text:
    Agnes OLIVER v. ORLEANS PARISH SCHOOL BOARD.
    No. 9838.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      Gertler & Gertler, M. H. Gertler and James H. Looney, New Orleans, for plaintiff-appellee.
    Jefferson, Bryan & Gray, Trevor G. Bryan, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and GU-LOTTA, JJ.
   GULOTTA, Judge.

Plaintiff and defendant appeal from a November 16, 1977 judgment awarding temporary workmen’s compensation disability benefits from September 20, 1976 through November 15, 1977, medical and hospital expenses and costs. We affirm.

Unexplainably, on December 8, 1977, a second judgment was rendered awarding benefits from September 15, 1976 through November 8, 1977. The medical and hospital expense award and the assessment of court costs against defendant were omitted from the December 8th judgment. No motion for a new trial was requested following the November 16th judgment and no motion to correct or amend the judgment was filed. The second judgment was itself entered beyond the seven-day period of C.C.P. 1974 within which the court on its own motion could have granted a new trial. We are at a loss to understand why the December 8th judgment was rendered. At any rate, parties to this appeal address their argument only to the earlier judgment. Because we affirm the November 16th judgment, we annul, rescind and set aside the December 8th judgment insofar as it conflicts with the earlier award.

Plaintiff, a sixty-three year old janitorial employee of the Orleans Parish School Board for eighteen years, claims entitlement to permanent and total disability benefits as well as penalties and attorney fees. Defendant, on the other hand, claims that the award based on a fourteen month disability is excessive; that timely notice of the injury was not given to defendant; that no evidence was offered to support the hospital expense award; and that the trial judge erred in assessing costs against a state agency.

Plaintiff testified that on Thursday, September 16, 1976, while lifting a mop bucket at her employment, she suddenly felt “something like a ball dropping from her vagina.” On the following Monday, September 20th, Dr. Charles Frazer found a “rectocele” (protrusion of rectal wall into the vagina area) for which surgery was performed on September 27, 1976. Plaintiff’s salary was paid until the date of surgery; thereafter, she received accrued sick leave pay until January 5, 1977.

PLAINTIFF’S APPEAL

Plaintiff’s claim for total disability is based on her contention that because lifting in excess of twenty pounds is an integral part of her job; because of the injury she is unable to do any heavy lifting in excess of this weight; because of her age; because of her limited fifth grade education; and, because of the menial nature of her job, she is unable to resume her former employment and is not suited to do any work of any kind.

We reject this contention. Dr. James Bohn, a gynecologist, found in a September 20, 1977 examination, good surgical repair of the rectocele. Dr. Bohn disagreed with Dr. Frazer’s evaluation that there existed a 75% change of re-occurrence if plaintiff returns to the activities required in her former occupation. In Dr. Bohn’s opinion, plaintiff’s return to work would not cause, in itself, a re-occurrence. He felt plaintiff’s problem was “cured”. Dr. Frazer admitted that plaintiff was “as good as new six weeks after surgery”, although he had advised that she discontinue “all strenuous labor” to prevent a re-occurrence.

Accepting to Dr. Bohn’s testimony, the trial judge concluded plaintiff was not totally and permanently disabled. We find no error in the trial court’s credibility based determination.

We reject also, plaintiff’s claim for penalties and attorney’s fees. In an October 18, 1976 report, Dr. Frazer advised the school board that plaintiff had been under his post-surgical care for “pelvic prolapse and rectocele” and in his opinion “the strenuous work associated with her job contributed to her condition” and recommended that “she stop all strenuous labor to prevent a re-occurrence.” A December 27,1976 letter of demand from plaintiff’s attorney to defendant does not mention nor refer to a September 16th accident but asserts a claim for disability resulting from plaintiff’s eighteen years of strenuous labor. The doctor’s October 18th report apparently was enclosed with this demand. Because plaintiff was receiving sick leave, defendant reasonably could have believed that the doctor’s October 18th report was sent to defendant in connection with plaintiff’s sick leave. It was not until a July 1977 supplemental and amended petition was filed that mention was made of the September 16th accident. Under the circumstances, we find no error in the denial of penalties and attorney’s fees. We cannot say that defendant’s actions were arbitrary, capricious or without probable cause. (See R.S. 23:1201.2)

DEFENDANT’S APPEAL

Having concluded that plaintiff suffered no permanent, total disability, we are confronted with the more troublesome question, i. e., whether or not the trial judge erred in allowing a fourteen month disability award instead of a six weeks award. Relying primarily on the testimony of plaintiff’s physician, that Agnes Oliver was “as good as new six weeks after surgery”, and, relying further on the testimony of defendant’s medical expert who testified that after six weeks plaintiff was able to return to her former employment, defendant argues that plaintiff is entitled to compensation based on a six week disability.

The trial judge, in oral reasons, stated because of defendant’s failure to have plaintiff examined within a reasonable time of being put on notice of her medical condition; because plaintiff realized only at the time of trial that she could return to work; and, because she was an honest and credible person who was anxious to return to her employment, but believed (until the trial) that she was unable to do so, plaintiff was entitled to a fourteen month disability award.

As indicated by the trial judge, plaintiff did not have the benefit of any medical advice other than that of her physician. In this connection, plaintiff’s physician testified that although she could have returned to work six weeks after the operation, if she did not lift in excess of twenty pounds, he advised her not to do so because he understood from plaintiff her work involved heavy lifting. Plaintiff was not examined by defendant’s physician, Dr. Bohn, until September 20, 1977, approximately one year after the accident. Further, there is no indication in the record that, prior to trial, plaintiff was advised of Dr. Bohn’s opinion relating to the duration of her disability. Moreover, the record strongly supports the trial judge’s conclusion that plaintiff was a faithful eighteen year employee and was completely honest and credible. Under the circumstances, we cannot say the trial judge erred in awarding compensation based on a fourteen month disability.

We reject also defendant’s contention that the $1,048.65 medical and hospital expense award is not supported by evidence in the record. The parties stipulated to the $838.65 hospital bill. Defendant, however, at the time of the stipulation, reserved the right to examine plaintiff’s treating physician relative to the bills in connection with plaintiff’s injury. Based on this reservation, the trial judge withheld, at that time, ruling on the admissibility of the bill. Although defendant had ample opportunity to examine the doctor on the amount of the stipulated hospital bill, it failed to do so. The hospital bill was later re-offered and was followed by a “BENCH CONFERENCE”. We find no indication from the record that an objection was made to the re-offer of the hospital bill.

According to Dr. Frazer his bill amounted to $210.00. The physician’s bill and the hospital bill, when added together, totals the sum of $1,048.65. We find, under the circumstances, no error in the trial judge’s award in this amount.

Neither do we find merit to defendant’s contention that court costs cannot be assessed against a state agency. In Segura v. La. Architects Selection Bd., 362 So.2d 498 (La.1978), the Supreme Court held that the state and its agencies are not immune from the payment of court costs.

Finally, we reject defendant’s claim that because plaintiff failed to give notice to defendant within six months after the injury, no claim for compensation can be maintained. R.S. 23:1291. Although we have concluded that the October 18, 1976 report from Dr. Frazer to the school board did not sufficiently place defendant on notice to require invoking the penalty provisions of the act, nevertheless, we conclude the report did constitute notice that plaintiff suffered a work related injury. We conclude under the circumstances, the school board was given timely notice.

Accordingly, we affirm the November 15, 1977 judgment. The December 8, 1977 judgment is annulled, rescinded and set aside.

NOVEMBER 15, 1977 JUDGMENT AFFIRMED.

DECEMBER 8, 1977 JUDGMENT ANNULLED, RESCINDED AND SET ASIDE.

      . R.S. 23:1291 provides that no proceedings for compensation shall be maintained unless notice of injury has been given to the employer within six months after the date of the injury or death.

      . LSA-R.S. 13:4521 provides:
      § 4521. State and its subdivisions, boards and commissions not required to pay court costs.
      “Except as hereinafter provided, neither the state, nor any parish, municipality, or other political subdivision, public board or commission shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state or any such parish, municipality or other political subdivision, board or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the Parish of Orleans and the City of New Orleans. This Section shall have no application to stenographers’ costs for taking testimony.”

      . The stipulated bill was offered as P-1, however, the bill itself was not included in the record.


source: Caselaw Access Project

author: BOUTALL, Judge. LEMMON, Judge, LEMMON, Judge,

license: Public Domain

text:
    Melvina BRYANT v. NEW ORLEANS PUBLIC SERVICE, INCORPORATED and ABC Insurance Company.
    No. 9880.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Concurring Opinion In Denial of Rehearing Feb. 15, 1979.
    Frank S. Bruno, New Orleans, for Melvi-na Bryant, plaintiff-appellant.
    C. B. Ogden, II, New Orleans, for New Orleans Public Service, Inc., defendant-ap-pellee.
    Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

The sole issue in this appeal involves the determination by the trial judge that the refusal of the employer to pay workman’s compensation benefits was not arbitrary, capricious, or without probable cause.

The facts are as follows: Melvina Bryant, appellant, was employed as a bus driver for New Orleans Public Service, Inc., the appel-lee. On May 25, 1975, Mrs. Bryant slipped getting out of the driver’s seat of her bus injuring her back. NOPSI paid workman’s compensation benefits for one year following the accident, then refused further payment. Appellant filed suit for further benefits on July 15, 1976. In October of 1976, NOPSI paid appellant a lump sum covering the period from May, 1976 through October, 1976. Regular payments were then continued until August of 1977, then ended. NOPSI also refused to pay certain medical bills which appellant had incurred.

