text:
    Ethelyn J. OWEN v. NEW ORLEANS CITY CIVIL SERVICE COMMISSION.
    No. 10087.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied June 11, 1979.

      Ralph D. Dwyer, Jr., Many, Lo Coco & Dwyer, New Orleans, for defendants-appellants.
    Gerald J. Leydecker, New Orleans, for plaintiff-appellee.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

The New Orleans Civil Service Commission has appealed from a judgment enjoining it “from terminating plaintiff’s employment for the reason of her being unqualified, or hiring a replacement for her.”

Plaintiff began working in the Department of Finance of the City of New Orleans in September, 1972, by virtue of an appointment as a Transient Clerk II. The chronological history of her employment thereafter is as follows:

December 19, 1972 — Transient Clerk II status terminated and appointed Provisional Clerk as an emergency appointment.
December 29,1972 — Appointed Provisional Clerk I.
March 25, 1974 — Appointed Transient Clerk II.

She never acquired permanent employment status in the classified service of the City, and when it came to the attention of the Commission in November, 1977, that she was still on the payroll, steps were taken to terminate her employment, culminating with a letter of February 16,1978, from the Director of the Finance Department advising her that her appointment as a Provisional Clerk II would be terminated, effective March 3, 1978, since the Department was required to fill the position with a permanent appointment. She secured a temporary restraining order against the Commission and upon trial of the rule for preliminary injunction the judgment appealed from was rendered in her favor.

Art. 14, § 15(A)(1) of the Louisiana Constitution of 1921 provides that permanent appointments in the classified service of the City of New Orleans “shall be made . pursuant to a general system based upon merit, efficiency, and fitness, under which certificates shall be based on examinations . and all employees in the Classified Service shall be employed from those eligible under such certification . . .”

This provision of the Constitution of 1921 which was in effect when plaintiff was initially appointed as a transient employee was substantially the same as Art. 10, § 7, of the Constitution of. 1974, which became effective on December 31, 1974, when she was employed by virtue of employment as a Transient Clerk II made on March 25, 1974. The old and new Constitutions both provide that the Civil Service Commission shall adopt rules for appointments defined as emergency and temporary appointments. See Art. 14, § 15(1) of the Constitution of 1921, and Art. 10, § 7 of the Constitution of 1974.

Pursuant to the Constitution, the Commission adopted Rule 5.3 regarding temporary appointments, copy of which is made an appendix to this opinion. The intent of the rule on provisional appointments is obviously to enable the appointing authority to fill a vacancy temporarily in the case where there are no persons eligible by virtue of their having passed a competitive examination and to replace the provisional appointee with a qualified person as soon as possible. The rule places procedural limitations on the right of the appointing authority to use this provision, and it limits provisional appointments to a one year term. Transient appointments are obviously designed to fill a temporary need for an extra or substitute employee, and such an appointment cannot be made for more than three months unless extended, and then there is a one year limitation on the extent to which such a transient appointment may be extended. Finally, the emergency appointment is only available when no other method is available to deal with an emergency situation.

The entire scheme of Civil Service or the merit system for public employment is to insure that permanent appointments are obtained on merit, i. e., on the basis of competitive examinations. When the Civil Service employee obtains permanent status that employee becomes a part of a unique system with job security guaranteed by the Constitution itself. In the case before us, the trial judge has in effect used his equitable powers to confer on the plaintiff the status of one who has received a permanent appointment to the Civil Service notwithstanding the fact that she has never attained that status in accordance with the Constitution and the rules of the Commission.

When asked why this plaintiff was able to remain on the job despite the fact that her last provisional appointment by law was scheduled to expire on March 25, 1975, the Commission’s personnel director pointed out that there were 10,000 Civil Service employees’ files in his office and no system for flagging provisional and transient employees even though there were only about 100 provisional employees and just a few transient employees. He did say that a newly instituted computer system would prevent a recurrence of the sort of error which occurred in this case.

In his reasons for judgment, the trial judge expressed sympathy for plaintiff who, because of clerical mistakes made by employees of the City and Civil Service Commission, has been employed for five and a half years and concluded that her situation had somehow provided her with permanent status. He felt that it would be unconscionable for her to be fired under the circumstances.

We are unable to agree with this rationalization. When plaintiff was originally appointed in October, 1972, as a Transient she was told that the appointment would be for no more than 90 days. On May 8, 1974, when she was again appointed as a Transient, she was again told that the appointment was good for no more than 90 days. Plaintiff had to be aware of the basic underlying scheme of Civil Service appointments which requires competitive examinations. She is and has been occupying a position for which she is not qualified and for which she has never taken the steps required by law and, in effect, has prevented someone else who is qualified and who has taken the necessary constitutional, statutory and regulatory examinations from taking her position. Permanent appointment to the Civil Service cannot be acquired by accident or by estoppel, or by any means other than that which is prescribed by the Constitution.

