author: GUIDRY, Judge. WATSON, Judge,

text:
    Douglas FOWLER et al., Plaintiffs-Appellees, v. WESTERN UNION TELEGRAPH CO. et al., Defendants-Appellants.
    No. 6427.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Writ Refused June 2, 1978.

      Breazeale, Sachse & Wilson, by Maurice J. Wilson, Baton Rouge, for defendants-appellants.
    Kelly & Ware, Donald G. Kelly and Robert L. Salim, Natchitoches, Boagni & Ge-novese, by James T. Genovese, Opelousas, for plaintiffs-appellees.
    O’Keefe, O’Keefe & Berrigan, by E. John Litchfield, New Orleans, for int. appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Douglas Fowler, his wife, Abbie Fowler and Fred Schlesinger sustained personal injuries in a vehicular collision which occurred on December 4, 1975 when their automobile driven by Mr. Schlesinger, was struck head-on by a vehicle being operated by an employee of defendant, Western Union Telegraph Company (Western Union). Mrs. Fowler died on July 20, 1976 from severe personal injuries and complications attributable to the accident.

In this suit, Douglas Fowler seeks recovery for personal injuries and medical expenses as well as damages for the wrongful death of his wife and for her conscious pain and suffering from the time of the accident until her death.

Jerry Fowler and Douglas Fowler, Jr., the adult children of Douglas and Abbie Fowler, seek damages for the wrongful death of their mother and for her conscious pain and suffering from the date of injury until her death.

Fred Schlesinger seeks recovery for personal injuries, medical expenses, lost wages and loss of sick leave incurred as a result of the accident.

Houston General Insurance Company (Houston General), the workmen’s compensation insurer of the State of Louisiana, intervened in the suit, alleging that Douglas Fowler and Fred Schlesinger were engaged in the course and scope of their employment with the State of Louisiana at the time of the accident. Houston General further alleged payment, of certain benefits and medical expenses in the amount of $7,956.16 to Douglas Fowler and $971.00 to Fred Schlesinger, and prayed that it be allowed recovery of these sums, together with any additional sums that may be paid in the future, by preference and priority out of any judgment awarded in favor of these plaintiffs.

Western Union admitted liability, leaving only the issue of quantum to be decided by the trial court.

The parties stipulated to Houston General’s subrogation rights to the aforementioned sums as set forth above. Plaintiffs’ medical expenses were also stipulated to be as follows:

Mrs. Abbie Fowler_$67,565.58
Douglas Fowler_ 4,016.75
Fred Schlesinger _ 2,588.91

Following a trial limited to the issue of quantum, the trial judge made the following awards:

(1) In favor of Douglas Fowler for his individual injuries in the amount of $15,-000.00 plus medical expenses in the amount of $4,016.75;
(2) In favor of Douglas Fowler for medical expenses incurred on behalf of his deceased wife in the amount of $67,-565.58;
(3) In favor of Douglas Fowler for the loss of love and affection of his deceased wife in the amount of $90,000.00;
(4) In favor of Douglas Fowler, Douglas Fowler, Jr. and Jerry Fowler for physical injuries and conscious pain and suffering sustained by Mrs. Abbie Fowler in the amount of $500,000.00;
(5) In favor of Douglas Fowler, Jr. for the wrongful death of his mother in the amount of $25,000.00;
(6) In favor of Jerry Fowler for the wrongful death of his mother in the amount of $25,000.00; and,
(7) In favor of Fred Schlesinger for his individual injuries in the amount of $15,-000.00 plus medical expenses in the amount of $2,588.91.

The judgment recognized Houston General’s subrogation rights to the extent prayed for in its petition of intervention. Western Union was cast for all costs.

Appellant does not contest the general damage award of $15,000.00 in favor of Douglas Fowler. Accordingly, we will not disturb this portion of the trial court’s judgment as our review of the record discloses no abuse of discretion in the quantum of this award. We likewise find no error in the trial court’s award of medical expenses in accordance with the stipulation contained in the record.

However, appellant does assign error to the remaining awards, contending that the trial judge abused his judicial discretion in awarding damages which are excessive and punitive. Plaintiffs have not appealed nor answered the appeal.

CONSCIOUS PAIN AND SUFFERING ENDURED BY MRS. ABBIE FOWLER

Mrs. Fowler was admitted to Opelousas General Hospital on December 4, 1975 for treatment of severe injuries sustained in the accident. She was hospitalized there until her transfer in April, 1976 to Natchi-toches Parish Hospital where she remained until her death on July 19, 1976. During the approximately seven and one-half months from the accident until death, Mrs. Fowler was essentially bedridden. Her injuries caused her intense pain and suffering during this period of time for which the trial judge awarded the sum of $500,000.00.

The trial judge summarized Mrs. Fowler’s injuries in his written reasons which we quote:

“Dr. Granger (Surgeon):
The Doctor saw her first in the Emergency Room on December 4, 1975. She had severe pain in her left leg. She was a 69 year old, white, female. She was well oriented. She had a fracture of her right forehead. She had a history of diabetes, mellitus, and arteriosclerotic heart disease. She had previously had two heart attacks. Her diabetes was being controlled by diet, but she was not taking insulin shots. She was given insulin in the hospital because of a flare up. She had been under a doctor’s care and medication for her heart problem. Her hip fracture was characterized as an ‘unstable low interchanteric fracture of her right hip and a chip fracture of the right calcaneal cuboid joint.’ The orthopedist recommended an open reduction, after medical evaluation for surgery. She had an open reduction and internal fixation on 12/5/75 by Dr. Lazaro, an orthopedist. The doctor returned on the Monday following and ‘she was in a dull sensorial state’. She would emerge and recede from reality. She was hospitalized from 12/4/75 to 4/27/76 at Opelousas. During her hospital stay, she fibrillated. She used an indwelling catheter during hospitalization. Urine cultures showed Pseu-domonas, which cleared at discharge, and the bardex was removed. She had trouble with her gastrointestinal system, with both diarrhea and intermittant impac-tions. She had problems, also, with her diabetes mellitus. She exhibited signs of underlying depression and on occasion became acutely agitated. She also had an adrenal insufficiency secondary to the prolonged stress. She may have had preexisting or existing Addison’s disease. This was treated with steroids. She suffered damage and infection in the area of the reduction site of her hip. On 2/27/76 she was operated on for acute cholecysti-tis, and had to have a gangrenous gall bladder removed. As a result she had to have a tube in the duct between the liver and the intestine (common bile duct) which remained for 14 days and was then removed. She had blunt chest and blunt abdominal trauma. Her gall bladder problem was acute. She apparently recovered from this surgery. She died about the middle of July, 1976. The doctor characterized her hospital stay as ‘stormy’. Her discharge from the Opel-ousas Hospital on 4/27/76 was simply a transfer to another hospital in Natchi-toches, her home area. At this time she was stable emough (sic) to be moved, but not stable enough to be discharged from the hospital. By description, she had mild contusions over her entire body. Her concussion had about a three day effect. She took 3 or 4 weeks to recover from the gall bladder operation, in comparison with a normal 10 day period,— (sic) that is, to the same state of progress. She was bedridden during her hospital stay. She was constantly on medication for pain during her hospitalization. (Note the Discharge Summaries at the end of Dr. Granger’s Deposition)
Dr. McCartney (sic) (Family Medicine):
The Doctor first saw the patient on December 4, 1975 at the Hospital. She was unconscious for a while, and then complained of pain in her right hip. Dr. Granger and Dr. Gaar gave her emergency treatment. Dr. McCartney (sic) evaluated the cardiovascular status. She gave a history of a heart attack in November of 1974, and was taking medication. She ' was also'a mild diabetic and taking medicine. Her right lower extremity was in traction. She had some tachycardia. After her surgery she fibrillated as well as experienced tachycardia, — (sic) more of an arhythmia. She had wound complications, — (sic) it became infected. She had a second closure in surgery. She developed urinary tract infection. She had some diabetic reaction. She exhibited' emotional instability, and at times was extremely withdrawn. At times she was agitated. She was given drugs for this. She had endocrine changes (Borderline reserve adrenal function. Whether this was pre-existing is problematic). Her mental state was one reason for eventual transfer to Natchitoches. She also had an acute gall bladder attack, which required surgery. The Doctor relates everything to the accident. She had a low threshold of pain. The Doctor did not see her after discharge.
Dr. Lazaro (Orthopedist)
Saw her first in the hospital. The Doctor saw her with Dr. Gaar. They were consulted by Dr. Granger. She had a fractured hip. The x-rays demonstrated an unstable intertrochanteric fracture of the right hip, and also a chip fracture of the calcaneo-cuboid articulation, which is a small joint in the right foot. Surgery was performed on 12/5/75. She became disoriented and confused. She developed infection. The Doctor kept the wound open with packing so it would heal from the inside. She had a septic gall bladder which required surgery. During the gall bladder operation, the Doctor closed the hip wound, but the infection came back, and he had to go back to packing. When she left the hospital to go to Natchitoches on 4/23/76, the wound had not healed. He thinks the diabetes contributed to this. She never became ambulatory. She was in constant pain. The Doctor characterized the pain as severe. The death of the patient was trauma connected. The Doctor did not see her after she left the hospital in Opelousas.
Dr. Thomas (General Practitioner)
Saw the patient when she was admitted to the Natchitoches Parish Hospital on 4/27/76. Her condition was very poor. She was comatose, and diabetic. She was completely bedridden, and was suffering effects of an adrenal gland depression. There was still a vacuum or opening in her hip. She was heavily sedated with psychotrophic drugs. He consulted a psychiatrist with reference to removal of the psychotrophic drugs, and they were stopped. Cortisones were stopped. Following this, about June 24, 1976, she became conscious, lucid and communicative for about a week. Her hip was still unhealed. She then suffered a stroke on July 19, 1976. After that she lapsed into a coma and died on July 20, 1976. The hip never healed. On July 16,1976, she had a fainting spell and vomited blood. He summarizes as follows:
‘A. In my opinion, I feel that this lady, who was chronically ill to begin with, she had diabetes and she had arteriosclerotic heart disease, she suffered severe trauma in an automobile accident, in which she suffered a fracture of the right hip'. She was subjected to surgery for the repair of this. Shortly thereafter she suffered an attack of acute gall bladder. And then as a result of the stress due to the trauma, developed adrenal gland depression or suppression or shut down, which further worsened her condition and necessitated the use of large doses of Cortisone to maintain her. During the course of which her diabetes was in and out of control. She developed a duodenal ulcer, or stomach ulcer, which is presumed, because of the upper GI bleeding, the gastrointestinal tract bleeding. She also, as a result of the trauma and the stress, suffered a kidney shutdown, which caused her to develop uremia. She also developed a thrombophlebitis, which is inflammation of the veins in her leg, with possible clot formation there. She had an accentuation of the normal degenerative processes that go on in an elderly person. She suffered severe mental depression. She just had more than anybody could possibly bear and live that long. And then she ultimately had a stroke and died. I think that’s about the sum total of her situation.’ ”

