened it for public traffic by that time. No stop signs or other traffic signs or control devices had been erected or installed at any of the intersections on Progress Road at that time. Barricades had been set up at both ends of that road, however, which warned motorists not to use it.

After the blacktopping had been substantially completed, and before this accident occurred, motorists occasionally moved the barricades and used the new road. The members of the Police Jury became aware of that fact, and in order to prevent or deter motorists from using the uncompleted road some of the jurors and their employees patrolled the road every day, or every other day, and on those patrols they replaced every barricade which had been removed. Progress Road was formally accepted by the Police Jury on October 13, 1975, three days after the above accident occurred, and at that time a stop sign was erected at the intersection of Progress and Lithcote, warning motorists travelling east on Progress to stop before entering the intersection.

Both of the drivers involved here were familiar with the roads or streets in that area. Mrs. Jack travelled over Lithcote Road almost daily in going to and from her place of employment. Fontenot lived in that vicinity and his mother lived on Lith-cote Road, a short distance north of the intersection where the collision occurred.

Shortly before the accident occurred Fon-tenot entered Progress Road at its intersection with Highway 29, and he began to drive east on that road. His wife was riding in the car with him. Their purpose was to travel east on Progress until they reached Lithcote Road, and then turn left on Lithcote and go to the home of Fonten-ot’s mother. The weather was foggy and visibility was poor. Fontenot was driving about 30 miles per hour and his headlights were burning when he reached the intersection of Progress and Lithcote. He concedes that he did not see the intersection or the Jack automobile until the cars collided, and that he thus did not apply his brakes or make an effort to avoid the accident. He made no attempt to turn to his left on Lithcote, since he did not see that street, and it is apparent that if the collision had not occurred he would have crossed Lith-cote and would have wound up on a narrow unimproved dirt lane which continued east from that “T” intersection.

Fontenot admitted that he knew that Progress Road was being constructed, and that on previous occasions he had seen barricades at the intersection of Highway 29 and Progress Road which blocked him from travelling on Progress. He, in fact, saw barricades on that road two or three days before the accident occurred. He stated that he had never travelled over the new road before the date of the accident, except that two days before that time he drove a short distance on it. He had driven through the “T” intersection involved here many times while travelling on Lithcote, but he had never entered that intersection from Progress Road before the morning of the accident. He testified that he did not see a barricade on Progress Road that morning, although he admits that there was a heavy fog and that visibility was bad.

Mrs. Jack was driving at a speed of about 30 miles per hour as she approached the intersection. She knew that Progress Road had not been opened for traffic. She observed the Fontenot car as it entered the intersection immediately in front of her, and she thereupon immediately applied her brakes but was unable to stop before the collision occurred. Her car left 30 feet of skid marks prior to the time it collided with the Fontenot vehicle.

The trial judge obviously concluded that Mrs. Jack was free from negligence, since he rejected the demands of Mr. and Mrs. Fontenot against her in this suit, and he rendered judgment in favor of Mrs. Jack against Fontenot and his insurer in the companion suit. He also found that “the Police Jury did all within its power to keep the travelling public off of Progress Road until such time as it was officially accepted and opened.” He concluded that the Police Jury did not violate any duty it owed to the travelling public, that it was free from negligence, and that it thus was not liable in damages to the Fontenots.

We agree with the conclusions which were reached by the trial court.

Plaintiffs argue that the accident happened at an uncontrolled intersection, since there were no stop signs or other warning devices at that junction and no ordinance had been adopted declaring either street to be the right-of-way thoroughfare. They contend that since the crossing was uncontrolled, Fontenot had the right-of-way under LSA-R.S. 32:121, because the Jack automobile approached the intersection from his left. We find no merit to that argument. Progress Road had not been opened for public use, and its junction with Lithcote thus could not be considered as being an intersection within the meaning of LSA-R.S. 32:121. Mrs. Jack had the right to assume that no vehicles would use that road, and she was not negligent in failing to see the Fontenot car before it entered the intersection in front of her.

We find no merit to plaintiffs’ further argument that the Fontenot automobile pre-empted the intersection. The evidence convinces us that the two vehicles entered the crossing at substantially the same time.

Plaintiffs argue, finally, that the Police Jury was negligent in maintaining a dangerous intersection. They point out that the elevation of Progress Road was slightly higher than that of Lithcote, that that difference in elevation made it difficult for a motorist travelling east on Progress to see the intersection “under adverse conditions,” and that the Police Jury was negligent in not providing some type of warning for such motorists. We have already noted that Progress Road had not been opened for public use, and that the Police Jury had placed barricades on that road warning motorists, including Fontenot, not to use that road at all. We thus find no merit to this final argument of plaintiffs.

Since we have found that there was no negligence on the part of Mrs. Jack or the Police Jury, it is unnecessary for us to determine whether Fontenot was guilty of contributory negligence.

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

AFFIRMED.


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff and Appellee, v. Gordon A. SKYEAGLE, Defendant and Appellant.
    No. 5842.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused July 1, 1977.

      Plaisanee & Franques by A. J. Plaisance, Lafayette, for defendant-appellant.
    Frances M. Gilfoil, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

The appellant, Gordon A. Sky Eagle, was deprived of his driving privileges as a result of a proceeding conducted under the provisions of Louisiana R.S. 32:1471 et seq. known and entitled as Motor Vehicle Habitual Offender Law. The proceeding was initiated by petition in the district court for Lafayette Parish on the civil side of the court and the proceedings were conducted as a civil matter. Defendant-appellant, Sky Eagle, has appealed from the district court judgment which found that he was an habitual offender with respect to offenses growing out of the operation of motor vehicles and which ordered him not to operate a motor vehicle on the highways of this state for a period of five years and until various conditions were met. Sky Eagle was granted a suspensive appeal to this Court of Appeal.

The principal question to be decided in this appeal is whether proceedings under the Motor Vehicle Habitual Offender Law may be conducted in a district court of this state under its civil jurisdiction inasmuch as the statute, specifically R.S. 32:1474, directs that the district attorney file the petition to initiate the proceeding “in the criminal district court for the parish wherein such person resides.” In addition to this principal issue, defendant-appellant urges other errors were committed by the trial court.

We address ourselves to this jurisdictional question first. If the district court lacked jurisdiction, the other questions need not be considered.

The parties to this matter are the State of Louisiana, appearing through the District Attorney for the Fifteenth Judicial District of Louisiana, and defendant-appellant, Gordon A. Sky Eagle. They agree that the petition in this matter was filed on the civil docket of the Fifteenth Judicial District Court for Lafayette Parish, docket number 66,169. The jurisdictional question was raised by an exception of no cause or right of action. It was overruled by the trial court before proceeding to the merits of the case.

JURISDICTION OF THE DISTRICT COURT

R.S. 32:1474 directs that petitions filed under the Motor Vehicle Habitual Offender Law be filed in the criminal district court. The legislative enactment of this law provided for certain procedures clearly civil in nature. None are criminal in nature. Three appellate courts of this state, including the Louisiana Supreme Court have held that the proceedings conducted under this law as in the instant case are civil in nature. State v. Page, 332 So.2d 427 (La.Sup.Ct.1976); State v. Free, 321 So.2d 50 (La.App. 3rd Cir. 1975), writs refused, 325 So.2d 272 (La.1976) and State v. Love, 312 So.2d 675 (La.App. 2nd Cir. 1975), writs refused, 317 So.2d 627 (La.1975).