In this court much reliance is placed on Finley v. Department of Corrections, etc., 351 So.2d 811 (La.App. 1st Cir. 1977), but that case is neither controlling nor persuasive. It involves an interpretation of Civil Service rules established by the State Civil Service Commission and included an issue as to whether Mrs. Finley had acquired status by virtue of rules which provided that upon a person serving under a temporary appointment for two years that employee must be considered a probationary employee and that an employee who completes a six month probationary period is entitled to permanent status. No comparable rules have been adopted by the Civil Service Commission of the City of New Orleans. We note, however, that our appreciation of the spirit of the Civil Service scheme is the same as the Finley court thought it to be in stating that:

“We do not think that an appointing authority can make job appointments in violation of both the letter and spirit of the Civil Service Rules and thereby deprive its employees of rights which are given them by the Constitution of this State and by the Civil Service Rules.”

In the instant case, those rules are clear. Plaintiff has no right to remain in her job. She never has been and is not now in the status of a permanent classified employee of the City.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of defendant, New Orleans City Civil Service Commission, and against plaintiff, Mrs. Ethelyn J. Owen, dismissing her suit at her cost.

REVERSED AND RENDERED.

APPENDIX

(RULE VI)

5.3 Temporary appointments to positions in the classified service may be made for short periods without compliance with the provisions of this part requiring certification, as follows:

(1) Provisional appointments. When a vacancy is to be filled in a position of a class for which there are no eligibles available for certification, the appointing authority, with the prior approval of the Director', may make a provisional appointment. Appointment of such provisional shall be made only after submission of the name and qualifications of the intended appointee to the Director and such individual is approved for appointment. Such provisional appointment shall terminate upon the regular filling of the vacancy in any manner authorized under these Rules and, in any event, within fifteen working days after a certification from which appointment can be required. A provisional appointment shall never continue for a period in excess of one year unless it is extended by the Commission upon the Director’s certification that eligibles are not available and that it is not possible or practicable to provide such eligibles.
(2) Transient appointments. Whenever the services of an extra or substitute employee are needed in any position in the classified service for a period of less than three months, the appointing authority, with the prior approval of the Director, may make a transient appointment of any person he deems qualified to serve for the period required. This appointment, with the prior approval of the Director, may be extended for a further period if required, but no person shall serve under a transient appointment from the same or different appointing authority for an aggregate period of more than three months in any continuous twelve month period.
(3)Emergency appointments. Where an emergency exists requiring that a position be filled before appointment can be made under any other provision of these Rules, an emergency appointment may be made for any available person to serve until the position involved can otherwise be filled under the provisions of these Rules. No emergency appointment shall continue for more than ten days in any case or be renewed for any further period beyond that limit. The authority for any emergency appointment is conditioned on a prompt report thereof to the Director, at the time the appointment is made.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Herman STONE v. STAR AMUSEMENT, INC. and Harry Duvigneaud.
    No. 10088.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied June 11, 1979.

      Reed, Reed & D’Antonio, Bruce G. Reed, J. D., Metairie, for plaintiff/appellant.
    Kiefer, Glorioso & Fleming, Anthony L. Glorioso, New Orleans, for defendants/ap-pellees.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   GULOTTA, Judge.

Plaintiff’s suit for the sum of $10,000.00, plus interest and attorney fees, representing the unpaid amount on two promissory notes each in the sum of $5,000.00, dated September 24, 1975 and payable January 1, 1976, executed by Star Amusement Inc. as maker and Harry Duvigneaud as endorser, resulted in an award in favor of plaintiff for the sum of $1,000.00 plus stipulated interest and attorney fees. The notes, made payable to Sam Anselmo, had been executed by Star Amusement and endorsed by Duvigneaud in connection with the purchase of a lounge by Star Amusement from Anselmo. The notes were then allegedly negotiated, before maturity, to plaintiff and plaintiff asserts his rights as a holder in due course against defendants for the unpaid face amount of the notes.

In awarding judgment to plaintiff in the reduced amount, the trial judge allowed defendants a credit for payment made to a third party creditor of Anselmo as a result of garnishment proceedings against defendants as garnishees in the sum of $7,217.85. The total credits allowed by the trial judge, 1. e., $9,000.00, included cash payments to Anselmo and payments to Anselmo’s creditors in excess of the amount of the purchase price withheld by defendants in connection with the purchase of the lounge from Anselmo.