Appellant strenuously argues that the award of $500,000.00 to the husband and children of Mrs. Fowler for seven and one-half months pain and suffering is completely unreasonable and punitive in nature. Plaintiffs ask that the award be affirmed in its entirety, pointing to.defendant’s ability to pay, Barrett v. State Farm Mutual Automobile Insurance Company, 236 So.2d 900 (La.App. 3rd Cir. 1970), and to the magnitude of suffering presented in this case.

While a defendant’s ability to respond in damages may properly be considered in making an award, it is well settled that damage awards in tort actions are compensatory in nature and must be reasonable. Punitive damages are not allowed in this State in the absence of specific statutory provision. Universal C. I. T. Credit Corporation v. Jones, 47 So.2d 359 (La.App. 2nd Cir. 1950); Post v. Rodrigue, 205 So.2d 67 (La.App. 4th Cir. 1967).

In considering the propriety of the awards in this case, we are guided by certain legal principles governing appellate review of damage awards. It is well settled that before an appellate court may disturb an award made by a trial court, an abuse of discretion by the trier of fact must be clearly revealed by the record. Even upon a showing of a clear abuse of discretion, an appellate court is not at liberty to render what it would consider to be an appropriate award under the circumstances, but instead must either raise or lower the award to the lowest or highest point which the trier of fact could reasonably have awarded. Coco v. Winston Industries, 341 So.2d 332 (La.1976); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977) and cases therein cited.

Louisiana intermediate appellate courts, in the exercise of their judicial functions, are constitutionally mandated to review general damage awards. LSA-Const. Art. 5 § 10(B); Temple v. Liberty Ins. Co., 330 So.2d 891 (La.1976). Our review of such awards, however, is severely limited by the Coco-Schexnayder line of cases which has, in effect, clothed trial court quantum awards with a “presumption of correctness” which is rebuttable only by a clear showing of an abuse of discretion. Thus, appellate courts are often faced with the perplexing problem of according appellant his constitutional right to a just and adequate review of a quantum award, while at the same time remaining within the jurisprudential guidelines set forth above. With all due respect to the Supreme Court, we have some doubt as to whether or not this practice allows an appellant the full and adequate review to which he is entitled under our Constitution.

As we proceed to determine whether or not a clear abuse of discretion is evidenced by the record in the instant case, we fully realize the difficulty of the task facing both trial and appellate courts in attempting to value human pain and suffering in terms of dollars and cents. Pain and suffering, by its very nature, is not susceptible of any precise monetary valuation. Far too often, no amount of money could possibly compensate a victim for the agony which he has endured. Even so, it is the solemn duty of courts to attempt to do the impossible; to somehow arrive at a monetary sum that will hopefully indemnify the victim for his shattered life, and yet not be so harsh as to constitute a punitive award.

Able counsel for appellant, in his brief before this court, refers us to numerous cases in which sums considerably less than that allowed by the trial court in the instant case were awarded. While other reported decisions provide no concrete standard for the assessment of damages, similar cases may serve as aids for determining if an abuse of discretion is presented. Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974).

However, we draw only meager assistance from these cases. Much can be said for the proposition that no two cases are exactly alike. Indeed, the Supreme Court, in Coco, supra, cautioned us against placing too much reliance on these decisions. Words on a printed page cannot reflect the varying pain thresholds presented in different persons. Injury which causes excruciating pain to one individual may have a milder effect on another person who has a higher tolerance of pain. These and other variables, such as the length of the period of suffering, age and general physical condition of the victim and the degree of consciousness only further compound the difficulty of any attempt of reconciling these cases.

The phrase “abuse of discretion” is at best an elusive term that is subject to varying interpretations. We note that in Coco, supra, the Supreme Court stated that a determination as to whether or not an abuse of discretion exists is a “judgment call”. Considering the evidence in the record, we must conclude that the award of one-half million dollars for seven and one-half months of pain and suffering is so excessive as to constitute a clear abuse of discretion. We are not indifferent to the acute pain and suffering endured by Mrs. Fowler. Most assuredly, no one could be found who would willingly undergo such an ordeal even for the payment of that amount of money. However, fairness to the defendant necessarily requires that damage awards have reasonable limits. This award exceeds those limits.

Having found an abuse of discretion on the part of the trier of fact, we must now determine the highest amount which could have reasonably bee.n awarded by the trial court after interpreting the evidence from the point of view most favorable to plaintiffs. Schexnayder v. Carpenter, supra. Our examination of the record reveals that the evidence supports an award in the $100,000.00 to $200,000.00 range. ' Accordingly, we will reduce the award for Mrs. Fowler’s pain and suffering to $200,000.00 which sum we consider to be the highest amount which the trial judge could reasonably have awarded.

WRONGFUL DEATH OF MRS. FOWLER'

The trial court awarded Mr. Fowler the sum of $90,000.00 for the loss of love and affection of his deceased wife. The two adult sons of Mrs. Fowler, Jerry Fowler and Douglas Fowler, Jr., were each awarded the sum of $25,000.00 for the loss of their mother. Appellant contends that these awards aré excessive and should be reduced.

Turning first to the $90,000.00 award to Mr. Fowler, the record reveals that at the time of her death, Abbie and Douglas Fowler had been husband and wife for forty-one years. After retiring from a teaching position in the public school system, Mrs. Fowler had become her husband’s constant companion, often accompanying him to various meetings and conventions. She was always very active in her husband’s election campaigns. They enjoyed a very close relationship with the two children born of their marriage, often taking trips to visit them. They were a happy couple, both content to spend the rest of their natural lives with each other. The loss of his wife caused Mr. Fowler, an active person prior to the accident, to become withdrawn and depressed.

Considering the close bonds existing between this couple, we are unable to find an abuse of discretion in this award. Our conclusion is supported by Aymond v. Department of Highways, 333 So.2d 383 (La.App. 3rd Cir. 1976, writ refused), in which this Court affirmed an award of $80,000.00 in favor of a widow for the loss of love, affection, mental pain and suffering for her 37 year old husband. In Cacibauda v. Gaiennie, 305 So.2d 572 (La.App. 4th Cir. 1974), the Fourth Circuit affirmed an award of $95,000.00 for the wrongful death of a husband.

The trial judge, in written reasons, remarked: “The Husband, being 70 at trial, does not have the resiliency of youth to accommodate to the loss of his wife. Nor, does he have' the youth and time left to search for, find and accommodate to a second wife, and, in so doing to minimize his loss . . . Not only the evidence adduced, but the demeanor and the tears of the Plaintiff husband on the witness stand bear witness to the great loss of the Husband”.

Considering the evidence in the record interpreted in the light most favorable to plaintiff, we cannot say that an award of $90,000.00 to Mr. Fowler for the loss of love and affection of his deceased wife is excessive.

Appellant argues that the award of $25,000.00 to each of the adult children of Mrs. Fowler is excessive by at least $5,000.00. A reduction of each award to $20,000.00 is suggested. Rodriguez v. Trebitz et al., 304 So.2d 396 (La.App. 1st Cir. 1974). Considering the close personal relationship which existed between Mrs. Fowler and her two sons, we find no manifest error in the trial court’s award of $25,000.00 to each of them.