The trial court rendered judgment in favor of Mrs. Bryant decreeing her to be totally and permanently disabled and entitled to compensation benefits for 500 weeks, less credit for 118 weeks previously paid, and for all medical expenses incurred, less credit for those already paid. The claim for penalties and attorney’s fees, however, was dismissed. The judge stated in his written reasons for judgment that appellant’s physical condition was in dispute and that he therefore could not conclude that NOPSI was “arbitrary in refusing to accept the physchological evidence at face value.” Mrs. Bryant appeals from this finding.

Penalties and attorney’s fees are to be awarded only if the failure to pay is “arbitrary, capricious, or without probable cause”. Louisiana Revised Statute 23:1201.2. There is testimony in this record to the effect that no objective findings showed up in medical examinations of appellant to indicate the degree of disability which she presents. Some doctors testified that appellant’s pre-existing personality problems contributed greatly to her condition. In view of this evidence, we cannot say that the trial judge’s refusal to award penalties or attorney’s fees was manifestly erroneous for compensation payments.

We find, however, no justification in the record for the failure to pay certain medical bills of appellant, nor does NOPSI offer any reason. An arbitrary failure to pay medical bills also exposes the employer to penalties and attorney’s fees under the statute cited above. See Payne v. Travelers Insurance Company, 299 So.2d 913 (La.App. 3rd Cir. 1974). The bills in question are owed to Doctors Russo and Trahant and Baptist Hospital. Dr. Russo first saw the patient on a referral from Dr. Peterson of NOPSI. NOPSI paid part of the bill to Dr. Russo, but has never paid the balance. Appellant was treated by Dr. Trahant after a referral from Dr. Russo, who had admitted her to Baptist Hospital. For the employer to refuse to pay these bills after its own physician had referred the employee to Dr. Russo is an arbitrary failure to pay under the statute.

The evidence shows that the unpaid balance owed to Dr. Russo amounts to $696.00. Dr. Trahant and Baptist Hospital are owed $140.00 and $672.21 respectively. We therefore affirm that portion of the judgment which finds that appellee’s refusal to pay weekly benefits was not without probable cause, but set aside the judgment as to the unpaid medical bills set out above.

IT IS THEREFORE ORDERED THAT the judgment below be amended to include the statutory penalty of 12% on the amount of $1508.21 representing the sum total of payment of medical bills arbitrarily withheld. We also award attorney’s fees in the amount of $500.00. As amended, the judgment below is affirmed. Costs of this appeal to be paid by the appellee, New Orleans Public Service, Inc.

AMENDED AND AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurs and assigns reasons.

I agree that penalties and attorney’s fees should be imposed for failure to pay medical expenses. As to the denial of penalties and attorney’s fees for discontinuing compensation benefits, I concur in the denial for the following reasons.

Defendant discontinued compensation payments in May, 1976 on the basis of a report by an orthopedic surgeon, which stated that plaintiff demonstrated “a great deal of simulation” and that any organic disability secondary to the laminectomy would not prevent plaintiff from participating in normal activities. The report further questioned whether plaintiff’s obvious simulation was due to an emotional condition.

The trial judge, in concluding discontinuance of compensation payments was not arbitrary, stated:

“There is no substantial dispute, that combined with her physical condition, her emotional problems render her functionally disabled. Although there is no medical dispute about her emotional disability, because such a diagnosis requires a subjective evaluation of credibility, essentially a judicial rather than a medical determination, I cannot conclude that New Orleans Public Service, Inc., was arbitrary in refusing to accept the psychiatric evaluation at face value.”

I agree with this analysis. In a case involving physical disability a claimant generally wins if his complaints are supported by uncontradicted medical evidence. However, in a case involving emotional disability uncontradicted psychiatric testimony does not insure the claimant’s success in the litigation. Since psychiatric opinion depends peculiarly more upon the reliability of the claimant’s statements than on clinical testing, such evidence must be closely scrutinized, and the ultimate determination of emotional disability is a judicial one, even if the psychiatric opinion is uncontradicted.

Accordingly, defendant had the right to demand judicial determination of plaintiff’s emotional disability (when plaintiff was not physically disabled) without being subjected to penalties and attorney’s fees, which are designed to punish arbitrariness.

LEMMON, Judge,

concurs in denial of application for rehearing and assigns reasons.

On application for rehearing plaintiff complains that an award of only $500.00 in attorney’s fees for successful prosecution of an arbitrarily denied claim for workmen’s compensation benefits based on total and permanent disability constitutes an abuse of discretion.

No attorney’s fees were awarded for prosecution of the claim for weekly benefits, since defendant’s denial of that claim was not arbitrary. The $500.00 fee was awarded for successful prosecution of a $1,508.21 claim for those medical expenses which defendant arbitrarily refused to pay.


author: GARRISON, Judge.

text:
    Beverly Griffin BAKER v. Jackson L. BEEBE M.D. et al.
    No. 9565.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1979.
    Writ Refused Feb. 23, 1979.

      Joel T. Chaisson, Destrehan, Paul L. Bill-ingsley, New Orleans, for plaintiff-appellee.
    Lemle, Kelleher, Kohlmeyer & Matthews, H. Martin Hunley, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   GARRISON, Judge.

This is a suit by plaintiff against Dr. Beebe, her former gynecologist, and Dr. DiVincenti, the surgeon who subsequently took over her care. The plaintiff, a woman in her early 20’s, alleged that the hysterectomy which ultimately was performed upon her by Dr. Loyacano was made necessary by the negligence of the two defendant physicians.

The jury, while ruling in favor of Dr. Beebe, found in favor of plaintiff and against Dr. DiVincenti and his insurer. Dr. DiVincenti has appealed and plaintiff has also appealed seeking a judgment against Dr. Beebe.

The nature of this case requires, to an unusual degree, a highly detailed review of the facts.

SUMMARY OF THE FACTS

In August of 1972 Dr. Beebe, a specialist in obstetrics and gynecology, delivered plaintiff’s child by Caesarian section. Subsequently, plaintiff continued to visit Dr. Beebe regularly.

On March 7, 1974 plaintiff visited Dr. Beebe, complaining of pain in the lower right side of her abdomen. Dr. Beebe diagnosed an ovarian cyst and prescribed medication. On March 14th Dr. Beebe administered an injection to suppress the cyst.

On March 22nd plaintiff returned still complaining of abdominal pain. Dr. Beebe’s examination confirmed that the cyst was still present and prescribed penicillin medication for the plaintiff. On March 25th the cyst still seemed to be present and Dr. Beebe instructed her to continue taking the penicillin as well as pain tablets. On April 3rd Dr. Beebe concluded that the size of the cyst had decreased but learned that she had not menstruated although menstruation had been due several weeks earlier.

Plaintiff subsequently was admitted to the hospital where Dr. Beebe performed a “D and C” (dilation and curettage), which consists of an opening of the cervix and a scraping out of the womb. Dr. Beebe concluded that she had not ovulated and had not miscarried.

On May 8th Dr. Beebe performed a postoperative examination in which he felt no cysts in plaintiff’s ovary. Inasmuch as she was doing satisfactorily, she was released to normal activity. In June plaintiff called Dr. Beebe’s office and reported that she had not menstruated, and he prescribed medication which brought on menstruation. In September plaintiff called Dr. Beebe’s office complaining of a pain in her left side. She was instructed to visit the office, but did not.

On December 4th the plaintiff requested Dr. Beebe to fit her with an I.U.D. (intrauterine contraceptive device). On December 19th, 1974 Dr. Beebe examined the plaintiff in order to check placement of the I.U.D., and instructed her to return in six months for her regular check-up.

In June 1975 Dr. Beebe saw the plaintiff, conducted a pelvic examination and found no female problems. On July 17, 1975 plaintiff came to Dr. Beebe’s office complaining of a pain in her lower right abdomen. On that occasion Dr. Beebe concluded that she had a tender right ovary. He placed her on ampicillin medication.

Plaintiff returned to Dr. Beebe on July 21, 1975 continuing to complain of an abdominal pain. Because of fever and an elevated white blood count, he diagnosed appendicitis, along with the tender right ovary, which was classified as the same thing he had treated in March, 1974. In view of the appendicitis diagnosis, he referred her to Dr. DiVincenti, since a general surgeon treats this condition.

On the occasion of this referral, Dr. Beebe informed Dr. DiVincenti — according to the latter. — that, in his opinion, the plaintiff’s symptoms were not coming from any gynecological problem. While Dr. DiVin-centi conceded he initially diagnosed that she might have possible ovarian disease, he emphasized that her primary problem was appendicitis.

On July 23rd Dr. DiVincenti performed exploratory surgery in the area of plaintiff’s abdomen. Appendicitis was discovered, and the pathological report classified the specimen as acute appendicitis. The doctor also noted an oozing surface on the right ovary, indicating a ruptured corpus luteum cyst, and sutured the site of the oozing.

As Dr. DiVincenti testified, during the operation he was able to see and examine plaintiff’s reproductive organs, including both ovaries, her fallopian tubes and her uterus. Dr. DiVincenti’s testimony was that there was no evidence of gynecological or ovarian disease. He stated that it was “very common” to see a ruptured corpus luteum cyst during an appendectomy.

The plaintiff received post-operative treatment under Dr. DiVincenti.

However, on August 3rd she was re-admitted to the hospital because of an abscess of the surgical incision. She responded well to treatment and was discharged on August 9th with instructions to resume her routine gynecological care.