The jurisdictional issue here arises out of the fact that in State v. Page, supra, the Louisiana Supreme Court held that the Legislature could not constitutionally grant jurisdiction to conduct civil hearings under this act to the Criminal District Court for Orleans Parish. We must consider the other side of the coin: Can a district court of the State, possessing both criminal and civil jurisdiction, entertain jurisdiction of cases under this particular habitual offender law on its civil side, in face of the fact that the Legislature specifically directed that proceedings under it be instituted by the district attorney through filing a petition “in the criminal district court” of the defendant’s domicile? R.S. 32:1473. We think the district court for the Fifteenth Judicial District can entertain jurisdiction of such cases. This particular district court, like most district courts of the state (but unlike the Criminal District Court for Orleans Parish), is a court of general jurisdiction. Moreover, the legislative act creating the law in question contained a severability clause.

If the qualifying word “criminal” which precedes the words “district court” in R.S. 32:1474 be deemed the sole portion of the statute which raises jurisdictional question from a constitutional standpoint, and the word “criminal” may be severed out, a viable statute remains. After all, the Fifteenth Judicial District Court is not a court of divided jurisdiction; that is, divided into separate courts of limited jurisdiction. It has general jurisdiction in both civil and criminal matters. Section 35, Article VII, Louisiana Constitution of 1921.

It is important in this case to consider the difference in constitutional status and jurisdiction of district courts such as the trial court in this case and the Criminal District Court for Orleans Parish which was involved in State v. Page, supra. In writing for the Supreme Court in the Page case, Mr. Justice Calogero looked to the 1921 constitution because the Motor Vehicle Habitual Offender Law was enacted before the Louisiana Constitution of 1974. All we view the Page case to say is simply that, inasmuch as the Criminal District Court for Orleans Parish had no civil jurisdiction under the 1921 constitution, the legislature was powerless to grant it civil jurisdiction unless it did so under Section 87 of Article VII of the 1921 constitution which permitted it to do so by a two-thirds vote of each House of the Legislature which it did not do in this situation.

Reference to the Louisiana Constitution of 1921 discloses that the State, the Parish of Orleans excepted, is divided into judicial districts composed of a parish or several parishes. The Fifteenth Judicial District is made up of Lafayette, Acadia and Vermillion Parishes. Section 31, Article VII. The Civil District Court for the Parish of Orleans is created by Section 80 and its jurisdiction is set forth in Section 81. The Criminal District Court for the Parish of Orleans is created by Section 82 and its jurisdiction is set forth in Section 83. The jurisdiction in the judicial districts established by Article 31 are granted dual jurisdiction, civil and criminal, in Section 35 of Article VII of the 1921 Constitution. Hence, the constitutional problem inherent in State v. Page, supra, does not come into play in the district court in Lafayette Parish. In district courts, as is well known, the district judges pass back and forth from criminal court to civil court while operating from the same courtroom, while sitting on the same bench and perhaps using the same bailiff and court reporter. Also, as is well known, the parishes, other than Orleans, have a single Clerk of Court who functions for both civil and criminal matters. Section 66, Article VII of the 1921 Constitution.

After a consideration of the holding of State v. Page, supra, and the differences between District Courts and the Criminal District Court for the Parish of Orleans, we hold that the Fifteenth Judicial District Court for the Parish of Lafayette has jurisdiction of proceedings under the Louisiana Motor Vehicle Habitual Offender Law. We so conclude by holding that the word “criminal” may be regarded as the only unconstitutional portion of R.S. 32:1474, that it is severable from it, and the statute may be saved. We are abjured to find statutes consitutional if possible and to give effect to legislative acts if possible. In “district courts” the word “criminal” is not so interrelated and interconnected with the rest of the statute that it cannot be separated without destroying the intention manifested by the legislature in passing the act and the unconstitutionality of the severed word cannot affect the rest of the statute. For a discussion of these principles and citations, see Mims v. West Baton Rouge Parish School Board, 315 So.2d 349 (La.App. 1st Cir. 1975).

EXCEPTION OF RES JUDICATA

Prior to the filing of the petition in this case and prior to the handing down of the decision in State v. Page, supra, the District Attorney for Lafayette Parish had filed a petition under the same law in question here on the criminal docket in Lafayette Parish, Criminal Docket Number 37,806. After the Page case was decided, and before the Sky Eagle case on the criminal docket was heard, the District Attorney refiled the petition on the civil docket, and thereafter moved to dismiss the case on the criminal docket which was done.

As we understand defendant-appellant’s exception of res judicata, it is as follows. Dismissal of the suit on the criminal docket, which alleged the same matters as alleged in the suit later filed on the civil docket, put at rest all these issues between the State and Gordon F. Sky Eagle. On behalf of Sky Eagle it is urged that his permission to dismiss the suit on the criminal docket was not obtained and, therefore, under Article 1671 of the Louisiana Code of Civil Procedure, the dismissal must be deemed to have been with prejudice. We do not consider that this exception has merit. Article 1671 of the Louisiana Code of Civil Procedure provides that before a defendant makes a general appearance, the plaintiff may dismiss the suit without prejudice by paying the costs. Here, Sky Eagle had made a general appearance in the suit on the criminal docket. Therefore, the applicable part of Article 1671 is the last sentence which reads: “If the application [for dismissal] is made after a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice.” (Emphasis supplied) Under this provision it is discretionary with the court as to whether the dismissal shall be with or without prejudice. Harper v. Celotex Corporation, 183 So.2d 350 (La. App. 4th Cir. 1966), application denied, 249 La. 123, 185 So.2d 530 (1966). See also comment (b) under Article 1671. There is no evidence that the earlier case was dismissed with prejudice.

Actually the minutes of the court in connection with criminal docket number 37,806 show that the case was nolle prossed. In overruling the exception of res judicata the trial judge ruled the dismissal of the “original suit filed in the Criminal section of this court was actually not passed upon.” In any event, we find no merit to the exception, and there existed grounds for overruling it.

EXCEPTION OF PRESCRIPTION

A further exception filed on behalf of defendant-appellant, Sky Eagle, is that of prescription. Under R.S. 32:1474 the district attorney is directed to file the petition provided for within ten days of receipt by him of an abstract prepared by the Department of Public Safety certifying the offenders conviction record. We regard this merely as a directory provision rather than a statute providing a prescriptive period for filing suits under the Motor Vehicle Habitual Offender Law. The trial court ruled that the original filing on the criminal docket (which was within ten days of receipt of the conviction record) had the effect of interrupting prescription and the suit on the criminal docket was not dismissed until after the suit on the civil docket was filed. As we view the ten-day requirement for filing merely as directory language, we consider the exception of prescription has no merit.

ALLEGED ERROR IN GRANTING RELIEF BEYOND THAT PRAYED FOR

Defendant-appellant contends that the show cause order signed by a judge of the district court was broader than the relief prayed for and that the judgment rendered was beyond the relief prayed for. There is no substance to this claim.

ALLEGED FAILURE OF STATE TO PROVE IDENTITY OF DEFENDANT-APPELLANT WITH REFERENCE TO EARLIER CONVICTIONS

In the supplemental brief filed on behalf of defendant-appellant Specification of Error IV is set forth as follows:

IV. The trial court’s failure to require the State to prove by a preponderance of the evidence that Appellant herein was the same Gordon A. Sky Eagle who had been convicted of earlier offenses that fell within the provisions of the Habitual Offender Act of the State of Louisiana.