FRED SCHLESINGER

Following the accident, Fred Schlesinger was admitted to Opelousas General Hospital for treatment of his injuries. He was discharged about a week later. We quote from the trial judge’s summary of Mr. Schlesinger’s injuries:

“Dr. Granger (Surgeon):
The Doctor saw him 12/4/75 at 12:45 P.M. He was a 41 year old, white, male. Dazed at the accident, but oriented as to time, place and person, and in mild distress when seen. He had a deep lacera tion of the forehead which extended to the cranium. He also had chest pains, and thought the steering wheel had hit his chest. The Doctor called in Dr. McCartney (sic) for cardiopulmonary evaluation. The two doctors felt he had a pulmonary contusion and a ‘probable’ cardiac contusion. He stayed in the hospital from 12/4/75 to 12/10/75. The Doctors’ final diagnosis was: (a) contusion of the chest (b) fracture of the left sixth and seventh ribs (c) a laceration of the forehead which was sutured (d) a concussion (e) multiple soft tissue injuries. The Doctor last saw the patient on 4/5/76. He saw him as an outpatient on 1/13/76 and 1/22/76, and, as stated, on 4/5/76. It takes about 6 to 8 weeks for ribs to heal (x-rays taken on 4/5/76 confirms this). He was able to resume full work on 4/5/76, and was able to resume part-time work on February 2, 1976. On January 13, 1976, Dr. Granger and Dr. McCartney (sic) checked and found ‘good heart sounds with no murmurs or click on evaluation.’ The concussion sustained was mild, but he had some lapse for about 4 days. The Doctor felt the patient definitely had a cardiac contusion, but no irregularities, no heart murmurs, and complete recovery. There was no residual from the rib injury. He came close to pneumonia, so he was given positive pressure breathing.
Dr. McCarthy (a Specialist in the field of Family Medicine):
The Doctor first saw Mr. Schlesinger in the emergency room at 7:00 P.M. on December 4, 1975. The history elicited was that Mr. Schlesinger was rendered unconscious for a period of time. Upon returning to consciousness, he had pain in the face and chest. The Doctor saw an abrasion and dressing on his forehead. Contusions were noted on the chest. He had deep breathing pains. He had fractures of the sixth and seventh ribs. He had a abrasion on the sternum. He was observed for possible cardiac or pulmonary contusion. Dr. Granger took care of a deep laceration of the forehead. He had a concussion (mild). The Doctor saw him in his office 12/18/75. He felt the tests did not show myocardial or pulmonary contusion. He did develop atelecta-sis and took antibiotics. It took several weeks for him to be pain free. He was hospitalized from 12/4/75 to 12/11/75. He had some discomfort and limitations of activity at discharge. The Doctor referred the patient back to Dr. Granger. The Doctor felt disability to be about 6 to 8 weeks.
Dr. Azar (EENT)
The Doctor made his examination 12/5/75. The patient had difficulty breathing through his nose. He had two black eyes. He had been hit on the dor-sum of the nose. There was no evidence of nasal fracture. The Doctor felt all of this was transitory and should clear up in several weeks. The Doctor saw him several times at the office and discharged him September 28, 1976. His nose was swollen and stopped up (partially). It finally got all right. The Doctor described the injury as causing more discomfort rather than pain. The Doctor sent the patient to Doctor Bergeron for allergy tests in the Spring of 1976. The congestion was lasting too long, and that is why the Doctor sent him to Dr. Bergeron.”

Mr. Schlesinger was confined at home after his discharge from the hospital, and performed only light duties when he first returned to work around January 26, 1976. He still complains of pain in his left ankle and states that he can’t get around like he used to.

A total of 256 hours of sick leave, having a monetary value of $1,711.76, were charged against Mr. Schlesinger during the period from December 6, 1975 through January 26, 1976. This sick leave, had it not been utilized, would have been left to accumulate until Mr. Schlesinger’s retirement, where it would have increased his retirement pay.

The trial judge awarded Mr. Schlesinger the sum of $15,000.00 as general damages, apparently intending this amount to also include reimbursement of the value of the sick leave charged against him.

Appellant contends that the award of $15,000.00 as general damages is excessive and should be reduced to $6,000.00 and further that no award should be allowed for Mr. Schlesinger’s sick leave, as such an award would be too speculative.

Although we consider the general damage award to Mr. Schlesinger high we cannot conclude that it does in fact exceed the highest amount which could have been awarded under a reasonable evaluation of the evidence. Accordingly, the award is not manifestly erroneous and will not be disturbed.

We find no merit in appellant’s contention that recovery of Mr. Schlesinger’s loss of sick leave should be disallowed because of its speculative nature. Appellant argues that this loss will not be sustained until Mr. Schlesinger becomes eligible to retire at some future time. If he does not live to retirement age, he will sustain no loss. Thus, recovery for this alleged' item of damages should not be allowed as there is no proof that this loss will become a reality in the future. In answering appellant’s contention, we need only state that an award for this item of damages is no more speculative than awards for future loss of wages, future pain and suffering, and future medical expenses, all of which are recoverable under our law. We find sufficient proof in the record that Mr. Schlesinger will sustain this loss upon retirement. Accordingly, we will allow recovery for his loss of sick leave.

For the above and foregoing reasons, the award of $500,000.00 in favor of Douglas Fowler, Douglas Fowler Jr., and Jerry Fowler for the physical injuries and conscious pain and suffering sustained by Mrs. Fowler is amended and reduced to the sum of $200,000.00. In all other respects, the judgment of the trial court is affirmed at the cost of appellant.

AMENDED AND AFFIRMED.

WATSON, J., concurs and assigns written reasons.

WATSON, Judge,

concurring;

While I am extremely reluctant to alter the quantum award entered by the trier of fact, I agree that the half million dollar award is clearly an abuse of discretion. Therefore, I agree to the reduction to $200,-000.

I note, however, my disagreement with the comments of the majority opinion critical of Coco and Schexnayder. I find no conflict between the jurisprudence and the constitutional duties of the intermediate appellate courts. The appellant is entitled to a review and not a re-trial under the “proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Company, 283 So.2d 716 at 724 (La., 1973).

I respectfully concur in the result.

      . This award was apparently intended by the trial judge to include reimbursement to Mr. Schlesinger of the sum of $1,711.76 which amount represents the value of 256 hours of sick leave that were charged to him from December 6, 1975 through January 26, 1976.

      . This appears to be an error by the trial court. The record reveals that Mrs. Fowler suffered a hematoma of her right forehead and a fracture of her right hip.

      . Compare Carollo v. Wilson, 353 So.2d 249, of the docket of the Supreme Court of Louisiana.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    J. B. WILLIS, Plaintiff and Appellant, v. SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION, Defendant and Appellee.
    No. 6442.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.

      J. B. Willis, St. Martinville, for plaintiff and appellant.
    Davidson, Meaux, Sonnier & Roy, J. J. Davidson, II, Lafayette, for defendant and appellee.
    Before CULPEPPER, DCMENGEAUX and CUTRER, JJ.
   CULPEPPER, Judge.

The plaintiff, J. B. Willis, owns a farm containing approximately 17 acres. He seeks a judgment against the defendant, Southwest Louisiana Electric Membership Corporation, ordering it to remove from his farm an electric line and a pole. The defendant contends it has acquired a servitude for the line and the pole under LSA-R.S. 12:428. The district judge found the defendant had acquired such a servitude. From a judgment dismissing his suit, plaintiff appealed.

The district judge gave detailed reasons for judgment in which he found as a fact that the defendant had maintained the electric distribution line and pole in question on plaintiff’s farm, without interruption, for several years. Under these facts, the trial judge correctly concluded that defendant had acquired by prescription a servitude under the provisions of LSA-R.S. 12:428.

On appeal, the plaintiff makes an additional argument that LSA-R.S. 12:428 violates the provisions of the Louisiana Constitution of 1974, Article 1, Section 4, which prohibits the taking of private property by an expropriating authority without paying the owner just compensation. Plaintiff made this constitutional argument in his brief in the district court, and he has re-urged it in his brief in this court, but he did not specially plead it in the district court. In his written reasons, the district judge stated that the constitutional issue was not before his court because it was not specially pleaded, citing Barnes v. Dixie Electric Membership Cooperation, 323 So.2d 247 (1st Cir. 1975). We agree that the issue was not before the district court. Also, the constitutional issue is not properly before this Court of Appeal, because it was not specially pleaded nor were the grounds particularized in the trial court, Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971).

On appeal, plaintiff argues for the first time that electric lines are discontinuous servitudes, and that Act 514 of 1977 amended our Civil Code by adding Article 739 which provides that “Nonapparent ser-vitudes may be acquired only by title”. This issue is also not properly before us because Act 514 of 1977, amending in certain respects the provisions of our Civil Code as to servitudes, did not become effective until after this suit was filed on February 7, 1977.

In oral argument before this Court, plaintiff made an additional contention that LSA-R.S. 12:428 provides only for the acquisition of servitudes for “electric transmission and distribution lines”. Plaintiff argues that the line in question here is neither a transmission line nor a distribution line, but is only a service line, since it was constructed and maintained by the defendant for the sole purpose of servicing plaintiffs farm. During the trial, plaintiff attempted, without success, to elicit from the witness, Robert Heatherwick, Jr., chief engineer for defendant, expert opinion to the effect that the line in question was a service line and not a transmission or distribution line. This witness’ testimony is un-contradicted that the line in question is a distribution line. He said that the term “service line” is sometimes applied to the low voltage, insulated wire that runs from the last pole to the customer’s house or place of business. However, the witness testified positively that the line in question here, which runs from the 3 phase line on the highway a distance of about 220 feet to the pole on plaintiff’s farm, is a distribution line. This testimony by Mr. Heatherwick is uncontradicted. In the record before us, there is no evidence on which to base a finding that the line in question is not a distribution line covered by LSA-R.S. 12:428.