However, on September 2nd plaintiff was examined by Dr. DiVincenti’s associate as the result of her complaints of abdomen and chest pain and a burning sensation when she urinated. The examination turned out to be negative. She was next examined on September 3rd complaining again of abdominal pain, at which time additional tests were conducted. On September 9th she returned to Dr. DiVincenti’s office with a complaint of pain in the area of her incision and her chest. Because of tarry stools, epigactric pain, and various stresses, Dr. DiVincenti suspected an ulcer.

The plaintiff was re-admitted to the hospital on September 13, 1975 because of continued abdominal pain as well as a forty pound weight loss. After extensive tests and numerous consultations, the diagnosis was recorded as “abdominal pain of unknown etiology.” She was discharged on September 26 by Dr. Pettit, an internist and diagnostician, as doing well, with instructions to return in a year.

During these tests, Dr. Beebe was not consulted at anytime. Nor was any other gynecologist called in by Dr. DiVincenti. However, Dr. DiVincenti testified that in considering a diagnosis, he and his associates discussed gynecological problems, but that plaintiff had not had any menstrual complaints or vaginal bleeding or discharge, and that during surgery he had “held the organs in my hands,” which is “the best examination you can get.”

On November 19th plaintiff returned to see Dr. DiVincenti, complaining of a pain behind her right knee. On December 10th plaintiff returned to Dr. DiVincenti complaining of abdominal pain; however he was unable to find anything wrong with her. He did not consult a gynecologist. This was plaintiff’s last visit to Dr. DiVin-centi.

Plaintiff testified that in late December of 1975 or in January, 1976 she called Dr. Beebe to inform him that she had been bleeding for 31 days and that he advised her to wait until her next period and then to call again. However, Dr. Beebe specifically denied this occurrence, stating that he was completely out of practice with a serious coronary infarction from October, 1975 until mid-February, 1976.

On the same day, at the urging of friends, plaintiff called Dr. Eugene Loyaca-no, a gynecologist, and complained of her continued bleeding. (Dr. Loyacano’s records indicated the date was January 23, 1976.) Dr. Loyaeano saw the plaintiff in his office and observed that she experienced minimal tenderness in her uterus and ovaries. Since she had the I.U.D., he suspected endometritis, which is inflammation or infection of the lining of the uterus and caused menstrual-type pain.

On January 30th he saw her again, at which time he found that she still had a tender uterus and ovaries. On January 31 he again saw her. She was now experiencing pain in her right fallopian tube and ovary, along with vaginal bleeding. He removed the intrauterine device at this time, because the device often causes en-dometritis.

On February 6th plaintiff again consulted Dr. Loyaeano, complaining of abdominal pain on both the left and right sides of her abdomen. Two days later she was hospitalized, at which time Dr. Loyaeano performed a “D and C” operation.

On February 17th plaintiff against visited Dr. Loyaeano, complaining of moderate to severe pain in her right abdomen and left side. Because of the appearance of a new and significant symptom, a prolapsed uterus, he recommended a hysterectomy.

On February 23rd plaintiff was admitted to the hospital. Two days later Dr. Loyaca-no performed a total abdominal hysterectomy on plaintiff, removing her uterus in toto, both tubes and the ovaries.

Dr. Loyaeano, who testified as an expert in the field of obstetrics and gynecology as well as plaintiff’s gynecologist, stated that during the course of the operation he observed that:

“. . . the uterus was deeply recessed in the cul-de-sac and a little bit larger than usual and a little softer or mushier. The uterus a little bit on the abnormal size and being recessed means that it was deeply placed down, way down in the pelvic tunnel. And this was giving the patient the felling of prolapse, that is, that feeling as if her bottom was going to fall out. Okay. Both tubes appeared to be grossly abnormal. The fallopian tubes to me at the time, this was a gross visual observation that they did not appear to be normal. They were grossly abnormal. Both ovaires were enlarged above normal and very cystic. .
“. . . The left ovary was twice the normal size and . . . this ovary had a cyst that was bleeding at this time and there was a little blood in the peritoneal cavity or the abdominal cavity. It was also noted that both tubes and ovaries were adhered by some very fine, very fine tubo-ovarian adhesions. This means that both tubes and ovaries were kind of stuck together and stuck to the pelvic side wall or abdominal wall by piano string, just like strings of mucus across in a spider web fashion. . . . ”

Dr. Loyacano went on to testify that there were also additional abnormal adhe-sions, which he broke and dissected, that the ovaries were enlarged and very cystic, that the veins in the infundibulo-pelvie ligament and the broad ligament appeared to be larger than normal, and that there were a few that were tortuous, suggesting possibly a pelvic congestion syndrome. He stated that this congestion syndrome could cause pain in the patient and that his removal of the uterus and the tubes and the ovaries were to assure the plaintiff of permanent relief.

He testified further that these abnormalities were plainly visible during surgery, that they were not recent developments but had been long standing. He “venture(d) a guess” and estimated that the condition developed over a period of approximately two years. However, he explained as follows:

“I’ll have to answer this question, Judge, in my own way, because it needs some clarification. Because first of all, when female problems occur, they may simmer. A doctor may not detect signs and symptoms of female problems. When I say that Mrs. Baker’s problems existed for two years, what I mean is that these problems possibly could have started two years prior without any signs of symptoms to give an example, many times we have had to take a single tube and ovary out of young girls because of chronic pain in that one particular side and at the time of the operation the tube and ovary looked very, perfectly normal. However, at that time it was, we know that if an organ causes chronic pain, we excise or remove that organ to correct the pain. So I cannot say with certainty that Mrs. Baker had signs and symptoms of female problems during that course of two years without exhibiting signs and symptoms of it. She may have, when I say that this was, when I say that that was existing, she may have had perfectly looking normal tubes and ovaries and female organs during that time and yet still caused pain, you know. However, she did not exhibit any signs and symptoms of female problems so in my opinion no one could, no one had any justification to try to save anything that wasn’t giving any problems.”

After Dr. Loyaeano’s surgery, plaintiff no longer experienced female problems as she had previously. She did, as she testified, experience serious emotional problems, having had a nervous breakdown — which hospitalized her — as recently as two months prior to her testimony.

NEGLIGENCE OF DR. BEEBE

There is no suggestion that Dr. Beebe’s treatment of plaintiff’s complaints of a tender ovary in March, 1974 was not proper. Dr. Beebe testified that 15% of his patients each month have this complaint and that the condition almost always subsides with conservative treatment, as plaintiff’s did.

Nor is there any suggestion that the “D and C” procedure in May, 1974 was improperly undertaken or yielded untoward results.

Plaintiff’s next complaint was 14 months later and one month after a completely normal periodic check-up. He began conservative treatment with antibiotics, but when a serious situation with possible appendicitis presented itself four days later, he immediately referred her to the proper specialist.

Plaintiff never consulted Dr. Beebe again.

The jury properly concluded Dr. Beebe’s conduct did not fall below accepted standards of proper medical care.

NEGLIGENCE OF DR. DiVINCENTI

The main thrust of plaintiff’s case against Dr. DiVincenti was his failure to discover the diseased organs during the July, 1975 surgery and his failure to seek gynecological consultation during the period in which he was unable to explain plaintiff’s complaints of abdominal pain.

Plaintiff has the burden of proving the elements of negligence by a preponderance of the evidence. Since Dr. DiVin-centi was the only trial witness who was present at the surgery, proof of the fact that the organs were diseased at the time, which should have been observed by him, depends upon circumstantial evidence.

Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972). Here, the only evidence possibly suggesting the disease of the organs was observable in July, 1975 was Dr. Loyacano’s estimate that the disease developed over the course of two years. However, he carefully explained that plaintiff may have had normal looking organs at the time of surgery, even if she complained of pain. On this evidence, viewed as a whole, it is at least equally probable that there were no observable signs of disease at the time of surgery, and there is no preponderance favoring plaintiff.

As to the failure to seek consultation by gynecologist, Dr. DiVincenti explained that from July, 1975, when he undertook plaintiff’s treatment, until December, 1975, the last time she consulted him, she never stated any history of menstrual complaints, or vaginal bleeding or discharge, or any other symptoms which would call for consultation with a gynecologist. There is absolutely no evidence in this record that she described any of these symptoms. More importantly, there is absolutely no expert testimony that because of the symptoms plaintiff did describe, Dr. DiVincenti should have called a gynecologist in consultation. In fact, the only expert evidence is directly to the contrary.

Plaintiff’s case falls for lack of evidence sufficient to support the jury verdict.

For the assigned reasons, the jury verdict rendered in favor of Dr. Jackson L. Beebe is affirmed and the verdict rendered against Dr. Frank B. DiVincenti is reversed.

AFFIRMED IN PART; REVERSED IN PART.

      . Dr. Beebe described corpus luteum cyst as a normal cyst which develops in one of the ovaries each time a woman ovulates. The cyst ruptures during the menstrual cycle and allows the egg to escape and pass into the fallopian tube. The doctor stated it would not be possible to ovulate without the formation and rupture of corpus luteum cyst, noting that the rupture does not indicate anything abnormal.

      . While denying that he gave this advice, Dr. Beebe admitted such conduct would be below the standards of acceptable medical care. The jury, by finding Dr. Beebe free of negligence, obviously accepted his version over that of plaintiff.


author: GARRISON, Judge. LEMMON, Judge,

text:
    Mr. and Mrs. Ernest FLOWERS v. U. S. FIDELITY & GUARANTY CO. et al.
    No. 9587.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1979.
    Rehearing Denied Feb. 15, 1979.