The transcript of the testimony discloses that objection to the certified extracts of prior convictions was made by counsel for Mr. Sky Eagle. He also objected to certified copies of minutes from the three courts where he had pleaded guilty to driving offenses. The reasons for the objections are numerous but we fail to find that counsel ever articulated the precise objection mentioned above. On the other hand, at page 33 of the transcript we find that counsel entered a stipulation. The stipulation was apparently made for defendant-appellant’s benefit. It stipulated that with reference to his three guilty pleas in the various prosecutions upon which the petition was based, the conviction in the City Court of Sulphur, Louisiana was without representation of counsel; the conviction in the City Court of Lafayette, Louisiana was with representation of counsel and his conviction in the Twenty-Second Judicial District Court for St. Tammany Parish was without representation of counsel. Inasmuch as this stipulation was entered into without any reservation we construe it is an admission that the defendant-appellant was the same person as the Gordon A. Sky Eagle involved in those convictions. Hence, any bearing which State v. Curtis, 338 So.2d 662 (La.Sup.Ct.1975), might have which he urges we consider, is immaterial. Moreover, the Curtis case involved an enhanced sentencing in a multiple offender matter. Here, we are not involved with sentencing or with penal matters, but with a civil proceeding in which driving privileges are curtailed for a specified period of years. Under State v. Love, supra, and State v. Free, supra, the sanction imposed in proceedings under R.S. 32:1471, et seq., the Motor Vehicle Habitual Offender Law, is not penal in nature.

OTHER SPECIFICATIONS OF ERROR

Diligent and resourceful counsel for defendant-appellant urges a number of other specifications of error raising questions of double jeopardy and general objections based upon the predicate that the nature of the proceeding in question is a criminal prosecution. It is urged that the judgment violates the holding of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). These questions were disposed of in State v. Love, supra, and State v. Free, supra. We see no need to reconsider them now.

For the reasons assigned we hold that the findings and judgment of the trial court was correct and we affirm that judgment.

AFFIRMED.

      . Although the caption of this suit reads “Skyeagle,” in the brief filed in his behalf the last name is given as “Sky Eagle”. In fact, he is so referred to in the original petition and his answer and other pleadings.

      . Act 697 of the Louisiana Legislature of 1972.

      . The statute does contain a penalty provision in R.S. 32:1480 for a violation of a judgment rendered pursuant to the civil proceeding, but it directs the district attorney to file appropriate criminal proceedings.

      . Section 3 of Act 697 of the Louisiana Legislature of 1972.

      . The conclusions of the Louisiana Supreme Court in State v. Page, supra, were stated as follows: “Inasmuch as the jurisdiction of the Criminal District Court was unchanged on the effective date of the 1974 Constitution, La. Const, art. V, § 32 (1974) and since the legislation here at issue was not re-enacted after January 1, 1975, (the effective date of the 1974 Constitution), the Criminal District Court today does not have jurisdiction over the civil revocation proceeding authorized by R.S. 32:1471 et seq.”

      . The provision of law involved was R.S. 15:529.1.


text:
    Ethel Matthews PARKER, Plaintiff and Appellant, v. Howard HANKS, Defendant and Appellee.
    No. 5844.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused June 8, 1977.

      Knight & Knight by William N. Knight, Jennings, for plaintiff and appellant.
    Marcantel & Cassidy by David E. Mar-cantel, Jennings, for defendant and appel-lee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

This is a personal injury action arising out of a dog-bite case and presents issues following in the wake of Holland v. Buckley, 305 So.2d 113 (La.Sup.Ct.1974). The principal issue to be decided is whether the victim herself was at fault in the context of the rule of Holland v. Buckley so as to bring her conduct within one of the “limited defenses” the Supreme Court has said “are available to absolve him (owner) of the presumption of fault created by the animal’s injuring another.”

Plaintiff is Ethel Matthews Parker and her suit is against Howard Hanks, keeper of a small fish market in Lake Arthur in Jefferson Davis Parish. After trial the court found for the defendant and rejected plaintiff’s demands at her costs. The trial court gave oral reasons for his judgment at the conclusion of the trial which were recorded. In his reasons the trial court stated that the weight of the testimony was in defendant’s favor. We interpret this to mean that fact findings which required resolution on the basis of a credibility evaluation were resolved in defendant’s favor. Plaintiff appealed from the ruling of the trial court.

While there are some disputed issues of fact, the one specification of error set forth in plaintiff’s brief is as follows:

SPECIFICATION OF ERROR
The trial court erred in concluding that the conduct of plaintiff in this dog-bite case amounted to that kind of fault which would exculpate defendant from liability under Civil Code Article 2321.

From the oral opinion of the trial court and the briefs of counsel we gather that there was no specific finding or holding that defendant Hanks was at fault; rather, it appears that the trial court found fault on the part of plaintiff herself which exculpated defendant from liability under the holding of Holland v. Buckley, supra, and the holding of the Court of Appeal for the First Circuit in Dotson v. Continental Insurance Company, 322 So.2d 284 (La.App. 1st Cir. 1975).

The facts of this case were as follows. Mr. Howard Hanks operated a small fish market dependent on his own supply. If he caught fish, he opened his market. If he had no fish to sell, he simply closed it. He also did some trapping and a pile of furs was located somewhere in a yard or area between the fish market and the back door of defendant’s house. The layout is not clear from the record. There is agreement, however, that the market faced a street and a driveway ran beside the market, and the nearest part of the Hanks’ house to the fish market was the rear of the house itself. The door of the house nearest the fish market was the kitchen door. Plaintiff testified the house was on the opposite side of the driveway from the fish market.

At some point in the area near the rear or kitchen portion of the house, plaintiff had a Labrador Retriever weighing about forty pounds staked out on a chain. Near the pile of furs was a sign which read “Beware of the Dog.” Mrs. Parker admitted she was “vaguely aware” that plaintiff kept a dog in the area. She had seen the dog on a chain in the furthermost corner of the yard from the house. She had traded with plaintiff on previous occasions. Usually, she drove into the driveway. On this occasion, however, she parked on the street. The time was 5:00 P.M. or after. Finding the fish market closed, Mrs. Parker decided to go to the Hanks’ home for the purpose of asking if fish were available. She had never done this before, and there is no evidence that customers of the fish market were in the habit of going to the house. She stated she could hear voices in the Hanks’ kitchen. She proceeded up the driveway on foot and mounted the steps leading to the kitchen door. The chain to which the dog was fixed was long enough to extend inside this door so as to permit it to come inside. At the time Mrs. Parker came to the kitchen door the dog was inside beside the door with his chain stretched underneath leading outside to his stake. Inside the kitchen were defendant, Howard Hanks, together with his wife and son, Nelson Hanks. From this point on, the parties and witnesses are in disagreement as to what occurred.

Plaintiff contends that she knocked on the kitchen door and the dog pushed the screen door open and bit her on the arm. Then the chain became wrapped around her legs, and the dog proceeded to gnaw on her hip until one of the family called the dog off. It is plaintiffs position that she was outside the house and the dog came out after her. She stated “well I wasn’t even looking at the door, you know, you just knock and you are looking at the wall, sort of, and immediately the door just burst open and there was the dog.”