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

AFFIRMED.


author: WATSON, Judge.

text:
    Dorothy Bourque DAIGLE v. Leroy DAIGLE.
    No. 6444.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.

      Shelton & Legendre, Thomas Robert Shelton, Lafayette, for defendant-appellant.
    Edwards, Stefanski & Barousse, by Nolan J. Edwards, Crowley, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

In this litigation involving domestic discord, Dorothy Bourque Daigle filed suit on September 12, 1975, against her husband, Leroy Daigle, demanding a legal separation on the allegation that he had attempted without lawful cause to have her committed to a mental institution. Leroy reconvened, contending that in fact he was entitled to a legal separation due to his wife’s having made unjust accusations against his moral character at his place of employment.

A rule concerning child custody and support was tried in January, 1976, by a judge who retired before trial on the merits. In the rule proceeding, the custody of a 16-year-old son of the marriage was given to Leroy and custody of the two young daughters was given to Dorothy, an arrangement which is not contested on appeal. Alimony and child support were fixed at that time.

In June, 1976 the case was heard on the merits by a second trial court judge and it was necessary for the proceedings at the rule hearing to be transcribed in order that the judge who was hearing the merits could review the evidence which had been previously presented. Only a small amount of evidence was taken at the trial on the merits, most of the differences between the parties having been thoroughly aired at the hearing on the rule for child custody and support.

Apparently due to a delay in transcribing the rule proceeding, the merits were not decided until June, 1977, at which time the trial court held that neither party had presented sufficient evidence to justify the granting of a legal separation. Leroy has appealed, contending that he proved his case and is entitled to a legal separation, and Dorothy has answered the appeal, also contending that she proved her right to a separation.

This court has carefully reviewed the record and is of the opinion that there is no manifest error in the conclusions of the trial court that Leroy did not prove that his wife had made such unjust accusations against him or was so deficient in her conduct of her wifely duties as to entitle him to a separation and that Dorothy failed to prove that Leroy attempted without good cause to have her committed.

However, due to the long delays which have been encountered by these parties-litigant in the judicial process, this court is going to remand this case to the trial court for further proceedings and any relief to which the parties might now be entitled. LSA-C.C.P. art. 2164. The parties are granted 30 days to file such additional pleadings as desired; if no pleadings are filed the trial court is authorized to dismiss the proceedings.

The trial court assessed the costs one-half against each party. This was an error. Malone v. Malone, 260 La. 759, 257 So.2d 397 (1972). Costs of trial and appeal should be and are assessed against the community of acquets and gains between Leroy Daigle and his wife.

REMANDED.


author: DOMENGEAUX, Judge.

text:
    Shirley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana, Plaintiff-Appellant, v. LESLIE ARDOIN, INC., Defendant-Appellee.
    No. 6455.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Writ Refused June 2, 1978.
    Art B. Haack, Baton Rouge, for plaintiff-appellant.
    J. Winston Ardoin, Eunice, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

The Secretary of the Department of Revenue and Taxation filed this suit against Leslie Ardoin, Inc., alleging that defendant failed to pay the State $5,095.76 in income taxes for the years 1974 and 1975, under La.R.S. 47:21 et seq., and $4,231.00 in corporate franchise taxes for the years 1973 through 1976, under La.R.S. 47:601 et seq. The parties entered into a stipulation of facts, which we quote as follows:

“1. The defendant, LESLIE AR-DOIN, INC., is an agricultural corporation, formed for such purpose under Louisiana law, and was operated as such during the period at issue in this case;
2. The defendant has paid Federal Income Tax through the 1976 tax year.
3. The defendant did not pay Louisiana Income Tax for the period January 1, 1974 through December 31, 1975, nor Louisiana Franchise Tax during the period January 1, 1973 through December 31, 1976, claiming an exemption under LSA-R.S. 47:121 and R.S. 47:608(1) from the payment of such taxes.
4. The Court may take judicial notice of LSA-R.S. 47:31; 47:121; 47:601; and 47:608(1); same being the statutes at issue in this controversy.
5. In the event there should be a final judicial decision rendered against the defendant in this matter, defendant agrees to pay the principal sum as claimed by plaintiff to be due for the periods in question, and the plaintiff agrees in such case to waive any penalties to which it may be entitled.
6. This matter is hereby submitted to the Court for adjudication on the basis of these stipulations, the pleadings and the briefs filed by counsel. All exceptions previously filed are referred to the merits.”

After submission of the stipulations and pleadings to the Court, judgment, without accompanying written reasons, was rendered in favor of the defendant. The Department appealed.

The only issue presented on appeal involves the proper construction and interpretation of La.R.S. 47:121 and 47:608, the exemption provisions of the State’s income and corporate franchise tax statutes, respectively.

La.R.S. 47:121, relative to income tax, provides, in pertinent part:

“The following organizations shall be exempt from taxation under this chapter:
(1)Labor, agricultural, or horticultural organizations; . . . ”

La.R.S. 47:608, relative to the corporate franchise tax, provides, in pertinent part:

“The provisions of this Chapter do not apply to corporations organized for the following purposes:
(1) Labor, agricultural, or horticultural corporations; . . ”

It is the Department’s position that in order to come under the exemption provisions, certain requirements must be met. It calls our attention to the State regulation corresponding to La.R.S. 47:121, which provides:

“ARTICLE 121.2. Labor, Agricultural, and Horticultural Organizations.
The organizations contemplated by R.S. 47:121(1) are those which:
(1) have no net income inuring to the benefit of any member;
(2) are educational or instructive in character; and
(3) have as their objects the betterment of the conditions of those engaged in such pursuits, the improvements of the grade of their products, and the development of a higher degree of efficiency in their respective occupations.
Organizations such as parish fairs and like associations of a quasi-public character which are designed to encourage the development of better agricultural and horticultural products through a system of awards, and whose income from gate receipts, entry fees, and donations is used exclusively to meet the necessary expenses of upkeep and operation, are thus exempt. On the other hand, associations which have for their purpose the holding of periodic race meets, the profit from which may inure to the benefit of their stockholders, are not exempt. Similarly, corporations engaged in growing agricultural or horticultural products for profit are not exempt.”

It argues that since Leslie Ardoin, Inc. was organized as a profit making corporation, it cannot qualify for the exemption and must pay income taxes just like any other person engaged in agricultural pursuits for profit.

With regard to the corporate franchise tax, the Department maintains that since the exemption provision was patterned after that of the income tax statute, the same meaning should be given to the franchise tax exemption. Thus, it maintains that since Leslie Ardoin, Inc. is a corporation engaged in making profits, it is likewise liable for corporate franchise taxes.

On the other hand, defendant argues that the exemptions apply to all agricultural organizations and corporations, regardless of whether they are profit or nonprofit. It claims that the statutes in question are clear and unambiguous, and that it clearly falls within the exemption. Defendant apparently contends that the Department’s regulation changes the meaning of the income tax statute and thus is without force or effect. As such, it cannot influence the corporate franchise tax exemption.

We hold that the exemptions apply only to those agricultural organizations and corporations which are operated on a nonprofit basis.

At the outset we note that, as a basic rule of statutory interpretation, when legislation is patterned after federal law, Louisiana courts may look to federal interpretations in order to ascertain the meaning and application of the statutes in question. Landry and Passman Realty, Inc. v. Beadle, Swartwood, Wall & Associates, Inc., 303 So.2d 761 (La.App. 1st Cir. 1974), writs refused 307 So.2d 631 (La.1975); Cousins v. State Farm Mutual Automobile Insurance Company, 258 So.2d 629 (La.App. 1st Cir. 1972); Beckham v. Hartford Accident & Indemnity Company, 137 So.2d 99 (La.App. 3rd Cir. 1962). We also note that, on at least one occasion, when the Louisiana Supreme Court was faced with interpretating a state income tax provision copied from the federal act, they found that the Louisiana Legislature intended to incorporate into Louisiana law the federal regulations and court decisions surrounding the federal provisions at the time of adoption. Standard Oil Company of New Jersey v. Collector of Revenue, 210 La. 428, 27 So.2d 268 (1946). Finally, we note that in taxing legislation, exemptions must be strictly construed, and clearly, unequivocally, and affirmatively established. Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958); Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949); Standard Oil Company of Louisiana v. Fontenot, 198 La. 644, 4 So.2d 634 (1941); Succession of Hyams, 199 So.2d 29 (La.App. 4th Cir. 1967), writ refused 250 La. 984, 200 So.2d 667 (1967); Ruston Hospital, Inc. v. Riser, 191 So.2d 665 (La.App. 2nd Cir. 1966); Peters v. Cooper, 90 So.2d 892 (La.App. 1st Cir. 1956).

We now proceed to examine the history of the statutes in question.' The Louisiana income tax law came into existence by virtue of Act No. 21 of 1934. To a large extent, it was patterned after the federal internal revenue code in existence at that time. The provision dealing with exemptions from the tax was found in Section 27 of the Act. A comparison of Section 27 with the current La.R.S. 47:121 reveals that the provisions of the two are almost identical, there being only minor variations. When Section 27 is compared with the equivalent federal provision in existence during 1934, § 103 of the Internal Revenue Act of 1932, it is seen that the Louisiana legislation is almost a verbatim copy of the federal act. We therefore are justified in turning to federal interpretations of the provision.