      Windhorst, Heisler, Delaup & Wysocki, E. Gordon Schaefer, Jr., New Orleans, for plaintiffs-appellants.
    Chaffe, McCall, Phillips, Toler & Sarpy, Peter A. Feringa, Jr., James A. Babst, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON, and GARRISON, JJ.
   GARRISON, Judge.

Plaintiff Mrs. Ernest Flowers was involved in an automobile accident with defendant’s insured on January 11, 1976. Mrs. Flowers was hospitalized as a result. During this time a U.S.F. & G. adjuster settled the property damage claim with Mr. Flowers, her husband and also a plaintiff. With the exception of a $175 bill from Dr. Landry, all of plaintiff’s medical expenses also were paid by U.S.F. & G.

Mrs. Flowers discussed settling her claim with Leon Aucoin, an adjuster for defendant, however no dollar amount was reached, each party wanting to wait until all of the reports were in. The plaintiff was released by Drs. Hoffman and Landry in June of 76. Her dentist released her on November 14, 1976. Mrs. Flowers did not assemble her medical reports until after the anniversary date of the accident at which time U.S.F. & G. refused to discuss settlement.

On February 3, 1977 suit was filed against U.S.F. & G. and Aucoin alleging: that prescription was suspended or interrupted on the original accident; that Au-coin repeatedly represented to plaintiff that U.S.F. & G. would arrange a settlement; that U.S.F. & G. was equitably estopped from pleading prescription; and that U.S.F. & G. breached a contract to settle.

The plaintiff based her claim upon the initial payments made by the insurance company and upon the assurance made to her by Aucoin that he would make the settlement whenever she was released from the doctors and all the doctor’s reports were in. She did not allege that Aucoin misled her as to the prescriptive period. She never inquired about a time limit nor consulted an attorney.

The defendants filed peremptory exceptions of prescription as to the claim based on the underlying accident and no cause of action as to the tort claim (arising out of their conduct of the settlement negotiations) against Aucoin and U.S.F. & G. as well as a motion of summary judgment on the claim of breach of contract. The trial court sustained the exceptions and granted the summary judgment dismissing plaintiff’s action with prejudice. We affirm.

Plaintiffs’ arguments as to equitable es-toppel and interruption of prescription have been previously rejected. Wooden v. Hartford Ins. Co., 335 So.2d 742 (La.App. 2d Cir. 1976); Tassin v. Allstate Ins. Co., 310 So.2d 680 (La.App. 4th Cir. 1975) w. r. La., 313 So.2d 836.

Tassin specifically rejected the argument that prescription was interrupted by an acknowledgment of debt under La. C.C. Art. 3520. Since no amount of settlement was discussed or reached Art. 3520 is inapplicable. This article applies to situations where there is a liquidated and not a to-be-negotiated amount. “A debtor cannot acknowledge a debt so as to stop the running of prescription against it without knowing what amount he is acknowledging.” Kennard v. Yazoo & M. V. R. Co., 190 So. 188 (La.App. 1st Cir. 1939). The Tassin court specifically held that payment of property damage and negotiations did not constitute acknowledgment. See also Wooden, supra.

The Tassin court also held that the principle of contra non valentem does not apply unless there is fraudulent conduct by the defendant in the form of words and actions which are designed to and which prevent the timely filing of suit. Not discussing settlement until all the medical reports are in does not constitute fraud. Deceit is an indispensable element of estoppel to plead prescription. Victor v. Meydrich’s Venice Gardens Super Market, 344 So.2d 56 (La.App. 4th Cir. 1977) w. r., La., 346 So.2d 217. See also White v. Hartford Casualty Ins. Co., 297 So.2d 744 (La.App. 1st Cir. 1974).

“The doctrine that prescription does not run against one who is ignorant of facts which would entitle him to bring suit does not apply when the ignorance results from his negligence.” Lemmon, J., concurring in Guardian Funds v. Medallion Insurance Agency, 359 So.2d 1335, 1337 (La.App. 4th Cir. 1978) citing Dean v. Hercules Inc., 328 So.2d 69 (La.1976). Although in the instant case plaintiff was in ignorance of law not facts, the analogy is clear. Suit was not filed because plaintiff failed to consult an attorney and inquire about a prescriptive period.

Appellants urge, in effect, that Aucoin was negligent in conducting settlement negotiations. There can be no negligence unless defendant breached a duty to plaintiffs. Straley v. Calongne Drayage and Storage Inc., 346 So.2d 171 (La.1977); Callais v. Allstate Ins. Co., 334 So.2d 692 (La.1976). However, it has been held that as adversaries, there is no relationship existing between the plaintiffs and the insurance adjuster on which a duty to inform of prescription can be based. Green v. Grain Dealers Mut. Ins. Co., 144 So.2d 685 (La. App. 4th Cir. 1962). Therefore, the Flowers tort claim should be rejected because no cause of action has been alleged. Williams v. Red Barn Chems. Inc., 188 So.2d 78 (La. App. 1st Cir. 1966).

Appellants’ contention that there was a contract to settle must also fall. La.C.C. 3071 requires that a compromise must be by mutual consent and reduced to writing. The jurisprudence requires “it must be unambiguous, perfect and complete in itself so that nothing is left for ascertainment by parol proof.” Hammack v. Resolute Fire Ins. Co., 233 La. 359, 96 So.2d 612, 616 (1957); Masinter v. Grunewald, 309 So.2d 739 (La.App. 4th Cir. 1975). In the case at bar, nothing was reduced to writing and there was no amount even discussed, much less consented to.

Appellants’ final argument is based on the concept of unjust enrichment. A requirement for that action is that there be no legal cause for the enrichment. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1968). An obstacle of law such as prescription clearly bars restitution for unjust enrichment if it is sought in another action. Tate, The Louisiana Action for Unjustified Enrichment, 50 Tul.L.R. 883, at 892. “[T]he action de in rem verso cannot be used to contravene an imperative rule of law which, in effect, permits and thus justifies the enrichment.” Thus, plaintiff’s action in this case does not meet the criteria for an action de in rem verso, because there has been no unjustified enrichment since prescription supplies the justification.

With regard to the contention that the medical and auto payments by the insurance company constituted acknowledgment of the debt and interruption of prescription as to the underlying tort claim, considerations of public policy weigh against it. Insurers should be encouraged to act to the extent that circumstances permit, with a reasonable degree of fairness and compassion, without the fear that such a demonstration of humane concerns will later be held against them.

AFFIRMED.

LEMMON, J., dissents with written reasons.

LEMMON, Judge,

dissents and assigns reasons.

This case presents the legal issue of whether an unconditional payment by the alleged tortfeasor or his insurer of part of the damages caused by a tort constitutes a tacit acknowledgment of the debt by a debtor so as to interrupt the running of prescription under C.C. arts. 3520 and 3551. I vote in the affirmative.

The undisputed payment in this case of the property damage and medical expenses cannot reasonably be construed as anything but an unconditional payment by a debtor of part of the debt. If plaintiff had been holding a promissory note executed by defendant in the amount of all of the tort-caused damages, there would be no argument that payment on the note of the amount attributable to property damage interrupted prescription as to the entire note. Furthermore, there is no valid basis for distinction, for purposes of interruption of prescription, between payment on a liquidated debt and payment on an unliquidated debt. 2 Civil Law Translations — Aubry & Rau, Property, § 215, no. 304 (La.St.L.Inst. Trans.1966); 2 Planiol, Treatise on the Civil Law, § 665 et seq. (La.St.L.Inst.Trans.1959); 5 Civil Law Translations — Baudry-LaCan-tinerie & Tissier, Prescription, §§ 476, 527-535 (esp. 531), 647.

Nor does public policy justify refusing to classify the partial payment as an acknowl-edgement which interrupts prescription. Liability insurers should not be discouraged from making partial payments of tort damages. Such payments benefit the tort victim by giving him prompt recovery of out-of-pocket expenses and often benefit the insurer by providing sufficient satisfaction so that the victim does not consult counsel to seek further recovery. However, such payments by the insurer are not really “held against them” simply because the tort victim is given a full year from the time of payment to decide whether to file suit for the balance of the damages.

      . Obviously, the tortfeasor’s debt for the property damage and medical expenses could not exist separately from the debt for the remainder of the damages caused by the same tort. Furthermore, the payment was unconditional and thus cannot be construed as an offer to compromise.

      . There is a difference, perhaps, for purposes of determining whether payment constitutes an admission indicative of liability, and perhaps for that purpose the fact of payment may not be admissible evidence. However, that is not at issue in this appeal from a judgment maintaining an exception of prescription prior to trial on the merits.


author: LEMMON, Judge. SAMUEL, Judge,

text:
    Suzanne WEXLER, wife of/and Nathan Wexler, M. D. v. Austin MARTIN et al.
    No. 9612.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1979.
    Rehearing Denied Feb. 15, 1979.
    For Concurring Opinion in Denial of the Application for Rehearing March 13, 1979.
    See 369 So.2d 273.

      Steven R. Plotkin, New Orleans, for plaintiffs-appellees.
    Murphy & Simon, E. Kelleher Simon, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   LEMMON, Judge.

Defendants’ appeal in this personal injury litigation essentially questions the quantum of the jury verdict, although several significant procedural issues are also presented.

I

The original petition, filed in November, 1976, demanded $20,000.00 in general damages for past and future pain and suffering resulting from unspecified injuries sustained by Mrs. Nathan Wexler and $239.47 in medical expenses. After the jury was impaneled on the first day of trial in October, 1977, Mrs. Wexler’s counsel attempted to file a supplemental and amended petition which increased the demand for pain and suffering to $200,000.00 and added claims for future medical expenses and for a lum-bosacral corset. The trial judge refused to permit the pleading to be filed at that stage of the proceeding, and the trial proceeded on the basis of the demands in the original petition.