As we understand defendant’s position, he does not contend Mrs. Parker actually got inside the kitchen. However, Mr. and Mrs. Hanks and their son, Nelson Hanks, testified there was an outer screen door and an inner wooden door, both of which were closed. The wooden door opened inward with a push. As the Hanks were seated in their kitchen they did not hear the approach of Mrs. Parker up the driveway and did not hear any knock at the door. The Hanks immediately moved to pull the dog away from Mrs. Parker.

The trial court in his oral reasons noted that there was a controversy as to whether the inner door was closed or open. He concluded it was closed but not locked or fastened. He felt there was a possibility that the door was slightly ajar. The trial court then reasoned that this meant that Mrs. Parker must have pushed the “back door” open in some way. He found that the dog had not barked which he found difficult to understand on the ground that Labrador Retrievers are hunting dogs and ordinarily possess an acute sense of hearing. He found it difficult to apprehend how plaintiff could have gotten as close to the door as she did without the dog knowing it and sounding the alarm. The trial court concluded that a preponderance of the evidence established that the dog was startled. He stated that although Labrador Retrievers are not known to be vicious, it reacted in this case when it was startled, as it was trained to act, and attacked.

We find the record supports the trial court’s findings of fact and there is no manifest error in his finding. We also find no error in his application of law to the facts.

Although the trial court did not in so many words hold that defendant was strictly liable, it is obvious that he did. He noted that Holland v. Buckley, supra, had discarded, and overruled, the negligence approach to dog-bite cases in which, in its most burdensome form, required showing a propensity of the animal to inflict harm and knowledge of the owner of such propensity. (The so-called “first bite free” rule.) He recognized that this decision had given a new interpretation to the language of Article 2321 of the Louisiana Civil Code which provides in part that: “The owner of an animal is answerable for the damage he has caused * * In his oral reasons the trial judge stated:

That the correct interpretation of 2321 is as follows: “When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability and an exception to or in addition to any ground of recovery on the basis of negligence.” Article 2321. “The owner may exculpate himself from such presumed fault only by showing that harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.”

The trial court then proceeded to determine whether or not the plaintiff was at fault, relying heavily on the case of Dotson v. Continental Insurance Company, supra, in which the Louisiana Supreme Court denied writs on January 30, 1976. In conclusion, the trial court remarked as follows:

[The plaintiff] went to the place of business and saw it was closed. It was then five (5:00) o’clock or thereafter and I suppose she thought “Well, maybe they’ve already closed for the day: and she went on to get the fish or to inquire if there was fish. So, the Court cannot escape the fact that if this were not fault of the victim, Mrs. Parker, then at least she was contributorily negligent in knocking at the door and not seeing that the chain was there. She knew and testified that there was a dog on the premises. She knew that there was a sign that said “Beware of the Dog”. There was no reason for her to think that the dog would attack her. She didn’t even see the dog until the dog did attack her.
The Court cannot escape the fact that the Dotson case places some responsibility on the victim and the Court feels that that is true in this case.

PLAINTIFF’S LEGAL POSITION

Plaintiff acknowledges that fault without negligence cases such as Holland v. Buckley, supra, and Loescher v. Parr, 324 So.2d 441 (La.Sup.Ct.1975) have recognized that the party presumptively at fault may be absolved of responsibility by rebutting the presumption. Plaintiff also recognizes that one way an animal owner (or owner of a thing as in Loescher v. Parr) may absolve himself is by showing that the cause of the harm was the fault of the victim. Plaintiff urges that this concept of “victim’s fault” has not yet been interpreted but urges that it is the same as contributory negligence or assumption of risk which were rejected as a defense in strict liability cases in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).

We do not regard the Langlois case as a proper guide for determining fault of a victim in the context of such facts as face us here. Langlois was decided under Articles 2315 and 2316 of the Louisiana Civil Code. In ordinary negligence cases contributory negligence and assumption of risk are defenses which are thoroughly rooted in our law. In Langlois a fireman sustained injury from inhalation of gas in answering a call to assist two men trapped in a tank belonging to Delta Southern Tank Corporation. Gas was escaping from the plant of Allied Chemical Corporation and plaintiff, Langlois, was exposed to the gas. The gas was highly poisonous and the storage of the gas was considered ultra-hazardous. All parties, including the defendant, agreed that Allied was liable.

As organ of the Louisiana Supreme Court, Justice Barham discussed the nature of Allied’s liability for the sole purpose of considering the validity of the defenses raised by Allied which were contributory negligence and assumption of risk.

In the early part of the Langlois opinion it is stated that “the courts must still ascertain the nature of an action in order to determine the available defenses and the applicable prescription.”

Justice Barham pointed out that Article 2315 reads: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * *” and Article 2316 reads: “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” Justice Barham referred to fault as the key word in Article 2315, but he noted that, although it was given three qualities or categorized in three degrees in Article 3556(13), it was nowhere defined in the Civil Code.

After discussing the difference between the civilian and the common law approach to the determination of the kinds of activity of man which will require that liability be imposed upon him, Justice Barham discussed fault in general terms as follows at page 137 of the opinion:

Definitions of fault are actually indefinite generalities and usually not illuminating when applying the concept. Colin and Capitant have said that fault signifies that conduct which a man should not have engaged in — that is, that he has acted as he' should not have acted. 2 Colin et Capitant, Cours élémentaire de droit civil francais (8e éd.1935) § 190. Defining fault is a logomachy. Because of the difficulty in defining fault for all times and purposes and instead of defining fault by listing numerous activities which constitute fault (much as we enumerate the activities which constitute criminal conduct in our Criminal Code) our law has left this determination in the hands of the court. However, our lawmakers have provided us with numerous standards of fault in the Civil Code, in statutory law, and in ordinances. Fault is not limited to moral wrongs but encompasses many acts which are merely forbidden by law.

Ultimately, Justice Barham concluded for the court that the ultra-hazardous activity of the defendant imposed liability upon it for escaping gas without a showing of negligence. He said: “Here we find that proof that the gas escaped is sufficient, and proof of lack of negligence and lack of imprudence ' will not exculpate the defendant.” However, in the paragraph immediately preceding this quoted sentence he said: “The activities of man for which he may be liable without acting negligently are to be determined after a study of the law and customs, a balancing of claims and interests, a weighing of the risk and the gravity of harm, and a consideration of individual and societal rights and obligations.”

It is against the background of the pronouncements referred to above that we must consider the ultimate ruling of the defenses of contributory negligence in the Langlois cáse. Justice Barham stated that: “The defense of contributory negligence which is urged here presupposes original negligence on the part of the defendant. This case is not a case where negligence is an ingredient of fault, and contributory negligence is not a defense.” As we appreciate the opinion in Langlois, the Supreme Court did hold that the defense of assumption of risk was applicable but found that the plaintiff had not in fact assumed the risk. After through consideration of the Langlois decision, we do not regard it as holding that in every case of liability because of non-negligent fault on the part of the actor contributory negligence and assumption of risk are unavailable as defenses.

In any event, a much more cogent reason for rejecting Langlois as a guide for holding that victim-fault is not a defense in cases of injury inflicted by domestic animals is that Holland v. Buckley, supra, addresses itself to the issue specifically. It clearly provides that fault on the part of the victim will exculpate the owner. It remains, therefore, for us to determine whether the trial court committed manifest error in finding plaintiff was guilty of contributory negligence in causing the dog attack and whether her conduct as such is the kind of victim-fault contemplated in Holland v. Buckley, supra.