Treasury regulation Art. 522 [Reg. 77], in effect during 1934, provided the following:

“Art. 522 [Reg. 77]. Labor, agricultural, and horticultural organizations.—The organizations contemplated by section 103(1) as entitled to exemption from income taxation are those which—
(1) Have no net income inuring to the benefit of any member;
(2) Are educational or instructive in character; and
(3) Have as their objects the betterment of the conditions of those engaged in such pursuits, the improvement of the grade of their products, and the development of a higher degree of efficiency in their respective occupations.
Organizations such as county fairs and like associations of a quasi-public character, which are designed to encourage the development of better agricultural and horticultural products through a system of awards, and whose income from gate receipts, entry fees, and donations is used exclusively to meet the necessary expenses of upkeep and operation, are thus exempt. On the other hand, associations which have for their purpose, for example, the holding of periodical race meets, the profits from which may inure to the benefit of their shareholders, are not exempt- Similarly, corporations engaged in growing agricultural or horticultural products for profit are not exempt from tax. [Art. 522, Reg. 77].”

The validity of the federal regulation is not questioned, and we assume that it is a correct interpretation of the federal statute. Under rules of statutory interpretation, it is clear that the Louisiana Legislature intended to exempt only those agricultural organizations which qualified under Treasury regulation Art. 522 [Reg. 77], in effect in 1934. Clearly, defendant does not qualify.

In addition to these rules of statutory interpretation, we find specific support for this view in the Louisiana Supreme Court’s decision in Standard Oil Co. of New Jersey v. Collector of Revenue, supra, which is the legal enantiomorph of the instant controversy. In Standard Oil, the validity of a state regulation was in question. The Collector of Revenue had promulgated a regulation which differed from the corresponding federal regulation. The Court invalidated the state regulation and stated that when the Louisiana Legislature passed a verbatim copy of the federal act, the federal interpretation of the statute was also adopted. As such, the state regulation could not differ from the federal regulation. In the instant case, the state regulation parallels the federal regulation. It follows from the principles set forth in Standard Oi! that the regulation is a proper interpretation of the statute and should be applied to this case. Defendant is not exempt from the payment of state income tax.

With regard to the corporate franchise tax, an examination of legislative history reveals that prior to a 1958 amendment to the statute, the exemption provision was substantially different from that contained in the income tax statute. Act No. 437 of the 1958 Legislature amended the franchise tax exemption provision in order to parallel the construction of the corresponding income tax exemption provision. We think it apparent that the Legislature intended to grant those corporations exempt from income tax under La.R.S. 47:121 a similar exemption from corporate franchise tax. Thus, the same rule applies to both income tax and corporate franchise tax exemptions. Accordingly, since defendant does not qualify for an exemption from income tax, it does not qualify for an exemption from corporate franchise tax.

For the above reasons the judgment of the District Court is reversed and judgment is hereby rendered ordering defendant to pay the State $5,095.76 for unremitted income tax and $4,231.00 for unremitted corporate franchise tax, together with statutory interest from due date until paid, as provided for by La.R.S. 47:1601. All costs, at trial and on appeal, are to be assessed against defendant-appellee.

REVERSED AND RENDERED.

      . Footnote by the Appellate Court. La.R.S. 12:1, et seq., the Business Corporation Law.

      . Section 27. Exemptions From Tax on Corporations. — The following organizations shall be exempt from taxation under this Act:
      (1) Labor, agricultural, or horticultural organizations;
      (2) Mutual savings banks and mutual Building and Loan Associations not having a capital stock represented by shares;
      (3) Fraternal beneficiary societies, orders, or associations, (A) operating under the lodge system or for the exclusive benefit of the members of a fraternity itself operating under the lodge system; and (b) providing for the payment of life, sick, accident, or other benefits to the members of such society, order, or association or their dependents;
      (4) Cemetery companies owned and operated exclusively for the benefit of their members or which are not operated for profit; and any corporation chartered solely for burial purposes as a cemetery corporation and not permitted by its charter to engage in any business not necessarily incident to that purpose, no part of the net earnings of which inures to the benefit of any private shareholder or individual;
      (5) Corporations and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual;

        (6) Business leagues, chambers of commerce, real estate boards, or boards of trade, not organized for profits and no part of the net earnings of which inures to the benefit of any private shareholder or individual;
      (7) Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes;
      (8) Clubs organized and operated exclusively for pleasure, recreation, and other nonprofitable purposes, no part of the net earnings of which inures to the benefit of any private shareholder;
      (9) Benevolent life insurance associations of a purely local character, mutual ditch or irrigation companies, mutual or cooperative telephone companies, or like organizations; but only if 85 per centum or more of the income consists of amounts collected from members for the sole purpose of meeting losses and expenses;
      (10) Farmers’ or other mutual hail, cyclone, casualty, or fire insurance companies or associations (including interinsurers and reciprocal underwriters) the income of which is used or held for the purpose of paying losses or expenses;
      (11) Farmers’, fruit growers’, or like associations organized and operated on a cooperative basis (A) for the purpose of marketing the products of members of other producers, and turning back to them the proceeds of sales, less the necessary marketing expenses, on the basis of either the quantity or the value of the products furnished by them, or (B) for the purpose of purchasing supplies and equipment for the use of members or other persons, and turning over such supplies and equipment to them at actual cost, plus necessary expenses. Exemption shall not be denied any such association because it has capital stock, if the dividend rate of such stock is fixed at not to exceed 8 per centum per annum on the value of the consideration for which the stock was issued, and if substantially all of such stock (other than nonvoting preferred stock, the owners of which are not entitled or permitted to participate, directly or indirectly, in the profits of the association, upon dissolution or otherwise, beyond the fixed dividends) is owned by producers who market their products or purchase their supplies and equipment through the association; nor shall exemption be denied any such association because there is accumulated and maintained by it a reserve required by state law or a reasonable reserve for any necessary purpose. Such an association may market the products of nonmembers in an amount the value of which does not exceed the value of the products marketed for members, and may purchase supplies and equipment for non-members in an amount the value of which does not exceed the value of the supplies and equipment purchased for members, provided the value of the purchases made for persons who are neither members nor producers does not exceed 15 per centum of the value of all its purchases;
      (12) Corporations organized by an association exempt under the provisions of paragraph 11, or members thereof, for the purpose of financing the ordinary crop operations of such members of other producers, and operated in conjunction with such association. Exemption shall not be denied any such corporation because its capital stock, if the dividend rate of such stock is fixed at not to exceed 8 per centum per annum on the value of the consideration for which the stock was issued, and if substantially all such stock (other than non-voting preferred stock, the owners of which are not entitled or permitted to participate, directly or indirectly, in the profits of the corporation, upon dissolution, or otherwise, beyond the fixed dividends) is owned by such association, or members thereof; nor shall exemption be denied any such corporation because there is accumulated and maintained by it a reserve required by state law or a reasonable reserve for any necessary purpose;
      (13) Corporations organized for the exclusive purpose of holding title to property, collecting income therefrom, and turning over the entire amount thereof, less expenses, to an organization which itself is exempt from the tax imposed by this Act:
      (14) Voluntary Employees’ beneficiary association providing for the payment of life, sick, accident or other benefits to the members of such association or their dependents, if (A) no part of their net earnings inures (other than through such payments) to the benefit of any private shareholder or individuals, and (B) 85 per centum or more of the income consists of amounts collected from members for the sole purpose of making such payments and meeting expenses;
      (15) Teachers’ retirement fund associations of a purely local character, if (A) no part of their net earnings inures (other than through payment of retirement benefits) to the benefit of any private shareholder or individual, and (B) the income consists solely of amounts received from public taxation, amounts received from assessments upon the teaching salaries of members, and income in respect of investments.