After presentation of the evidence was completed, but before closing arguments and jury instructions, Mrs. Wexler’s counsel filed a “Motion to Amend Pleadings to Conform with the Evidence”. This pleading, which was allowed by the trial court over defendants’ objection, increased the demand for pain and suffering to $100,000.00 (the limits of defendants’ liability insurance policy) on the basis that the “evidence adduced at trial on the merits in this case reveals injuries and damages in excess of those pleaded in the original petition”.

The jury returned a verdict awarding $41,000.00 to Mrs. Wexler and $14,000.00 to her husband, which plaintiffs’ counsel concedes could only be for any proved past and future medical expenses.

II

Defendants first argue that since the judgment cannot exceed the demand, the award must be reduced at least to the amount demanded in the original petition. Implicit in this argument is the contention that the post-trial motion to conform the pleadings with the evidence was improperly allowed and therefore the only pleading properly before the court was the original petition.

Under C.C.P. art. 1154 an issue which has not been raised by the pleadings, but has been tried by the express or implied consent of the parties, must be treated in all respects as if the issue had been raised by the pleadings. Accordingly, the pleadings may subsequently be amended, even after judgment, to reflect the enlargement by evidence introduced without objection, but “failure to so amend does not affect the result of the trial of the issue”.

The purpose of C.C.P. art. 1154 is to recognize the principle that pleadings may be enlarged by evidence introduced without objection. Once such evidence has been introduced, then the pleadings may be formally amended as a housekeeping measure, but formal amendment is not necessary to allow a judgment based on the evidence which enlarged the pleadings.

In the present case the issue of damages for past and future pain and suffering was raised by the original petition, and there was no point in the presentation of evidence on this issue at which defendants could have objected to an enlargement of the pleadings. C.C.P. art. 1154 was therefore not an appropriate procedural tool under these circumstances, since the motion was not addressed to new issues omitted in the original petition and enlarged by evidence, but rather was essentially an attempt to amend the original petition by increasing the amount of the demand for pain and suffering.

We therefore conclude the motion to conform the pleadings to the evidence was improperly allowed. Viewing the original petition as the only pleading properly addressed to this issue, we now turn to the naked issue of whether the amount of the judgment can exceed that of the demand of the prayer.

Ill

In their petition plaintiffs alleged items of general damages, estimating the amount thereof, and at trial they presented evidence to support the demand for relief. The judgment granted the relief in an amount greater than the estimated amount listed in the original petition.

Pertinent to the decision of this issue is C.C.P. art. 862, which provides:

“Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”
At the threshold we observe that there is no requirement in the Code for specific allegations of items of general damage. Logically, if there is no need to itemize or estimate general damages, there should be no penalty or limitation on a party who does so.
The exception in the introductory clause of C.C.P. art. 862 is also significant. Inasmuch as the excepted article (C.C.P. art. 1703) expressly provides that a judgment by default cannot exceed in amount that demanded in the petition, the general article (C.C.P. art. 862) should logically be interpreted to mean that other types of final judgments can exceed in amount that demanded in the petition. Of course, this is particularly persuasive since, as noted above, there is no requirement for itemization or estimation of general damages in the first place.
Furthermore, the source of C.C.P. art. 862 is Federal Rule 54(c), and the federal cases interpreting that rule consistently allow judgments to exceed the amount of the demand. 10 Wright & Miller, Federal Practice and Procedure § 2664 (1973); 3 Barron & Holtzoff, Federal Practice and Procedure § 1194 (1958); 16 A.L.R.Fed. 748, § 26 (1973).

We are aware of, but disagree with, the case of Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), in which the First Circuit held, in a divided decision, that C.C.P. art. 862 and 1841 were not intended to allow a trial court to award general damages in excess of the demand. However, another panel of that circuit in Cohrs v. Meadows, 342 So.2d 1172 (La.App. 1st Cir. 1977), applied C.C.P. art. 862 to award 500 weeks of workmen’s compensation benefits, although the claimant had only demanded 400 weeks in the prayer of her petition. Moreover, in Cambrice v. Fern Supply Co., 285 So.2d 863 (La.App. 4th Cir. 1973), this court refused to limit the award for future medical expenses to the amount demanded in the petition.

We also acknowledge the argument that if the judgment is allowed to exceed the demand, an insured defendant who is sued for an amount below the policy limits will not be able to rely on the lesser demand as an assurance that he will have no liability above those limits. There are several answers to this argument. First, this argument has no specific applicability in this case, since the judgment does not exceed the policy limits. Second, as a practical matter and as a matter of present-day trial strategy, the demand usually exceeds the policy limits, unless the limits are extremely high and the damages are extremely slight. (And when the demand exceeds the policy limits in the cases which come before the court, seldom does the individual defendant seek separate representation.) Finally, any argument justifying the limitation of the judgment to the demand should have been addressed to the legislature prior to 1961, when that body changed the prior law by adopting C.C.P. art. 862 to provide that the amount of the demand is only relevant to default judgments. See also Budget Plan of B. R., Inc. v. Talbert, 276 So.2d 297 (La.1973), which discusses C.C.P. art. 862, 865, 2164 and 5051 as requiring liberal construction of pleadings so as to afford relief to which the party is entitled.

We accordingly reject defendants’ argument that the judgment should be reduced for the reason that the amount of damages for pain and suffering exceeds the amount demanded in the petition.

IV

Defendants next contend the trial judge erred in permitting evidence that they had paid the Wexlers’ automobile damage.

Evidence of payment of some damages by the alleged tortfeasor is completely irrelevant to any issue in this case and should have been excluded. As is the case with any irrelevant evidence, the problem is that this evidence appears to the jury to prove something that it does not actually prove, namely, that defendants were liable for the accident. However, the issue of liability, although contested in the trial court, is now conceded on appeal.

Defendants argue, nevertheless, that evidence of this apparent admission of liability prior to trial by a party contesting liability at trial had a prejudicial effect on the jury which set quantum. While not passing specifically on this doubtful argument, we note that any prejudicial effect on the jury was cured by the trial judge’s admonition in admitting the evidence that the payment was not to be considered as an admission of liability.

V

Defendants next contend that counsel for plaintiffs usurped the function of the judge by instructing the jury as to the law in closing argument. This contention must be discussed in the context in which the situation arose.

During closing argument counsel for defendants, in rebutting plaintiffs’ counsel’s argument that asked for an award in the $200,000.00 range, pointed out that the original petition filed almost a year after the accident demanded only about $21,000.00. Then in rebuttal argument counsel for plaintiffs explained that since petitions are often hurriedly drafted from interview notes, the law in its wisdom allows amendment to the pleadings as the situation changes. When the court maintained an objection to counsel’s instructing the jury on the law, counsel attempted to explain to the jury what had happened when the judge allowed his motion to conform the pleadings to the evidence and stated that the jury could now award any amount of damages it deemed proper on the evidence. Defendants’ counsel then objected, whereupon counsel then argued between themselves over whether the judgment legally could exceed the amount of the demand. In the course of the bickering plaintiffs’ counsel referred to an appellate decision by name and citation.

Undoubtedly, it was improper for counsel to state points of law and to cite appellate decisions to the jury. See discussion in Little v. Hughes, 136 So.2d 448 (La. App. 1st Cir. 1961). However, the main impropriety in this respect occurred when counsel argued with each other, rather than addressing objections and arguments to the court.

In retrospect the jury should never have become involved in the legal question of whether the judgment could exceed the amount of demand. However, while defendants contend in brief that the trial judge erred to their prejudice by failing to exercise proper control over closing argument, upon review of the record we cannot say that the improper bickering between counsel and the comments and arguments which led up to the bickering were more prejudicial to defendants than to plaintiffs.

VI

Defendants finally contend the awards for general and special damages were so excessive as to constitute an abuse of the jury’s discretion.

Prior to the accident herein sued upon, Mrs. Wexler had suffered in May, 1973 a spontaneous onset of low back pain. Dr. Irving Redler, the treating orthopedic surgeon, diagnosed a ruptured lumbar disc and prescribed bed rest, heat, medication, and eventually a lumbar corset. By June she complained of pain only when arising in the morning, and in November the physician pronounced her completely well and discharged her, commenting that the vast majority of patients with this condition recover without surgery.

Mrs. Wexler was again injured in a February 4, 1975 automobile accident, and Dr. Redler diagnosed acute strain of the neck and lower back and possible reactivation of the previous disc injury. After four treatments in two months Mrs. Wexler had back pain only when pressure was applied, and she was eventually discharged on May 20 as fully recovered.

Mrs. Wexler resumed normal activities with no problems until the injury in suit occurred on November 10, 1975, when a wrecker ran into her car. On the basis of spasm, restriction of motion, and a positive straight leg raising test, in addition to complaints of back pain radiating into the legs, Dr. Redler diagnosed acute back strain and possible aggravation of the previous disc injury. He prescribed bed rest, restriction of activity, and a lumbosacral corset.

Her condition remained essentially the same through January, 1976, at which time her main complaints of pain were at the end of the day. In April, 1976 X-rays revealed narrowing of the disc spaces, indicating degeneration of the disc. Since the narrowing was not there before and would not normally be expected at age 33, Dr. Redler attributed this change to the November accident. Noting that she had fully recovered from the previous incidents and was free of pain prior to the November accident, he stated that the degenerative changes seen on the X-rays would account for her persistent low back pain. He further described the condition as permanent and progressive.