VICTIM-FAULT UNDER ARTICLE 2321 OF THE CIVIL CODE

In Justice Tate’s summary of the decision in Holland v. Buckley, supra, he stated the following:

We hold therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.

In reviewing the French authorities Justice Tate was considering the civilian authority for the basic concept of presumed fault on the part of the animal owner. However, in every instance the French writers included fault of the victim as one of the things which might be shown by the owner in order to escape the strict liability. In discussing the Louisiana case of Delisle v. Bourriague, 105 La. 77, 29 So. 731 (1901), which Justice Tate quoted for some length, he stated as follows:

In holding the owner liable, Delisle, discussed the present issue in these terms, 105 La. 84-85, 29 So. 734: “Article 2321 of the Louisiana Revised Civil Code (article 1385, Code Napoleon) is founded upon the presumption that the fault is chargeable to the owner of the animal that caused the damage, or to the person in whose use or under whose care it was at the time of the accident; and that presumption can be made to give way only in the presence of proof either of an unforeseen event or by the imprudence of the one inured . . (Emphasis supplied.)

We feel that the concept of fault of the victim in the context of cases falling under Article 2321 as interpreted by Holland v. Buckley, supra, should be given a commonsense application. The Delisle case indicated that imprudence on the part of the victim would be sufficient to bar recovery. Imprudence appears to us to be much the same as negligence. See Article 2316 of the Louisiana Civil Code. Whether fault of the victim in cases of this kind is the same as contributory negligence in fault based on negligence cases, remains to be fully developed. The trial court used the language, or terminology of, contributory negligence in holding that the owner had exculpated himself. Until the theoretical concept is worked out more precisely, we see no harm in so designating it. However, we see no need to so do. We simply hold in this case the deféndant, Hanks, is exculpated by what we consider to be the fault of the victim, Mrs. Parker. Our brothers of the First Circuit have come to a similar conclusion in Dotson v. Continental Insurance Company, supra, where the facts were not too far dissimilar from those here.

Our brothers of the Fourth Circuit have, recently considered the question in Babin v. Zurich Insurance Company, 336 So.2d 900 (La. App. 4th Cir., 1976), rehearing denied. There a 3V2 year old child was bitten by a dog after pulling the dog’s tail in the owner’s home. The majority appears to consider fault and contributory negligence as synonymous, but concluded that the child would be an “innocent victim” within the meaning of Holland v. Buckley, supra, because a child of tender years is incapable of appreciating the consequences of his action. Hence, the owner was held liable. Judge Stoulig dissented on the ground that fault in the context of Holland was not the same thing as negligence. However, he was of the view that, although the action of the 3V2 year old child “cannot be legally classified as contributory negligence, it does fall within the category ‘that the harm was caused by the fault of the victim’ thereby rebutting the statutory presumption of the owner’s fault and exonerating him from liability.” Consequently, it would appear that, had the child been old enough to appreciate the danger, the owner would have exculpated himself under either test.

Plaintiff-appellant has forcefully argued in this case that if negligence is out for the owner of the animal, contributory negligence should be out for the victim. We point out that an owner may still be held liable for the act of a vicious animal on the basis of negligence, and if the victim should be barred from recovery in a negligence dog-bite case, we see no reason why the same bar should not be applied in a case where the fault of the owner is non-negligent fault. Were it not so, under Holland v. Buckley, supra, it could be reasonably argued that the owner of a dog inside the owner’s home would be liable to a burglar or intruder. If fault of the victim is not given some reasonable and common-sense construction, such a result could conceivably result. While the opening portion of the opinion in the Holland case and other parts seemed to be concerned with innocent bystanders and dogs running loose, the full opinion appears to make no exceptions except those specifically referred to which includes fault of the victim.

. We are of the opinion that Mrs. Parker was at fault inasmuch as she approached the rear of the Hanks’ home unannounced, she knew a dog was customarily kept on a chain, the chain ran under the door she approached and, as the trial court found, she opened the door. Accordingly, we affirm the decision of the trial court and assess the costs of this appeal to the plaintiff-appellant.

AFFIRMED.

CULPEPPER and WATSON, JJ., concur in the result.


text:
    Vergie M. BOSWELL, Plaintiff-Appellant, v. LOUISIANA DEPARTMENT OF PUBLIC WELFARE, Defendant-Appellee.
    No. 5845.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Gravel, Roy & Burnes by T. Gerald Henderson, Alexandria, for plaintiff-appellant.
    Donald E. Puckett, Baton Rouge, for defendant-appellee.
    Before HOOD, FORET and HEARD, JJ.
   HOOD, Judge.

Mrs. Vergie M. Boswell and her husband, Barton Boswell, instituted this suit to recover damages for personal injuries sustained by Mrs. Boswell when she fell on premises occupied by defendant, Louisiana Department of Public Welfare. Judgment was rendered by the trial court in favor of defendant, and Mrs. Boswell appealed.

The determining issue presented, we think, is whether there was a foreign substance on the floor of defendant’s office which caused plaintiff to fall.

On February 7, 1968, Mrs. Boswell went to the office of the Louisiana Department of Public Welfare, in Leesville, to return a check which had been issued erroneously to her deceased father. After waiting a few minutes in the reception room, she was asked to accompany Mrs. Frances Serna, a welfare case worker, to an interview room. She thereupon got up from her chair in the reception room and began to accompany Mrs. Serna through a hallway of the building. While she was walking in the hallway she fell and sustained an injury to her knee. This suit was instituted to recover damages for that injury.

Mrs. Boswell contends that she slipped and fell on a liquid foreign substance on the floor of the hallway. She admits that she did not see any water or any other liquid or foreign substance on the floor, either before or after she fell. She testified, however, that she fell near a water fountain and a coke machine in the hallway, and that she noticed after her fall that her clothes were wet. In view of those circumstances, she reasoned that some water or a cold drink had spilled on the floor from the fountain or the coke machine, that defendant had negligently allowed it to remain there and that she had slipped on that foreign substance.

The testimony of the injured plaintiff is supported to some extent by that of Mrs. Lettie Johnson, who accompanied Mrs. Boswell to the welfare office that day. Mrs. Johnson was not in the building when the accident occurred, but she arrived at the scene shortly after plaintiff fell and while she was still lying on the floor. Mrs. Johnson testified that she did not see any water, liquid or foreign substance of any kind on the floor of the building, but that she got down on her knees beside Mrs. Boswell, laid her arm over plaintiff and noticed that her dress was damp “about her waist.” We attach some significance to the fact that Mrs. Johnson found no liquid or foreign substance of any kind on the floor of the hallway, even though she got down on her knees on the floor beside plaintiff within minutes after the accident occurred.

Mrs. Serna, who was with plaintiff when the accident occurred, testified that she covered Mrs. Boswell with a garment while she was lying on the floor and that she rode with plaintiff to the hospital, but that at no time did she feel or notice that plaintiff’s clothes were damp. Mrs. Serna and several other witnesses also testified that they found no liquid, and no foreign substance of any kind, on the floor of the hallway. One of those witnesses was in the reception room at the time of the accident for substantially the same reason Mrs. Boswell was there.