      . Sec. 103 [Revenue Act of 1932], The following organizations shall be exempt from taxation under this title—
      (1) Labor, agricultural, or horticultural organizations;
      (2) Mutual savings banks not having a capital stock represented by shares;
      (3) Fraternal beneficiary societies, orders, or associations, (A) operating under the lodge system or for the exclusive benefit of the members of a fraternity itself operating under the lodge system; and (B) providing for the payment of life, sick, accident, or other benefits to the members of such society, order, or association or their dependents;
      (4) Domestic building and loan associations substantially all the business of which is confined to making loans to members; and cooperative banks without capital stock organized and operated for mutual purposes and without profit;
      (5) Cemetery companies owned and operated exclusively for the benefit of their members or which are not operated for profit; and any corporation chartered solely for burial purposes as a cemetery corporation and not permitted by its charter to engage in any business not necessarily incident to that purpose, no part of the net earnings of which inures to the benefit of any private shareholder or individual;
      (6) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual;
      (7) Business leagues, chambers of commerce, real-estate boards, or boards of trade, not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual;
      (8) Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes;
      (9) Clubs organized and operated exclusively for pleasure, recreation, and other nonprofitable purposes, no part of the net earnings of which inures to the benefit of any private shareholder;
      (10) Benevolent life insurance associations of a purely local character, mutual ditch or irrigation companies, mutual or cooperative telephone companies, or like organizations; but only if 85 per centum or more of the income consists of amounts collected from members for the sole purpose of meeting losses and expenses;
      (11) Farmers’ or other mutual hail, cyclone, casualty, or fire insurance companies of associations (including interinsurers and reciprocal underwriters) the income of which is used or held for the purpose of paying losses or expenses;
      (12) Farmers’, fruit growers’, or like associations organized and operated on a cooperative basis (a) for the purpose of marketing the products of members or other producers, and turning back to them the proceeds of sales, less the necessary marketing expenses, on the basis of either the quantity or the value of the products furnished by them, or (b) for the purpose of purchasing supplies and equipment for the use of members or other persons, and turning over such supplies and equipment to them at actual cost, plus necessary expenses. Exemption shall not be denied any such association because it has capital stock, if the dividend rate of such stock is fixed at not to exceed the legal rate of interest in the State of incorporation or 8 per centum annum, whichever is greater, on the value of the consideration for which the stock was issued, and if substantially all such stock (other than nonvoting preferred stock, the owners of which are not entitled or permitted to participate, directly or indirectly, in the profits of the association, upon dissolution or otherwise, beyond the fixed dividends) is owned by producers who market their products or purchase their supplies and equipment through the association; nor shall exemption be denied any such association because there is accumulated and maintained by it a reserve required by State law or a reasonable reserve for any necessary purpose. Such an association may market the products of nonmembers in an amount the value of which does not exceed the value of the products marketed for members, and may purchase supplies and equipment for nonmembers in an amount the value of which does not exceed the value of the supplies and equipment purchased for members, provided the value of the purchases made for persons who are neither members nor producers does not exceed 15 per centum of the value of all its purchases;
      (13) Corporations organized by an association exempt under the provisions of paragraph (12), or members thereof, for the purpose of financing the ordinary crop operations of such members or other producers, and operated in conjunction with such association. Exemption shall not be denied any such corporation because it has capital stock, if the dividend rate of such stock is fixed at not to exceed the legal rate of interest in the State of incorporation or 8 per centum per annum, whichever is greater, on the value of the consideration for which the stock was issued, and if substantially all such stock (other than nonvoting preferred stock, the owners of which are not entitled or permitted to participate, directly or indirectly, in the profits of the corporation, upon dissolution or otherwise, beyond the fixed dividends) is owned by such association, or members thereof; nor shall exemption be denied any such corporation because there is accumulated and maintained by it a reserve required by State law or a reasonable reserve for any necessary purpose;
      (14) Corporations organized for the exclusive purpose of holding title to property, collecting income therefrom, and turning over the entire amount thereof, less expenses, to an’organization which itself is exempt from the tax imposed by this title;
      (15) Federal land banks, national farm-loan associations, and Federal intermediate credit banks, as provided in the Federal Farm Loan Act, as amended;
      (16) Voluntary employees’ beneficiary associations providing for the payment of life, sick, accident, or other benefits to the members of such association or their dependents, if (A) no part of their net earnings inures (other than through such payments) to the benefit of any private shareholder or individual, and (B) 85 per centum or more of the income consists of amounts collected from members for the sole purpose of making such payments and meeting expenses;
      (17) Teachers’ retirement fund associations of a purely local character, if (A) no part of their net earnings inures (other than through payment of retirement benefits) to the benefit of any private shareholder or individual, and (B) the income consists solely of amounts received from public taxation, amounts received from assessments upon the teaching salaries of members, and income in respect of investments.


author: SAMUEL, Judge. LEMMON, Judge,

text:
    FRISCHHERTZ ELECTRIC COMPANY, INC. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Tom Cvitanovich, d/b/a Cvitanovich Seafoods, Inc. and Ronald Mills.
    No. 8347.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Herman & Herman, Russ M. Herman, and Thomas M. Brahney, Jr., New Orleans, for plaintiff-appellee.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Walter C. Thompson, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and BEER, JJ.
   SAMUEL, Judge.

Plaintiff, Frischhertz Electric Company, Inc., filed suit against Tom Cvitanovich, d/b/a T. Cvitanovich Seafood, and its automobile liability insurer, State Farm Mutual Automobile Insurance Company, seeking to recover damages arising out of a collision between a truck driven by Cvitanovich’s employee and a “stinger” or “bayonet” protruding from the joint of a boom of an aerial bucket unit owned and operated by plaintiffs employees. Defendants answered, denying negligence on their part, alleging the accident was caused solely by the negligence of plaintiff’s employees and, alternatively, alleging contributory negligence.

After a trial on the merits, judgment was rendered in favor of plaintiff and against defendants for $8,033.49. From this judgment defendants appeal.

The collision occurred on October 4, 1973 in New Orleans on South Claiborne Avenue at a perpendicular crossover between the inbound and outbound lanes of South Claiborne. At the point of the accident two roadways of South Claiborne run parallel with Interstate Highway 10, which is elevated over the neutral ground portion of South Claiborne between its two roadways. Defendants’ driver was operating a seafood delivery truck in the neutral ground lane headed in an easterly direction towards Tulane Avenue.

The Frischhertz employees had just stopped the truck in the crossover in anticipation of installing a conduit for electrical wiring under the elevated portion of Interstate 10. Plaintiff’s truck was equipped with a Skyworker unit, consisting of an hydraulic boom and bucket device used to raise men and equipment to elevated working areas. At the time of the collision the boom was folded down on top of the truck, so that the elbow or joint where the two sections of the boom met was extended directly behind the truck and the bucket end of the boom was at its front. The stringer at the elbow of the boom extended 6 to 8 feet beyond the rear of the truck approximately 11 feet off the ground. It was painted yellow and was between 1 and 2 feet long and 2 to 3 inches in diameter. At the time of the collision, plaintiff’s vehicle had been parked with the stinger extending into the inbound lane of South Claiborne for only a few minutes in anticipation of beginning work. Evidence shows the only warning signs or signals deployed at the time of the collision was a sawhorse barricade under the boom at the rear of the truck, parallel to its back bumper facing traffic entering the crossover. Plaintiff’s employees had not yet set out other barricades or warning cones in the street and a light on top of the truck was not in use. While there were signs in the area indicating construction work was being done, no signs were deployed in the immediate area of plaintiff’s vehicle. The evidence is clear that no flags or other warning devices were used on the boom or near the stinger which protruded from it.

Defendant’s seafood truck was traveling in the left lane of South Claiborne, and the top part of its plywood body struck the tip of the stinger which protruded from plaintiff’s vehicle into that lane of traffic. The truck had a plywood body, which extended approximately 5 feet above the head of the driver.

Defendant relies on R.S. 32:313, a portion of the Highway Regulatory Act as authority for plaintiff’s negligence. This statute provides:

“Whenever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at the time specified in R.S. 32:301, a red light or lantern plainly visible from a distance of at least 500 feet to the sides and rear. The red light or lantern required under this Section shall be in addition to the red rear light required upon every vehicle. At any other time there shall be displayed at the extreme rear end of such load a red flag or cloth not less than 12 inches square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear.” (Emphasis ours).

In conjunction with this statute, defendant cites Pierre v. Allstate Insurance Company and Dixie Drive It Yourself System v. American Beverage Company as authority for the proposition that the statute in question was designed not only to avoid the possibility that a prudent driver might run into a parked vehicle but also to afford protection from confused or inattentive drivers colliding with stationary vehicles on the highway. Defendant argues that since the statute was designed to protect against the risk involved in this case, its violation is negligence per se and a proximate cause of the accident.

In response, plaintiff argues that by R.S. 32:23 the Highway Regulatory Act does not apply to plaintiff’s truck because it was engaged in work on a highway and the municipal ordinance relied upon was not properly introduced into evidence and prevented the court from taking judicial notice thereof.

Pretermitting the argument on the municipal ordinance, R.S. 32:23 provides that the act does not apply to motor vehicles or other equipment while actually engaged in work upon the highway, but it also provides that the act does in fact apply to motor vehicles and other equipment while traveling to and from such work. It is obvious that all of the provisions of the Highway Regulatory Act cannot be complied with when a vehicle is in a roadway and engaged in its repair. However, the evidence shows plaintiff’s truck had just stopped at the site of the accident and had neither begun work nor actually positioned itself in such a position that work conceivably could have begun. In effect, we hold the vehicle was still in the process of “traveling to”- work when the accident occurred, and the provisions of R.S. 32:313 are applicable to plaintiff’s vehicle.

In addition, aside from any argument based upon negligence per se resulting from violation of the statute, plaintiff’s employees did not comply with duties imposed upon the prudent person under the circumstances. None of the plaintiff employees got out of the truck to flag traffic around the protruding boom or to check the location of the stinger. Moreover, even though the entire width of the crossover under the I — 10 overpass was available for parking, no one got out of the truck to be sure the position in which the truck was parked did not create an obstruction for oncoming traffic. The size of the stinger, as opposed to the boom to which it was connected, and its relative height over the ground should have caused plaintiff’s employees to anticipate that a traveler on South Claiborne would not see the relatively insignificant stinger and strike it with a truck or other elevated vehicle.

For the reasons assigned, the judgment appealed from is reversed, and judgment is hereby rendered in favor of defendants, Tom Cvitanovich, d/b/a T. Cvitanovich Sea-foods, and State Farm Mutual Automobile Insurance Company, and against plaintiff, Frischhertz Electric Company, Inc., dismissing plaintiff’s suit at its cost in both courts.