Mrs. Wexler began exercises prescribed by Dr. Redler and improved by June. Although she still had nagging back pain which radiated into the right leg, he released her in October, 1976, advising her to return if the symptoms worsened.

She did return in October with the same complaints, but there were no objective findings. Then in May, 1977 she returned with severe complaints and exhibited spasm and limitation of range of motion, but she denied any intervening incident. By July she had improved somewhat with heat applications, bed rest and continuation of the corset. On September 29, 1977, about six weeks before trial, she was still wearing the corset and still exhibited spasm, restriction of back motion, and pain on straight leg raising.

Dr. Redler assigned a 10 to 15% permanent disability of the back, attributable to the November, 1975 accident, and stated “(s)he probably will continue to have problems”. He added “I also think that someday she may have some surgery”. However, he testified he did not contemplate surgery “at this time”, but would recommend fusion if the disc continues to degenerate and the arthritic changes become more severe. He stated there had been no increase in the degree of change between April, 1976 and September, 1977, and he had not performed a myelogram or other tests to confirm a ruptured disc because he did these only when he contemplated surgery.

Another orthopedic surgeon examined Mrs. Wexler the week before trial and found no “definite spasm” and no significant narrowing on the September, 1977 X-rays. From the examination, history and review of Dr. Redler’s records he concluded that in the November, 1975 accident Mrs. Wexler had aggravated her original back problem, which he characterized as a low back sprain syndrome. However, he opined that the problem originated in 1973 and that 11 months after the November, 1975 accident, she had reached her pre-injury functional capacity.

Although there were obvious proof problems with causation and extent of disability attributable to this accident, there was ample evidence in the record to support a finding of injury caused or aggravated by this accident by which the jury could have awarded $41,000.00 without abusing its “much discretion” accorded by C.C. art. 1934(3).

The award of $14,000.00 to Mrs. Wexler’s husband, however, cannot be supported. The evidence established past medical expenses of $334.69. While there was some estimate of the cost of future medical expenses (about 10% of the award), there was no showing that, more probably than not, these expenses will be incurred. The probability of surgery, based on this record, is far too speculative to support an award for future expenses in this regard. The award to Mrs. Wexler’s husband must therefore be reduced to $334.69.

Accordingly, the judgment of the trial court is amended to reduce the judgment in favor of Nathan Wexler from $14,000.00 to $334.69. As amended, the judgment is affirmed. Costs of the appeal are assessed against defendants.

AMENDED AND AFFIRMED.

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

SAMUEL, Judge,

dissenting in part.

In my view, C.C.P. Art. 862 (what is hereinafter said about C.C.P. Art. 862 also is applicable to C.C.P. Art. 2164) does not change the prior, long established Louisiana rule, both before and, more importantly, since the effective date of the adoption of our present Code of Civil Procedure, that a plaintiff may not be awarded more in money damages than the amount prayed for. The comments appearing under Article 862 show that article was intended to eliminate a necessity for a prayer for general and equitable relief (it should be noted the rule limiting recovery to the amount prayed for was applicable despite a prayer for general and equitable relief) and to suppress the harsh and unduly technical “theory of the case” doctrine in Louisiana. Nor do the comments under Article 2164 indicate any intent to change the rule.

If a change of the rule referred to was intended to be made by Articles 862 and 2164, that end could and, in my opinion, would have been accomplished by specific language either in the articles themselves or in the comments under the articles.

A liberal construction of pleadings to afford relief to an entitled party must be balanced against the consistent position of the Code in requiring fact pleadings, fair notice and the avoidance of surprise. Nor should we be unduly influenced by federal cases interpreting Federal Rule 54(c); the federal courts do not have our fact pleading requirement.

For these same reasons C.C.P. Art. 1703 does not establish a departure from the rule; it merely emphasizes the rule which is especially important in default judgments. As I have indicated, if such a departure was intended, the Code would have spelled out the same rather than leave the matter for strained interpretations of its various articles.

While I agree with the majority’s reduction of the trial judgment award to Nathan Wexler, I am of the opinion that Mrs. Wex-ler’s award for pain and suffering should be reduced to the amount for which she prayed. The reasons stated above and those cases cited in footnote 1 which were controlled by the provisions of the Code of Civil Procedure compel the latter conclusion.

Accordingly, to the extent expressed in the last preceding paragraph, I respectfully dissent.

      . Indeed, C.C.P. art. 861’s express requirement that “(w)hen items of special damage are claimed, they shall be specifically alleged” implies that when items of general damage are claimed, there is no need for alleging these with specificity.

      . The Supreme Court denied a writ of certiora-ri, with two justices dissenting on this point. 342 So.2d 218.

      . The propriety of this argument was questionable. One schooled in law would know that the amount of the demand for general damages is virtually meaningless. However, when counsel for defendants exhibited an official document filed in official court records as part of his argument, perhaps a jury of lay people could have been unduly influenced by the amount of the demand. (Nevertheless, the argument was cut off by the court shortly thereafter when counsel argued that he had only once before seen a petition that demanded less than $20,-000.00.)

      . Friedman Iron & Supply Co. v. J. B. Beaird Co., 222 La. 627, 63 So.2d 144; State Dept. of Highways v. Terrebonne, La.App., 349 So.2d 936, writ denied, La., 351 So.2d 166; Foreman v. General Elec. Credit Corp., La.App., 344 So.2d 1140; Watson v. Morrison, La.App., 340 So.2d 588; Jones v. Louisiana Dept. of Highways, La.App., 338 So.2d 343; Alumaglass Corp. v. Adm’x of Succession of Kendrick, La. App., 303 So.2d 911; Bewley Furniture Co., Inc. v. Maryland Casualty Co., La.App., 271 So.2d 346; Lawrence v. Recoulley, La.App., 235 So.2d 437; Sterkx v. Gravity Drainage Dist. No. 1 of Rapides Par., La.App., 214 So.2d 552; Wischan v. Brockhaus, La.App., 163 So.2d 572, affirmed, 247 La. 392, 171 So.2d 659.


author: LEMMON, Judge. GARRISON, Judge,

text:
    Leon P. WILLIAMS v. CONNORS STEEL COMPANY, John Doe “A”, John Doe “B”, John Doe “C”, Aetna Casualty and Surety Company, and H & W Steel Erectors, Inc.
    No. 9794.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1979.
    Rehearing Denied Feb. 15, 1979.
    Giraud, Cusimano & Verderame, Charles A. Verderame, New Orleans, for plaintiff-appellant.
    Adams & Reese, Edward J. Rice, Jr., New Orleans, for defendant-appellee, Aetna Cas. & Sur. Co.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   LEMMON, Judge.

Plaintiff filed suit against Ira Williams, an executive officer of the corporation which employed plaintiff as a steel worker, for damages resulting from injuries sustained on a construction project. After a trial on the merits judgment was rendered dismissing the suit, and plaintiff appealed.

Defendant Williams and his wife owned virtually all of the corporate stock, and he admitted he was “totally in charge” of the operation of the business. For one of the company projects Williams had ordered a shipment of steel reinforcing rods, which was to be delivered by truck. He visited the job site on the morning of the scheduled delivery, but left before the truck arrived. Williams had attempted to rent a crane for the purpose of unloading the truck, but was unable to secure one from his usual source, and he therefore instructed Gerald Cooley, the foreman on the job, to unload the truck by hand.

When the flatbed truck arrived, the steel was in bundles of various sizes, and the rods in each bundle were not necessarily of uniform length. Cooley and another employee placed “4-bys” (pieces of wood four-by-four inches square) against the side of the truck, intending to use pry bars to roll the bundles off the side of the truck, one at a time. The purpose of the 4-bys was to make the bundles fall away from the truck.

After Cooley and the other employee climbed onto the bed of the truck, one of the 4-bys fell. Plaintiff, who was on the ground performing other tasks at the job site, came over and realigned the 4-by. As plaintiff was walking away, the men on the truck began to roll a bundle of rods about 20 feet long off the side, and they then noticed for the first time that this bundle contained several rods about forty feet long that would strike plaintiff when the bundle fell off the truck. Unable to stop the rolling bundle, Cooley yelled a warning. Plaintiff began to run, but one of the longer rods “whipped around” and struck him in the head.

Plaintiff contends that defendant Williams was under a duty to utilize a method of unloading which was not unreasonably unsafe and that his failure to obtain a crane or to delegate that responsibility to his foreman caused this accident. However, while the evidence perhaps established that the accident would not have happened as it did if the unloading had been done by crane (since the movement of the crane probably could have been stopped when the workers noticed the longer rods extending from the bundle), the evidence fails to establish that the method of unloading by hand is unreasonably dangerous. Indeed, the only evidence is to the contrary.

Defendant Williams testified that unload-'-ing bundles of steel rods from a truck by hand is the general method for handling small or medium loads (the 12-ton load in this case being classified as a small load) and that a crane was generally used only for large loads and in “close” situations in which it was necessary to place bundles accurately for convenience of use. He further stated that unloading by crane was usually more economical, but that the risks of danger were at least equally as great as when the unloading was done by hand, noting that bundles unloaded by crane often move suddenly or swing around. There was absolutely no other evidence as to the safeness or unsafeness of either method of unloading.

Plaintiff correctly argues that the fact a certain method of procedure is generally used does not prove that the method is safe or reasonable. However, it was not defendant Williams’ burden to prove that unloading steel by hand is safe; rather, plaintiff had the burden to prove this method was unsafe.