The evidence establishes that plaintiff was approximately ten or twelve feet from the water fountain and the coke machine when she fell. The accident occurred relatively early in- the morning, shortly after the office had been opened. Records kept in that office show that Mrs. Boswell was the thirteenth person who had come in that day. The office had been cleaned by the janitor after closing hours on the preceding day, and no one had used the water fountain or the coke machine that morning prior to the time plaintiff fell. Neither the fountain nor the coke machine had ever malfunctioned or given any trouble. The evidence shows, however, that even if the water fountain had been used that morning and water had flowed over the trough, neither of which incidents occurred, the water would have flowed toward the wall, away from the place where plaintiff fell, and thus would not have affected the area where the accident occurred.

The trial judge concluded that “the location of the fall was away from the water fountain and coke machine area,” and that “the plaintiffs have simply failed to prove their case.”

We conclude, as did the trial court, that the evidence fails to establish that there was any water, coke or foreign substance on the floor of defendant’s office at the time plaintiff fell. Having reached that conclusion, it is unnecessary for us to consider plaintiffs’ argument that defendant was negligent in having failed to discover and remove the alleged hazardous condition.

Our conclusion is that plaintiffs have failed to show negligence on the part of defendant, and that there is no error in the judgment rendered by the district court.

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

AFFIRMED.


author: CULPEPPER, Judge. WATSON, Judge,

text:
    Mrs. John B. ICKLONE, Plaintiff and Appellant-Appellee, v. TRAVELERS INDEMNITY COMPANY, Defendant and Appellant-Appellee.
    No. 5852.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused June 15, 1977.
    Woodley, Penet & Ranier by Robert W. Fenet, Lake Charles, for defendant and ap-pellee-appellant.
    Raleigh Newman, Lake Charles, for plaintiff and appellant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   CULPEPPER, Judge.

The plaintiff, Mrs. John B. Icklone, filed this suit against her homeowners insurer, Travelers Indemnity Company, for benefits due under the windstorm coverage of the policy. She contends the roof was damaged by a windstorm and that as a result water leaked into the dwelling and damaged the interior. Defendant contends the roof was not damaged by windstorm, but instead that it was an old roof and simply wore out. A jury awarded plaintiff $2,269.47 under the policy. The jury also awarded plaintiff penalties and attorney’s fees. Pursuant to a pretrial stipulation, the district judge fixed the amount of the attorney’s fees in the sum of $1,100. Plaintiff appealed, seeking an increase in attorney’s fees. Defendant also appealed, seeking reversal both as to the benefits awarded and the attorney’s fees.

The issues are: (1) Is there substantial evidence supporting the finding of fact by the jury that the roof was damaged by windstorm? (2) Does the evidence support the award of penalties and attorney’s fees?

The general facts are that the house was built in 1932 and purchased by plaintiff in 1944. After Hurricane Audrey in 1957, the house was reroofed entirely with asbestos shingles. In 1966 a coating of aluminum fiber was placed on the roof to prolong its life. In 1970 a portion of the roof was replaced.

Mrs. Icklone and her son and daughter testified that immediately prior to the windstorm in question on May 31, 1974, the roof was not leaking. Plaintiff’s contention that the windstorm damaged the roof is based on the following testimony: Mr. William L. Franks, a meteorologist with the National Weather Service in Lake Charles, testified that on the day in question there was a 2.2 inch rain and at least 2 funnel clouds were sighted in the area, indicating tornadoes. Plaintiff testified that she was in Crowley and heard of the tornadoes near Lake Charles and returned to see about her home. She says she found many limbs had been broken from trees in her yard and that there was evidence of a strong wind. She called her son from Houston and he came about a week later and examined the roof. Plaintiff’s son testified he found shingles had been blown loose from the roof, that a portion covered by rolled roofing had been torn and that broken limbs had punctured the roof in several places. He made temporary repairs with plastic materials. Plaintiff’s sister also went into the home soon after the storm and saw the evidence of water damage to the ceilings, walls and floor. Mr. Gregory Palumbo, a roofing contractor, testified that plaintiff called him in the early part of September, 1974. He examined the roof and found it was damaged by windstorm and advised her to call her insurer. After the defendant insurer refused to repair the roof, Palumbo replaced the entire roof at a cost of $3,675.

The contention of the defendant that the roof was not damaged by windstorm is based on the following evidence: Parts of the roof were old, some having been on the house since 1957. Mr. Phil Ribbeck, a roofing contractor, examined the roof in June of 1974, apparently at the request of plaintiff’s daughter. He testified that on that occasion he found roofing of three different ages, some of which was worn out, and that a new roof was needed. He said he found no evidence of wind damage. Later, in September of 1974, he examined the roof again, along with Mr. Cagnina, an independent insurance adjuster, and Mr. Rowland, defendant’s adjuster. Mr. Ribbeck testified that on this occasion he particularly examined for wind damage and found none. Mr. Cagnina testified to the same effect. Defendant also called as witnesses several of plaintiff’s neighbors who testified that they had no wind damage to their roofs on the day in question.

From the above brief resume of the testimony, it is apparent that the factual issue of whether the roof was damaged by a windstorm was decided by the jury largely on the basis of its evaluation of the credibility of the witnesses. As far as our appellate review is concerned, there is clearly a reasonable evidentiary basis to support this factual conclusion of the jury. Canter v. Koehring Company, La., 283 So.2d 716 (1973).

The more serious question is whether the jury erred in awarding plaintiff penalties and attorney’s fees. The applicable law was recently stated by this court in Reed v. United States Fidelity & Guaranty Company, 302 So.2d 354 (La.App. 3rd Cir. 1974) as follows:

“The award of penalties and attorney’s fees made by the jury verdict and the judgment of the trial court is based on LSA—R.S. 22:658, which makes insurers liable for penalties and attorney’s fees when they fail to pay a claim within 60 days after receipt of proof of loss and demand, provided the failure to pay is found to be arbitrary, capricious or without probable cause. The statute is penal in nature and it must be strictly construed. Nichols v. Iowa Mutual Insurance Co., 232 La. 856, 95 So.2d 338 (1957); Cryer v. Gulf Insurance Co., 276 So.2d 889 (La.App. 1 Cir. 1973). Penalties may not be assessed merely because the insurer is the unsuccessful litigant in the lawsuit. They may be assessed only where the failure to pay is arbitrary, capricious and without probable cause. Headrick v. Pennsylvania Millers Mutual Insurance Co., 257 La. 1101, 245 So.2d 324 (1971).
Where there is a serious dispute as to the nature of the loss, thus leaving the question of coverage in doubt, the insurer’s refusal to pay the claim is not arbitrary, capricious or without probable cause. Guidroz v. General Accident Fire & Life Insurance Corp., 216 So.2d 377 (La.App. 3 Cir. 1968); Creole Explorations, Inc. v. Underwriters at Lloyd’s, 245 La. 927, 161 So.2d 768 (1964).”

From the above resume of the testimony, it is apparent that there was a serious question of fact as to whether the roof was damaged by a windstorm. Although the jury decided in plaintiff’s favor, on the basis of the jury’s evaluation of the credibility of the witnesses, the defendant was not arbitrary, capricious or without probable cause in denying the claim. We conclude the jury was manifestly erroneous in awarding penalties and attorney’s fees.

For the reasons assigned, the judgment appealed is reversed and set aside insofar as it awards to plaintiff penalties and attorney’s fees. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the defendant insurer.

AFFIRMED IN PART, REVERSED IN PART.

WATSON, J., concurs and assigns reasons.