REVERSED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring and assigning reasons.

Whether or not R.S. 32:313 applies to plaintiff’s vehicle is not determinative of liability in this case.

R.S. 32:313 is a penal statute. While violation of the statute may result in a criminal penalty, civil liability is not automatic. However, the penal statute was designed to prevent unreasonable conduct, ■ and unreasonable conduct is the basis for imposition of liability. Therefore, while a penal statute may be applied by analogy in determining civil liability, violation of a penal statute is not negligence per se. Weber v. Phoenix Assur. Co. of N. Y., 273 So.2d 30, 33 (La.1973).

The obstruction of traffic with the relatively inconspicuous stinger and without warning devices was substandard conduct. Civil liability for the resulting damage should be imposed, whether or not the penal statute applied.

      . Also made defendant was Cvitanovich’s employee-driver, Ronald Mills. He was dismissed from the suit as an unemancipated minor.

      .Plaintiff also relies upon Section 38-129(a) of the New Orleans Municipal Code.

      .257 La. 471, 242 So.2d 821.

      .242 La. 471, 137 So.2d 298.

      . Use of an 11-inch square red flag would have violated the statute, but probably would have provided adequate warning to oncoming traffic of the obstruction so as to avoid civil liability.


author: SAMUEL, Judge.

text:
    Richard J. MIRE et al. v. OTIS ELEVATOR CO., INC., et al.
    No. 8434.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      John M. Robin, Metairie, and Darryl J. Tschirn, Covington, for plaintiffs-appellees.
    Drury, Lozes & Curry, James H. Drury, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff, Richard J. Mire, individually and as administrator of the estate of his minor child, Michelle M. Mire, filed suit against the defendants, Otis Elevator Company, Inc., its insurer, Commercial Union Insurance Company, D. H. Holmes Company, Ltd., its insurer, Aetna Life & Casualty Company, and Lakeside Shopping Center, endeavoring to recover damages sustained by Michelle on May 6, 1974 when her foot was caught in a descending escalator, resulting in subsequent surgical amputation of the distal two-thirds of the fifth toe on her right foot.

All defendants answered and denied negligence on their part. Otis alleged plaintiff’s wife was negligent in failing to properly supervise the child and asserted the wife’s contributory negligence against plaintiff’s recovery. Lakeside Shopping Center, D. H. Holmes Company, and Aetna filed a similar answer. In addition, they filed a reconventional demand against plaintiff seeking indemnification or contribution from him on the theory of his wife’s negligence and a third party petition against Otis seeking indemnity or contribution on the basis of the escalator maintenance contract between Otis and D. H. Holmes Company.

The case was tried before a jury, which rendered a verdict against Otis Elevator Co., Inc. for $50,000. Judgment was rendered against Otis Elevator and Commercial Union Insurance Company, in solido, on the verdict, and from that judgment they have taken this appeal. The jury held in favor of all other defendants and dismissed the suit as to them.

The evidence establishes that plaintiff’s wife and their two children went to D. H. Holmes Company to purchase a present. Mrs. Mire and the children had the present gift wrapped and were descending an escalator to the first floor when Michelle’s foot became wedged between the escalator’s metal treads and its porcelain coated skirt or sidewall. While the evidence is contradictory, it appears the child’s foot became so wedged approximately one-third of the way down the escalator and the escalator did not stop moving until the child’s foot was approximately three steps from the bottom.

The child was wearing a tennis shoe which was destroyed in an effort to free her foot. Howevér, the evidence indicates the shoe was relatively new and was not excessively worn. The child’s foot had to be freed by prying it from the escalator with a large screwdriver and crowbar.

The primary conflict in the evidence centered around the width between the side of the step tread and the adjacent skirt. Roger L. Harris, the maintenance supervisor for Otis (who was qualified as an expert witness) testified that when he inspected the escalator after the accident the clearance on each side of the steps varied from one-eighth of an inch to three-sixteenths of an inch, the latter width being less than that allowed by the three-eights of an inch requirement of the American National Standard Safety Code for elevators and escalators. He expressed the opinion that because the child’s mother was inattentive the child improperly placed a toe of her tennis shoe in the three-sixteenths inch crack, which caused the rubber shoe to be pulled into that crack between the escalator step and the skirt wall. He amplified on this opinion by pointing out the force of the shoe entering the crack could have forced the tread to the left, doubling the size of the crack since an equal space was allowable by the safety code on either side of the escalator tread. Under such circumstances, a space of three-eighths of an inch would have opened up to allow the shoe to enter.

On the contrary, the plaintiff, himself a civil engineer, testified the same day the accident occurred he went to the scene, rode the escalator, and observed that the space between the tread and the side skirt on the right side varied from a one-eighth inch opening at the top of the escalator to three-quarters of an inch, a quarter of the way down from the top of the escalator, from which point the crack tapered down to approximately one-eighth inch at the bottom near the escalator’s base plate.

The jury’s verdict indicates it believed the testimony of Mr. Mire, that the gap between the escalator tread and the side skirt was as wide as three-quarters of an inch and not merely three-sixteenths of an inch as testified by Otis’ witness. Eye witness testimony confirmed the child’s foot was in fact wedged between the escalator tread and the side skirt, and the jury was well within its discretion in concluding an opening as large as three-quarters of an inch in fact existed at the time she descended the escalator. While violation of the American National Standard Safety Code is not of itself negligence, again the jury did not abuse its discretion if it considered the standards set forth in that code as a benchmark to determine whether the opening between the tread and the skirt wall was excessively wide.

Testimony regarding the existence of a defect. in the escalator, particularly with regard to the clearance between the tread and the skirt wall, was in direct conflict, thereby increasing the importance of the credibility of the witnesses. When there are two conflicting factual situations presented at a trial, the trier of fact has much discretion in exercising its function of resolving these conflicts, and its findings will only be disturbed where it commits a clear abuse of its discretion. The evidence presented to the jury in the present case indicates it did not abuse its discretion in finding Otis was negligent in the maintenance of the escalator.

The evidence also shows with little contradiction that Mrs. Mire was not guilty of negligence in supervising Michelle. She was in the store with Michelle and a younger daughter. As she descended the escalator with the wrapped present and the two children, the younger child was held by the hand on Mrs. Mire’s left side, and Michelle was stationed on her right side. Mrs. Mire was holding the package in her right hand, but testified she could feel Michelle standing against her right side. The jury specifically found Mrs. Mire was not guilty of negligence by descending the escalator in this fashion, and there is nothing in the record to justify disturbing that finding.

Otis argues the jury verdict was based on mere sympathy without factual foundation and requests the verdict be either reversed or reduced. Our review of the record indicates Otis’ position is not correct.

Michelle’s foot, and particularly the last two toes thereof, became wedged tighter and tighter between the metal tread and the side wall of the escalator. She screamed and cried both from pain and fright as the escalator descended and tightened on her foot. Neither she nor Mrs. Mire knew when, if at all, the escalator would be stopped. After the escalator finally stopped, the child’s foot was wedged in the mechanisms so that manual efforts to free it were not successful. As Mrs. Mire tried to calm the child, attempts were made to cut the shoe away with scissors in the hope of freeing her foot. The escalator was then reversed with a jerk in an equally unsuccessful effort to free the foot. Eventually, a crowbar and oversized screwdriver were used to pry the foot from the escalator’s mechanism. Michelle was both conscious and aware during this protracted procedure.

Her foot was removed from the shoe, which remained in the escalator mechanism. Upon being removed, the foot was wrapped in a towel. Mrs. Mire and Michelle were detained at the shopping center without medication for a substantial time to answer questions for defendants’ insurance reports. They were then driven to the hospital in a circuitous route by a well-meaning store patron who was not familiar with the area.

When Michelle arrived at the hospital she was very anxious about the condition of her foot and expressed great desire to see if her toe was still there. Medical personnel in the emergency room advised Mrs. Mire not to let the child see her foot in its damaged condition. In addition to the crushed toe, the child’s foot and other toes were contused and abraded. The wound was cleaned, x-rays were taken, and the child was admitted to the hospital.

Mrs. Mire testified Michelle spent a fitful first night in the hospital and it was necessary for her to hold the child the entire night to comfort her even though analgesics had been administered. The child cried in her sleep and awoke on several occasions complaining of pain. Thereafter, she was required to remain quiet with her right leg elevated. She remained hospitalized for ten days. On the seventh day she underwent surgery for the amputation of the distal two-thirds of her right little toe and de-bridement of skin from her right foot. On advice of her physician, the child was allowed to observe her toe preoperatively on a daily basis and watched it blacken with gangrene. After the operation, her foot was bandaged, and she was allowed first the use of a wheel chair and then the use of crutches. She experienced pain throughout her hospitalization and subsequent thereto, and expressed bewilderment over the pain and her injury in general.

One of plaintiff’s physicians cautioned against the “psychological aftermath of hospitalization and notably the potential psychological overlay or impact resulting from a partially amputated toe in a young female.” Mrs. Mire testified the child has incurred behavioral difficulty from the amputation, which is particularly accentuated by comments from her friends and neighbors regarding the ugliness of the remaining stump. On her physician’s advice, the child’s parents have attempted to overcome the negative effects of the disfigured foot and to reestablish the child’s self-esteem and confidence by private swimming lessons, dance lessons, acrobatic training, and other confidence building activities. There is little doubt, however, she will continue to have adjustment problems as she matures and grows into adolescence.