The handling of bundles of steel obviously involves risks of injury, but the method of unloading the bundles by hand was not obviously unsafe. Moreover, no expert testimony or other evidence was offered to establish the method was unsafe. We conclude plaintiff simply failed to prove that Williams breached any duty to plaintiff by failing to provide a crane. Indeed, all of the evidence indicates that the accident occurred because the employees set the bundle of steel in motion before noticing there were rods in the bundle long enough to hit plaintiff and that the accident would not have happened if the employees, in the exercise of due care, had noticed the longer rods earlier and refrained from moving the bundle until plaintiff was completely out of danger.

The judgment is affirmed.

AFFIRMED.

GARRISON, J., dissents and assigns reasons.

GARRISON, Judge,

dissents and assigns reasons.

Upon concluding that the trial court’s finding of contributory negligence on the part of the plaintiff was manifestly erroneous and not supported by the record, we are then remitted to a consideration of the possible liability of the executive officer, defendant Ira Williams. In my view the record in this case — examined in the light of the applicable law — supports a finding of liability on the part of the defendant, Williams, with regard to the injuries sustained by the plaintiff, Leon Williams.

Defendant, Ira Williams, testified that he was totally in charge of H & W Steel Erectors and that he was familiar with the job his company was doing at Methodist Hospital.

It was his testimony that he had established no safety meetings for his employees and that there existed no safety program of any kind for his employees.

He felt that a crane was necessary for this operation because he made an effort to obtain one. Furthermore, as he testified, after failing to obtain one and prior to his departure from the scene, he did not delegate authority to his foreman to continue the effort to locate a crane. After ordering that the steel be unloaded by hand, he left the jobsite.

The record also indicated that Ira Williams knew that his men would be working in a very tight area and that he knew that the load of steel could normally be expected in bundles of all kinds, sizes and lengths. He even expected some bundles to weigh as much as two or three tons and to vary in mixed lengths of twenty-five to forty feet, without ever inspecting this load of steel, Ira Williams ordered his foreman to have it unloaded by hand and departed from the scene. It is significant that he admitted in his testimony that the accident would not have occurred had a crane been used.

Counsel for defendant/appellee has taken the position that unloading the steel by hand was a normal procedure. However, the fact that a practice is normal does not make it safe or nonnegligent. “While customary practices may be relevant in determining negligence, they are not conclusive or controlling in the judicial determination of whether unreasonable risks have resulted from the conduct in question.” Larned v. Wallace, 146 So.2d 434 (La.App. 3rd Cir. 1962), c.d. (La.1963); Guilbeau v. Liberty Mutual Insurance Co., 338 So.2d 600 (La. 1976).

It was also the position of defendant/ap-pellee that using a crane was no more safe than unloading tons of steel, of several different lengths, off the side of a truck by hand. This argument was based on the contention that no one could describe the method of unloading steel by hand as “unsafe” in as much as this was argued to be normal procedure. However, it is significant that Ira Williams, the foreman, Gerald Cooley and the employee, Elmer Davis, all testified that using a crane would have permitted control of the bundles of steel, whereas there was no corresponding control of these bundles of steel as they rolled off of the side of the truck while being unloaded by hand.

More specifically, the advantages of using a crane, as opposed to unloading steel rods by hand, as testified to by Ira Williams and foreman Gerald Cooley, are:

(1) The crane does not depend upon the force of gravity.
(2) As a crane would pick up a bundle of steel which could normally contain various lengths, the men would have an opportunity to find the longer pieces of steel and then guide them into place.
(3) The crane permits the men to control the bundles until they come to a rest and permits the men to control the location of the bundles.

It is clear that had a crane been used as Ira Williams initially intended, the removal of the steel from the truck would have been considerably safer than the unloading by hand which he subsequently ordered.

Under Canter v. Koehring, 283 So.2d 716 (La.1973), the Louisiana Supreme Court spelled out the requirements for bringing an action against an executive officer. These criteria, which are applicable to the instant case inasmuch as executive officer actions were still permissible at the time, were as follows:

(1) The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
(2) This duty is delegated by the principal or employer to the defendant.
(3) The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
(4) With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm. At 283 So.2d 721.

From Ira Williams own testimony, the first two criteria are met. He was fully in charge of the company’s operation, even down to the jobsite details, and he delegated to no one responsibilities for the safety of the men. With regard to the remaining criteria the evidence described above indicates that Ira Williams, in his capacity as an executive officer, exposed the plaintiff to an unreasonable risk of harm, as a result of which the injury occurred.

It is well settled that an employer is under a legal duty to provide his employees with safe working conditions. Simmons v. Travelers Insurance Company, 295 So.2d 550 (La.App. 3rd Cir. 1974) w.d., La., 299 So.2d 795 and 796; Walker v. Graham, 343 So.2d 1171 (La.App. 3rd Cir. 1977) w.r. 346 So.2d 213; Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir. 1970). Furthermore, the employer, and executive officers who have been delegated safety responsibility for the employees, have a duty to provide the employees with the proper equipment with which to work. Coco v. Winston Industries, supra.

A person in a supervisory capacity may be held liable where he negligently created or negligently failed to correct a dangerous condition of which he was or should have been aware under the circumstances. Fabre v. Travelers Insurance Company, 286 So.2d 459 (La.App. 1st Cir. 1973) w.r., La., 288 So.2d 646; Johnson v. Schneider, 271 So.2d 579 (La.App. 1st Cir. 1973).

Accordingly, I believe that the executive officer, Ira Williams, should have been held liable for the damages suffered by the plaintiff in the accident, and I respectfully dissent.


author: WATSON, Judge. GUIDRY, Judge,

text:
    Roy J. LaFLEUR et ux., Plaintiffs-Appellees, v. CITY OF VILLE PLATTE, Defendant-Appellant.
    No. 6676.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 12, 1979.

      Lewis & Lewis, John M. Shaw, Opelousas, for defendants-appellants.
    Fruge & Vidrine, Richard W. Vidrine, Ville Platte, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON, GUIDRY, CUTRER and DOUCET, JJ.
   WATSON, Judge.

Defendant herein, the City of Ville Platte, has appealed from a trial court judgment in favor of plaintiffs: Roy J. LaFleur was awarded $5,000 for his wife’s medical expenses and $1,312.50 for her loss of wages; Mary Lewis LaFleur was awarded $4,000 for her personal injuries. Consolidated with this suit for trial and appeal is our docket No. 6677, a suit by Dewey and Runnie Thibodeaux against the City for personal injuries sustained by Runnie Thi-bodeaux in the same accident. Dewey Thi-bodeaux was awarded $1,325.24 and his wife $1,800 in damages, and the defendant City has also appealed from the judgment in this suit.

FACTS

It is undisputed that plaintiffs, Mary LaFleur and Runnie Thibodeaux, fell from the top of a table at the Ville Platte Community Center while attending a bi-centennial wagon train celebration sponsored by the City of Ville Platte’s Bi-Centennial Committee on January 30, 1976. Plaintiffs contend that a leg of the table broke and defendant contends that they merely fell. The trial court found as a fact that one leg of the table collapsed and the evidence establishes with reasonable certainty that a leg of the table broke.

Runnie Thibodeaux testified that the table slipped out from under them shortly after they got on it. She faintly remembered seeing a jagged edge where the leg had been broken off from the frame and completely severed from the table. Mary LaFleur testified that the table fell to the floor very suddenly. William A. Guidry, Chairman of the Ville Platte Bi-Centennial Committee, who was acting as master of ceremonies, testified that a table collapsed, injuring two ladies. He observed that the table was down but did not actually see what happened. The only opposing testimony was that of Rodney Fontenot, an employee of the City of Ville Platte and manager of the city park where the community center is located, who said that none of the legs on the community center’s thirty tables were broken the next morning. The testimony is not in direct conflict, since Fontenot was not on the scene until the next day, and the leg on the homemade table could have been nailed back in place before he saw it.

It is established that other people present were sitting and standing on the tables. A photograph at TR. 29 shows people standing on tables against the wall. Ms. Thibo-deaux, a kindergarten teacher, testified that the majority of people in the center were sitting or standing on the tables. All testified that master of ceremonies Guidry told everyone present to make themselves comfortable and place themselves so they could see what was going on. Ms. Thibo-deaux said that when she arrived at the center there were four chairs on the table, occupied by Helen Dardeau Kyle, her daughter, Nicole, Sherry Vidrine, and Sis Rivers. Ms. Thibodeaux leaned on the table until the conclusion of a number by the Cotton Pickers, involving one of Ms. Kyle’s daughters, and got up on the table after these four left at the conclusion of the daughter’s performance. Ms. Thibodeaux testified that the table appeared strong and sturdy and similar ones were supporting heavy people in the hall. Ms. LaFleur, a registered nurse, testified that she had no reason to think the table was unsafe and she decided to get up on the table when the chairs on top were vacated by Madams Kyle, Vidrine and Rivers. Ms. LaFleur was described as obese; she weighed approximately 188 pounds. Ms. Thibodeaux was of medium size; she weighed between 150 and 155 pounds.

M. C. Guidry testified that the room was packed because the event was scheduled to be held outside and had been moved inside.

The tables were built by one of Rodney Fontenot’s assistants according to his design. They were 8 feet in length, 32 inches high, and 2 feet wide. Each had four legs consisting of two by fours cut on a slant, and the top was of number 1 pine. There was some two by four bracing under the table top, but none at the bottom of the table.

Ms. LaFleur, age 41, was injured on the right side of the chest, and the contusion caused an infection, described as pleurisy or bronchitis and probably a form of pneumonia. She was hospitalized for seven days as a result. Ms. LaFleur also sprained her left wrist and received a lumbodorsal strain with muscle spasms.