WATSON, Judge,

concurring:

I am in complete agreement with the majority’s decision that there is no manifest error in the jury’s conclusion that plaintiff' has a valid claim for windstorm damage. Because I have considerable reluctance about reversing the award of penalties and attorney’s fees, I add the following brief comment.

There was considerable evidence on both sides of the windstorm claim. Plaintiff’s case on the merits cannot be said to be overwhelming; the jury resolved issues of credibility to decide the case. When that situation is present, it is very difficult to affirm the casting of an insurer for penalties and attorney’s fees. Penal statutes are strictly construed under the law. Only when the insurer is clearly arbitrary and capricious, may penalties be assessed. Therefore, I concur.


author: WATSON, Judge.

text:
    Huey Henry BREAUX, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5855.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    See also La.App., 326 So.2d 891.

      Voorhies & Labbé by Patrick A. Juneau, Jr., Pugh, Boudreaux & Gachassin by Charles J. Boudreaux, Lafayette, for defendant-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by John G. Tori-an, II, Lafayette, for plaintiff-appellee.
    Jacob D. Landry, of Landry, Watkins, Cousin & Bonin, New Iberia, for defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

Original plaintiff herein, Huey Henry Breaux, claimed damages for defects in design and supervision of construction of the Congress Garden Apartments by defendant architect Benjamin Ray Champagne. Also named as defendants were three insurers, St. Paul Fire and Marine Insurance Company, Northbrook Insurance Company and Stuyvesant- Insurance Company. Champagne and Northbrook filed a third party demand against Weill Construction Company, Inc. for indemnity as to any liability, and Weill filed a third party demand against its insurers, St. Paul and Trinity Universal Insurance Company. This appeal concerns only the claims of Northbrook against St. Paul and Trinity.

Breaux accepted a compromise settlement of $230,000, $225,000 from Northbrook and $5,000 from Champagne: a subrogation agreement was signed; and Northbrook was substituted as party plaintiff. Breaux released Champagne, Northbrook and Stuyvesant as to any damages for breach of the contract between Breaux and Champagne. Breaux reserved his rights against Weill on behalf of Northbrook and transferred any right against Stuyvesant for contribution to Northbrook. Northbrook filed an amending petition, contending that Weill breached its construction contract with Breaux, making Weill and its insurer, St. Paul, liable for the resulting damages.

It is not necessary to list all of the twenty-three items of damage claimed originally by Breaux against architect Champagne. All relate to drainage and flooding problems of the Congress Garden Apartments, the study and amelioration thereof, and the damages to Congress Garden Apartments incident thereto. Illustrative of the claims is Item 1;

“Estimated engineering fees to study drainage and flooding problems, make recommendation and designs as to possible remedial and/or rehabilitative work and field crews to do engineering, surveying, and supervising of remedial work_$9,479.50” (TR. 6)

The only items of damages, possibly of a different nature, are those in paragraph IX, section 20, which concerns future furniture loss and section 23, which concerns loss of reputation of the apartment complex.

Summary judgment was rendered in favor of St. Paul and Trinity as to all claims except (quoting from the trial court’s judgment):

“. . . the claim for contents not furnished by or a part of the work product of Weill Construction Company under plaintiff’s petition Article IX, subpara-graph 20 and except as to the claim for loss of reputation to the complex under plaintiff’s petition Article IX, subpara-graph 23.” (TR. 500)

The partial summary judgment was signed on October 11, 1976 and recites that the written reasons were assigned in a Memorandum of Judgment dated August 23, 1976. The matter came up for trial on the merits on August 24, 1976, before another division of the trial court. At this hearing, the parties disagreed as to what was included in the partial summary judgment. The matter was set aside to await signing of the partial summary judgment and this appeal. At that time, it was stipulated that, in consideration of the payment of $2500, Weill was released as to any claims not covered by the policies with St. Paul and Trinity, leaving these insurers as the only remaining defendants.

Northbrook, now the only plaintiff, has appealed from the partial summary judgments in favor of Trinity and St. Paul, contending that the trial court erred in finding no coverage under the policies except as to the claims in paragraph IX, sections 20 and 23, of the original petition.

Trinity has moved to dismiss North-brook’s appeal on the ground that Trinity was made a third party defendant by Weill; that Northbrook is not a party to that third party demand and hence has no standing to appeal the partial summary judgment granted to Trinity.

MOTION TO DISMISS

The motion to dismiss the appeal is without merit. Original defendant and substituted plaintiff Northbrook filed a third party demand for indemnity against Weill and Weill then filed a third party demand against its excess insurer, Trinity. LSA-C. C.P. art. 1111 provides that, when a defendant brings in a third party, plaintiff may assert against the third party any demand arising out of or connected with the principal demand. Whether a defendant can appeal against a co-defendant when no third party pleading has been filed by the appellant in the trial court was considered in Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963). The Supreme Court concluded in Emmons that an appeal against a co-defendant is tantamount to filing a third party demand. Appeals are favored under the law and the motion to dismiss the appeal as to Trinity is denied. LSA-C.C.P. arts. 2082 and 2086.

MERITS

Trinity’s is an “umbrella policy” and St. Paul’s a “liability policy”. The trial court granted partial summary judgments, concluding that similar provisions in their policies which exclude coverage for repair, replacement, loss of use or defective work by the insured, prevent recovery for any damages claimed other than those in paragraph IX, sections 20 and 23 of the petition. Section 20 asks damages for future furniture loss due to flooding and poor drainage; and section 23 asks damages for loss of reputation and renting desirability of the apartments. Trinity and St. Paul assert that consequential damages resulting from defects in construction in the entire apartment project, which constituted contractor Weill’s work, are not covered under the policies, and that the trial court correctly granted the partial summary judgments.

Northbrook contends that the other damages claimed in the petition are accidental losses resulting from the defective condition of the contractor’s work, which are not excluded under the policies.

St. Paul’s policy in pertinent part provides:

“Exclusions
“This insurance does not apply:
* * * * * *
“(o) to property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith;
“(p) to damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the Named Insured’s products or work completed by or for the Named Insured or of any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein.” (TR. 142)

Trinity’s provides:

“EXCLUSIONS. This policy shall not apply:
Hi * sf; s¡s
“(c) to damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the Named Insured’s products or work completed by or for the Named Insured or of any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein;
“(d) to personal injury or property damage resulting from the failure of the Named Insured’s products or work completed by or for the Named Insured to perform the function or serve the purpose intended by the Named Insured, if such failure is due to a mistake or deficiency in any design, formula, plan, specifications, advertising material or printed instructions prepared or developed by any Insured, but this exclusion does not apply to personal injury or property damage resulting from the active malfunctioning of such products or work;
* * * * * *
“(g) to property damage to (1) property owned by the Named Insured, (2) the Named Insured’s products arising out of such products or any part of such products, or (3) work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith; * * * ” (TR. 186)

All parties to the appeal discuss the applicability of Vobill Homes, Inc. v. Hartford Accident & Indem. Co., 179 So.2d 496 (La.App. 3 Cir. 1965) writ refused 248 La. 698, 181 So.2d 398. In Vobill, a summary judgment in favor of the defendant insurer was affirmed; this court concluded that responsibility for defects in a home constructed by the plaintiff contractor was excluded under a policy provision similar to those here. Vobill states that

“. . . it has uniformly been held that a liability policy with an exclusion clause such as the present does not insure any obligation of the policyholder to repair or replace his own defective work or defective product.” 179 So.2d 497

Vobill and its reasoning are precisely in point. The St. Paul and Trinity policies exclude clearly the coverage claimed by Northbrook, but disallowed by the trial court.