Under all of these circumstances, and in view of the great discretion afforded the trier of fact in assessing damages, we cannot say the jury was erroneous in awarding $50,000 for pain and suffering and for the permanent disfigurement with which this female child must cope over the remaining years of her life.

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

AFFIRMED.

      . See Canter v. Koehring Company, La., 283 So.2d 716.


author: REDMANN, Judge.

text:
    Clyde BEL, Sr. d/b/a C. Bel For Awnings v. CAPITAL PROPERTIES, INC., et al.
    No. 8474.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Writ Refused June 30, 1978.
    Thomas A. Casey, Casey, Babin & Casey, New Orleans, for plaintiff-appellee.
    Walter C. Thompson, Jr., Sessions, Fish-man, Rosenson,' Snellings & Boisfontaine, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   REDMANN, Judge.

Plaintiff contracted to and did fabricate and install six large ornamental canvas awnings on metal frames for defendant’s hotel. Awnings and even frames soon evidenced damages; one of the metal frames broke, eyelets for tie-ropes broke out of canvas, and one awning tore at its corners. Six months after their installation defendant had to pay to remove two of the awnings. Ten months later the remaining awnings were a shambles.

Both parties appeal from a judgment which awarded plaintiff the total agreed price of $7,850, reduced by $2,500 allowed for “deficiencies”, with 25% attorney’s fees.

We agree with plaintiffs categorization of the contract as a building contract (rather than a sale, as defendant argues). Even so, if the building (or other work, La.C.C. 2756) “should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss . . . C.C. 2762. We conclude that, because of the showing by defendant that the awnings fell to ruin so quickly, and the consequent inference that materials or workmanship were at fault, plaintiff’s ever-present burden of proving his case obliged him to go forward with evidence to prove that neither his materials nor his workmanship caused the falling to ruin. Because of the absence of a showing that some other cause accounts for the ruin of the awnings, we are obliged to hold that plaintiff has not proved his case for recovery on the contract.

We do, however, conclude that plaintiff is entitled to recovery on the theory of unjust enrichment, C.C. 1865, for the six months during which the awnings gave reasonable service (defendant’s disappointment in the presence of wrinkles notwithstanding) and the period thereafter during which some of the awnings continued to serve. The evidence is that the useful life of the canvas of decorative awnings is about three years, and the life of the frames is about ten years. We believe that substantial justice would be accomplished by an award of one-sixth of the full value of the awnings (as indicated by the contract price).

The judgment is reduced to $1,308.33, with legal interest from judicial demand and without attorney’s fees. All costs are to be divided equally.

      . The trial judge reasoned that defendant’s manufacture and installation of the awnings “substantially met the ‘workmanlike manner’ and ‘standard practices’ requirements” provided by the contract. He supported this conclusion by citing defendant’s agreeing to pay an added $550 for aesthetic design changes shortly after installation. But he noted some deficiencies, which were remediable at a relatively low cost, “impossible to determine with certainty”, for which he estimated and allowed $2,500. The awnings’ worthlessness at trial he attributed to original “imperfections as well as . normal ‘wear and tear’ . . . aggravated by weather” without any maintenance by defendant.
      He also cited the “stand-off” from which each party refused to budge. He noted defendant’s duty to minimize damages and contrasted “defendant’s arbitrary conduct in abandoning the awnings to the elements.”
      On appeal, defendant argues that the bargain between the parties was the sale of an awning, and that the awning was redhibitorily defective, entitling defendant to rescission of the sale, with attorney’s fees, La.C.C. 2545. Plaintiff argues that the bargain was a building contract and relies on the decisions holding the builder entitled to the contract price on showing substantial performance, reduced only by any amount the owner proves is the cost of remedying defects; plaintiff argues that defendant did not show the cost of remedying defects and therefore is not entitled to the trial judge’s $2,500 allowance for defects.


author: WICKER, Judge.

text:
    Darryl BLAPPERT and Albert Bowman v. Earl LOPEZ and Criterion Insurance Company.
    No. 8546.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.

      Gertler & Gertler, David Gertler, New Orleans, for plaintiffs-appellees.
    Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for Earl Lopez and Criterion Ins. Co., defendants-appellants.
    Stahl & Berke, Kenneth J. Berke, New Orleans, for Julius L. Levy, Jr., third-party defen'dant-appellee.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   WICKER, Judge.

Plaintiffs, Darryl Blappert and Albert Bowman, filed suit against defendants, Earl Lopez and his liability insurer, Criterion Insurance Company, seeking damages resulting from an automobile collision with defendant Lopez on February 14, 1975.

Defendants answered and denied that either plaintiff was injured as set forth in the petition. Accordingly, defendants filed a third party petition against Dr. Julius L. Levy, Jr. seeking indemnity on the ground that the treatment afforded by him to the plaintiffs was excessive, unreasonable and unnecessary in view of the nature of plaintiffs’ injuries.

Third party defendant filed exceptions of vagueness and no cause of action to the third party demand. The trial court maintained the exception of no right of action and dismissed the third party demand. From that judgment defendants have appealed.

The issue presented for our decision is whether a defendant in a court action has a right to file a third party demand against the plaintiff’s treating physician for indemnity because the physician overtreated and overcharged the plaintiff.

Third party plaintiff relies heavily on the case of Hillebrandt v. Holsum Bakeries, Inc. However, Hillebrandt does not decide the issue presented here.

No authority is cited, nor can we find any, to establish or deny a right to file a third party petition against a treating physician under the circumstances of this case. However, two points seem to require no authority. Neither a defendant nor his insurer in a tort suit is party to the physician-patient contract or relationship between the plaintiff and his physician. In addition, neither defendant nor his insurer are the legal subrogees of plaintiff until they are cast in judgment and make payment thereof. It is also important to notice in the present case the third party demand was filed against the treating physician at the inception of the proceeding, and not after the extent of plaintiffs’ damages had been ascertained in relation to the amount of treatment afforded by the physician.

Under all circumstances, we cannot hold that a defendant tort-feasor or his insurer has a right to file a third party demand against an injured party’s treating physician to establish overtreatment or overcharging.

The practical effect of allowing such a third party demand is to inhibit an injured party from receiving competent medical treatment from honest and ethical physicians. As in any other calling, there are a minority of physicians who will abuse the privileges afforded them by their profession. The procedure attempted to be used by defendants in this case, however, if allowed, will discourage physicians acting in good faith from treating a tort victim since in each such case the physician will run the risk of being required to retain counsel in each case to defend him against alleged excessive charges and will be obliged to spend substantial amounts for expert testimony to substantiate the reasonableness of his treatment and fees. The obviously foreseeable effect of this situation will be to deny competent medical treatment to injured parties or to raise the ever growing cost of medical services even further.

For the foregoing reasons, the judgment appealed from is affirmed, and the case is hereby remanded for further proceedings consistent with the views expressed herein. All costs of this appeal are to be paid by defendants; all other costs are to await the ultimate determination of the merits of this case.

AFFIRMED AND REMANDED.

      . La.App., 267 So.2d 608.

      . Id., at page 610.

      .LSA-C.C. Art. 2161(3); Hutchinson v. Rice, 105 La. 474, 29 So. 898; Standard Motor Car Co. v. State Farm Mut. A. Ins. Co., La.App., 97 So.2d 435.


author: GULOTTA, Judge.

text:
    Frank Robert KOLWE, Sr. v. Marjorie Tastet OWENS.
    No. 8610.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Porteous, Toledano, Hainkel & Johnson, James L. Donovan, New Orleans, Paul M. Batiza, Thibodaux, for plaintiff-appellee.
    Hartman C. Daniel, Metairie, for defendant-appellant.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   GULOTTA, Judge.

In awarding a reduction in the purchase price of a residence to the extent of $1,499.51 for rotten flooring beneath the bathroom of the house constructed on two-foot piers, the trial judge concluded that “the defective condition of the property involved was not subject to discovery by a simple inspection . . . .” We affirm.

LSA-C.C. art. 2521 provides:

Art. 2521. Apparent defects discoverable by buyer
“Art. 2521. Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

In Pursell v. Kelly, 244 La. 323, 152 So.2d 36, 41 (1963), the Louisiana Supreme Court stated that the term “simple inspection” “relieves the buyer of examining the inner or hidden parts of the object of the sale for the purpose of ascertaining the- existence of latent defects”.

Plaintiff testified that he had examined the interior of the house on three occasions prior to the sale and had not noticed any defects or leaks. Evidence indicates that the defect was discernible only by crawling under the house and was not perceptible by inspection inside the premises. The rotten condition was first observed by a pest control man who was crawling under the house subsequent to the act of sale.

Under these circumstances, the record supports the trial judge’s conclusion and plaintiff is entitled to a reduction. See LSA-C.C. art. 2521, supra; Pursell v. Kelly, supra; Conley v. Cupit, 274 So.2d 713 (La. App. 4th Cir. 1973); Busenlener v. Peck, 316 So.2d 27 (La.App. 1st Cir. 1975). Quantum is not in issue. The judgment is affirmed.

AFFIRMED.