Ms. Thibodeaux, age 39, suffered a cervical strain and a contusion of the occipital area of the head.

The amounts awarded are not at issue in the appeal.

Issues:

The decisive issues, at trial and on appeal, are fault on the part of the City and fault on the part of plaintiffs.

Conclusion:

The fact that Ms. LaFleur and Ms. Thibo-deaux fell simultaneously indicates that a leg of the table gave way, probably as a result of a defect in the joinder between the leg and the top. This defect resulted in the collapse of the table, which caused plaintiffs’ injuries.

The City, as owner and custodian of the table, is at fault and responsible for the damages caused by its collapse, if the table posed an unreasonable risk of harm to plaintiffs and others. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In considering whether this table presented an unreasonable risk of injury to the public, it is first apparent that a table should not collapse under usual circumstances. The City’s duty was to make the premises of the Community Center reasonably safe for those present. Carter v. Salter, La.App., 351 So.2d 312, writ denied, La., 352 So.2d 1045. This duty required an effort to discover any hidden dangers and then either correcting them or warning of their existence. There is no evidence that the tables in the community center were ever inspected for defects. No warning was given of the possibility of a concealed defect in the tables which made sitting or standing on them dangerous. Natal v. Phoenix Assurance Co. of New York, 305 So.2d 438 (La.,1975). Since this table was not a folding type but an eight foot platform, the public’s use of it for sitting and standing could reasonably have been foreseen by the City. It is significant that this was a table in a park pavilion and not a household table in a dining room or kitchen. Use of park tables for standing or sitting can hardly be said to be extraordinary or unexpected. The table’s sturdy appearance was a deceptive invitation, which gave the City a duty to make it as serviceable as it appeared. The combined weight of Ms. LaFleur and Ms. Thibodeaux was not an excessive load for a large table constructed of two by fours; its collapse can not be attributed to its use as a platform and must have resulted from defective design or construction. The City of Ville Platte was thus at fault in maintaining a defective table, which created an unreasonable risk of harm to the public.

The remaining issue is fault on the part of plaintiffs in using the table as a viewing platform. The trial court concluded that, under the peculiar circumstances here, plaintiffs were not negligent in climbing on top of the table.

Conduct is not negligent or faulty if it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances. Smolinski v. Taulli, 276 So.2d 286 (La., 1973). Here, a large number of those present in the community center had used the tables for a better view of the proceedings. The table in question had been occupied safely, without incident, by a group of four persons prior to plaintiffs, and plaintiffs had no reason to anticipate its collapse. Therefore, we agree with the trial court that plaintiffs’ conduct was not unreasonable or below the standard to which they should have conformed for their own protection.

Plaintiffs did not knowingly and voluntarily assume the risk causing the injury. McLaughlin v. Home Indemn. Ins. Co., 361 So.2d 1227 (La.App. 1 Cir. 1978). In the case of a light, insubstantial table, collapse under these circumstances might be anticipated. However, here, Ms. LaFleur and Ms. Thibodeaux assumed only the risk that would ordinarily be encountered when standing or sitting on a heavy table, that of falling. Rosenberger v. Central La. Dist. Livestock Show, Inc., 312 So.2d 300 (La., 1975). Compare Levert v. Travelers Indemnity Company, 140 So.2d 811 (La.App. 3 Cir. 1962). Plaintiffs had no reason to foresee that the table leg would break and that the table would collapse beneath them. Plaintiffs, therefore, were not at fault in using the table as a viewing platform.

For the foregoing reasons, the judgment of the trial court herein is affirmed at the cost of defendant-appellant.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

DOMENGEAUX, J., dissents for the reasons assigned by GUIDRY, J., and alternatively, that the plaintiff assumed the risk.

GUIDRY, Judge,

dissenting.

I am unable to agree with my brethren of the majority that the plaintiffs’ injuries were occasioned as a result of fault on the part of the City of Ville Platte.

In my view a determination as to whether, under the circumstances of this case, defendant bears any responsibility to plaintiffs for their injuries must be reached by application of the duty-risk inquiry as espoused in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). The first inquiry is whether the defendant’s conduct complained of was a “cause in fact” of plaintiffs’ injuries. There is little doubt that the accident would not have occurred but for the city’s maintenance of a table in the community center which would collapse while persons of a combined weight of 350 pounds were seated thereon. It can therefore be said that the defendant’s conduct in maintaining such a table in its community center was a cause in fact of the accident. A finding that defendant’s conduct was a cause in fact of injury does not, however establish liability. In addition to such finding, in order to establish actionable negligence, the plaintiffs are required to establish that defendant breached a legal duty imposed to protect plaintiffs against the particular risk which caused their injuries. In making this determination the following inquiries are made:

1. What, if any, duty was owed by the city to the plaintiffs?

2. Was there a breach of this duty?

3. Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

I conclude from the record in this case that there was no breach of duty by the city. The city is held to the same degree of care in the performance of its obligations arising from ownership as any other person, i. e., to maintain recreational buildings and appliances therein commensurate with ordinary and reasonable care under the circumstances and to discover any unreasonably dangerous condition on the premises and either correct the condition or warn of its existence. Godfrey v. Baton Rouge Recreation & Parks Com’n, 213 So.2d 109 (La.App. 1st Cir. 1968). See also Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La. 1976). The city’s duty in this case was to maintain the tables therein safe for use as tables, i. e., dining, meetings, etc. There is no evidence in the record indicating that the tables in the community center were constructed or maintained by the city for use other than as ordinary tables, i. e., to receive food, to place books and papers thereon at meetings, etc. This being so, the city’s duty was to maintain the tables safe while being used as intended. There is absolutely no evidence in the record to support a finding that the table in question was not entirely and perfectly safe while being used for its intended purpose. The only evidence in the record is that it was not safe for use as a grandstand to hold chairs and people, however, the city did not construct nor maintain it for such purpose. I would thus find that the table in question did not present any unreasonably dangerous condition, when used for its intended purpose; the city had no duty to warn plaintiffs that the table was not suited for use as a grandstand for such was as easily observable to an individual in the exercise of reasonable care as it was to the city; and, therefore, there was no breach of duty on the part of the city.

In Manget v. Seidenberg, 230 So.2d 299 (La.App.1970) our brethren of the Fourth Circuit reached a similar result when presented a claim for personal injury by a patron at a Mardi Gras ball who was injured when he fell against and through a decorative balustrade. In denying recovery the court stated:

“It is basic to the law of torts 1 * * * that, in the absence of some duty which has been neglected or violated, there can be no actionable negligence; and hence, in order that a person may have a cause of action on account of an injury to person or property resulting from negligence, it is necessary that the act or omission complained of should have involved some breach of duty owed to him, or to the person whom he represents, by the person of whose negligence he complains.’ Payton v. St. John, La.App., 188 So.2d 647 and authorities cited therein.
“. . . Since the balustrade was designed to serve no purpose other than that of decoration, and all parties understood this to be the case, we cannot say that Seidenberg was negligent in not building it with sufficient strength to support the weight of plaintiff’s body. A person employed to decorate a place of amusement cannot be held to owe those persons using the facilities the duty of making each decorative item that he erects so strong and sturdy as to be capable of supporting the weight of a grown man. To do so would certainly place an unreasonable burden on those engaged in the art of decoration, and would ignore the common sense of those enjoying the decoration.”

I find the situation presented by these consolidated cases like that presented in Manget, supra.

Having determined that the defendant, city, breached no duty owed to the plaintiffs, I would find it unnecessary to consider the issues as to whether or not plaintiffs’, under the circumstances, were con-tributorily negligent or assumed the risk. However, in this regard, I note that my esteemed brethren of the majority find that plaintiffs’ conduct was not unreasonable or below the standard to which they should have conformed for their own protection because others present at the celebration were also standing or sitting on the tables which had been placed along the walls. In my view it is error to judge reasonableness or unreasonableness of conduct on the basis of the conduct of others present at the same function. This is so because the conduct of others present, as in this case, may fall below the standard of conduct to which a plaintiff must conform for his own protection, i. e., that of a reasonable man under like circumstances.

For the foregoing reasons I respectfully dissent.

      . In the case of a collapsing chair, there is not only fault but an inference of negligence. Dillman v. Nobles, 351 So.2d 210 (La.App. 4 Cir. 1977); Pear v. Labiche’s, Inc., 301 So.2d 336 (La., 1975), and Glover v. Poydras, 314 So.2d 417 (La.App. 4 Cir. 1975) writ denied 318 So.2d 49 (La.)


author: WATSON, Judge.

text:
    Dewey THIBODEAUX et ux., Plaintiffs-Appellees, v. CITY OF VILLE PLATTE, Defendant-Appellant.
    No. 6677.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 12, 1979.

      Lewis & Lewis, John M. Shaw, Opelousas, for defendant-appellant.
    Fruge & Vidrine, Richard W. Vidrine, Ville Platte, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON, GUIDRY, CUTRER and DOUCET, JJ.
   WATSON, Judge.

This matter was consolidated for trial and appeal with our docket number 6676, LaFleur et ux. v. City of Ville Platte, 367 So.2d 121 (La.App.). For the reasons assigned in our docket Number 6676, the judgment of the trial court herein is affirmed at the cost of defendant-appellant, City of Ville Platte.

AFFIRMED.

GUIDRY, J., dissents for the reasons assigned in No. 6676, LaFleur v. City of Ville Platte, 367 So.2d 121 (La.App.).

DOMENGEAUX, J., dissents for the reasons assigned by GUIDRY, J., and alternatively that the plaintiffs assumed the risk.