Vobill did not have the problem presented here of interpreting a partial summary judgment. However, LSA-C.C.P. art. 966 clearly provides for partial summary judgment, and St. Paul and Trinity are entitled to a determination that their policies do not provide the coverage claimed.

For another excellent review of the basic issue involved here, see the Illinois case of Hartford Accident & Ind. Co. v. Case Foundation Co., 10 Ill.App.3d 115, 294 N.E.2d 7 (1973), which cites Vobill and many other authorities. These cases stand for the proposition that a liability insurer who includes a “work product” exclusion in its policy is not liable for damages to the work product (in many cases a building or structure of some sort) of the insured due to negligent, faulty, or defective construction and workmanship. In other words, the courts recognize that liability policies are not performance bonds.

For the foregoing reasons, the partial summary judgment rendered herein by the trial court is affirmed and the matter is remanded for further proceedings according to law.

All costs are to await final disposition.

AFFIRMED AND REMANDED.

      . Stuyvesant was also named as a defendant, Northbrook alleging that it was liable for all or part of the amount paid to Breaux on behalf of Champagne. Summary judgment was rendered in favor of Stuyvesant on the basis of. an affidavit reflecting that Stuyvesant’s policy had expired prior to discovery of the damages. No appeal has been taken from this judgment.

      . Not in the record.

      . LSA-C.C.P. art. 1111:
      “The defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.
      In such cases the plaintiff in the principal action may assert any demand against the third party defendant arising out of or connected with the principal demand. The third party defendant thereupon shall plead his objections and defenses in the manner prescribed in Articles 921 through 969, 1003 through 1006, and 1035. He may reconvene against the plaintiff in the principal action or the third party plaintiff, on any demand arising out of or connected with the principal demand, in the manner prescribed in Articles 1061 through 1066.”

      . LSA-C.C.P. art. 2082:
      “Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.”

      . LSA-C.C.P. art. 2086:
      “A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.”


text:
    FIREMEN’S INSURANCE COMPANY, Plaintiff and Appellee, v. G & M CONSTRUCTION COMPANY et al., Defendants and Appellants.
    No. 5863.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused July 1, 1977.
    Lewis & Lewis by Seth Lewis, Jr., Opel-ousas, for defendants and appellants.
    Allen, Gooch & Bourgeois, Ltd. by Michael Harson and William L. Johnson, Jr., Lafayette, for plaintiff and appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   CULPEPPER, Judge.

The plaintiff, Firemen’s Insurance Company, carried collision insurance on an automobile owned and driven by James C. Bor-delon, which was involved in an intersec-tional collision with a vehicle driven by Julian Shuman. Firemen’s paid to Borde-lon the amounts due under its policy and took a subrogation against the parties who caused the accident. Named as a party defendant is G & M Construction Company, whose 18 wheel tractor-trailer unit is alleged to have been parked at the intersection in such a way as to obscure a stop sign, in violation of a State statute. The district judge found the truck obscured the stop sign and that this was a legal cause of the accident. From an adverse judgment, G & M Construction Company and its liability insurer, Zurich Insurance Company, appealed.

The issues are: (1) Was the truck parked in such a manner as to “obscure or obstruct” the stop sign, in violation of the statute? (2) If the truck was illegally parked, was this a legal cause of the accident?

The collision occurred at the intersection of North Fourth Street, which runs north and south, with Vine Street, which runs east and west, in the City of Eunice. Vine Street has the right of way, and there are stop signs for both north bound and south bound traffic on North Fourth Street. On the day in question, G & M Construction Company’s large 18 wheel tractor-trailer was parked on North Fourth Street at the curb about eight feet south of the stop sign on the southeast corner of the intersection. Mr. Shuman was driving in a northerly direction on North Fourth Street. He testified he was not very familiar with the intersection, and that he could not see the stop sign at Vine Street because it was obscured by the large parked truck. He had been going about 25 miles per hour, but he slowed down to about 16 miles per hour and entered the intersection. In about the northeast quadrant of the intersection, the front of Mr. Shuman’s vehicle struck the left front of the Bordelon automobile, which was traveling in a westerly direction on Vine Street.

The trial judge stated in written reasons: “I conclude that the parking of the truck-trailer so obstructed the stop sign as to constitute a violation of R.S. 32:143 prohibiting parking which obstructs traffic-control devices, and that such obstruction was a substantial causative factor in the collision.”

We find the evidence fully supports these factual conclusions of the trial judge. There is no question that the truck was parked eight to ten feet south of the stop sign in such a manner as to obscure or obstruct the visibility of the stop sign by a motorist approaching from the south on North Fourth Street. Shuman testified that because of the truck he could not and did not see the stop sign. He proceeded into the intersection where he struck the vehicle of plaintiff’s insured.

The defendants argue that since the truck was parked eight to ten feet south of the stop sign, it did not obscure visibility of the sign. The trial judge held to the contrary and we agree. Photographs filed in evidence show clearly that the truck did obscure visibility by a motorist approaching from the south on North Fourth Street, even though the truck was eight to ten feet from the sign.

Defendants also argue that the truck was pulling a flatbed trailer which was empty, and that a motorist could see the sign over the trailer. The trial judge held to the contrary, and photographs filed in evidence support a finding that visibility was at least obscured, if not completely obstructed.

Finally, defendants argue that even if the truck was illegally parked, this was not a legal cause of the accident. They say first that Shuman was familiar with the intersection and knew the stop sign was there. Shuman admitted that his father-in-law lived in Eunice about six blocks from the intersection in question. Nevertheless, Shuman testified he was not very familiar with the intersection and that the parked truck caused him to fail to see the stop sign. Defendants also argue Shuman had time, after passing the truck, to see the Bordelon vehicle and stop. Shuman denied this. The testimony by Mr. Shuman is sufficient to support the finding of fact by the trial judge as to causation.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge,

dissenting:

The majority affirms the trial court’s decision on. the theory that a parked truck was a “legal cause” of an intersectional collision.

None of the witnesses, except driver Shu-man, who ran the stop sign, testified that the sign was hidden by the parked truck. Some doubt arises as to Shuman’s lookout since he approached the apparently unmarked intersection, reduced his speed (according to his testimony) to 16 m.p.h., traveled past the front of the truck which was about eight feet from the sign, passed the sign which was set back from the corner, crossed a traffic lane and hit another vehicle. The Bordelon vehicle was approaching from the right and had the right-of-way, if at an uncontrolled intersection. Shuman had ample opportunity to stop or swerve after he passed the parked truck; his negligence was the sole cause of the accident. The only hard evidence which supports the idea that the truck blocked the sign are two photographs, apparently taken with a wide-angle lens, which has the effect of causing nearby objects to appear larger and distant objects to appear smaller. In one, photograph P-2, the stop sign on the opposite side of the street is readily apparent, showing up well because of its red color.

The truck was legally parked. It is an over-extension of the statute to hold that a driver, who legally parks, is obliged to scout around to see that he is not partially obscuring a traffic control device. A driver is entitled to rely on the authorities who plan parking to make that determination.

The parked truck was not shown to be a cause in fact of this particular accident, and, with respect, I therefore disagree with my colleagues of the majority and with the esteemed trial judge.