According to plaintiff, the trial judge erred in allowing defendants a credit or set-off against the amount owed to him, a holder in due course, for payments (on behalf of a prior holder) made by defendant subsequent to negotiation of the notes. The due date on the notes is January 1, 1976 and defendants paid, as garnishees, on behalf of Anselmo, the prior holder of the note, on December 23, 1975. It is plaintiff’s contention that as a holder in due course he takes the instruments free from the defense of payment made for the benefit of a prior holder. Additionally, plaintiff claims the trial judge erred in allowing an extra $1,000.00 credit to defendants for payments to Anselmo’s creditors of the lounge in excess of the amount withheld in the act of purchase. We find no merit to these contentions. Accordingly, we affirm.

Although not stated by the trial judge in written reasons for judgment, he obviously concluded that plaintiff was not a holder in due course. Under the commercial laws adopted by the legislature and effective January 1, 1975, a holder in due course is defined as a holder who takes the instrument for value and in good faith. Other requirements are set forth but not pertinent to our discussion.

The circumstances surrounding plaintiff’s possession of the notes lead to a conclusion that plaintiff failed to establish the burden of showing that the notes were received for value. Defendants in their answer claim that plaintiff had never given any value or consideration for the promissory notes. Anselmo and plaintiff explain that in September 1975, after Anselmo’s sale of the lounge to defendant, they borrowed $14,-000.00 from Lucky Coin Amusement Company to be used by them in a joint venture in connection with the opening of another lounge and used Anselmo’s notes as collateral for that loan. The business subsequently went bankrupt and apparently the Lucky Coin satisfied the indebtedness from assets, fixtures and equipment from the bankrupt business.

Anselmo testified that he did not receive any cash from the Lucky Coin Amusement Company loan but that the $14,000.00 went into the business. In earlier testimony, Anselmo unconvincingly stated that he gave the two notes to Stone in connection with the $14,000.00 loan. Regarding this transaction, in answer to the question;

(Q) “You and Mr. Stone made a partnership agreement between you?”

Anselmo replied:

(A) “Right. He took the note. I sold ah, turned them over to Mr. Stone.”

The circumstances considered, we conclude that because plaintiff failed to establish that value was given for the notes sued on, plaintiff is not a holder in due course. Consequently, defendants are entitled to assert all valid defenses against the plaintiff. This includes the defense of payment, as garnishee under the garnishment, to a creditor of the payee (Anselmo) for an unrelated obligation.

The trial judge in oral reasons stated that he was “satisfied” that Duvigneaud did, in fact, pay the $7,217.85 for the payee’s benefit in the garnishment proceedings. The record supports the factual conclusions of the trial judge and we find no error. Accordingly, we conclude that defendants are entitled to this set-off in the amount of $7,217.85.

The record also supports the additional amount allowed by the trial judge bringing the total set-off to $9,000.00. Duvigneaud testified that Anselmo received the difference between $8,000.00 and the amount paid on the garnishment.' Duvigneaud stated also that he had paid on accounts payable an amount in excess of that withheld by him at the time of the purchase. According to Duvigneaud when these amounts paid to Anselmo, and for Anselmo’s benefit, are added no amounts are owed to Anselmo on the notes. While not accepting the total amount claimed by Duvigneaud, the trial judge permitted this additional credit of $1,000.00. We cannot say the trial judge erred.

The judgment is affirmed.

AFFIRMED.

      . The lounge was purchased by Star Amusement Inc. on Sept. 24, 1975 for the sum of $45,000. $25,000 cash was paid to Anselmo and the two promissory notes, each in the sum of $5,000, subject to these proceedings, were given to Anselmo. For the balance of the purchase price Star Amusement agreed to pay $5,000 representing the balance owed on an automobile purchased by Anselmo and withheld the sum of $5,000 for payment of any accounts payable on the purchased lounge.

      . R.S. 10:3-305 reads as follows:
      “§ 3-305. Rights of a holder in due course. To the extent that a holder is a holder in due course he takes the instrument free from (1) all claims to it on the party of any person; and

        (2) all defenses of any party to the instrument with whom the holder has not dealt except
      (a) minority, to the extent that it is a defense to a simple contract; and
      (b) such other incapacity, or duress, or illegality of the transaction, as renders the obligation an absolute nullity; and
      (c) such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms; and
      (d) discharge in insolvency proceedings; and
      (e) any other discharge of which the holder has notice when he takes the instrument.”

      . R.S. 10:3-302(1) reads as follows:
      “§ 3-302. Holder in due course.
      (1) A holder in due course is a holder who takes the instrument
      (a) for value; and
      (b) in good faith; and
      (c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.”

      . R.S. 10:3-307(3) provides:
      “§ 3-307. Burden of establishing signatures, defenses and due course.

      (3) After it is shown that a defense exists a person claiming the rights of a holder in due course has the burden of establishing that he or some person under whom he claims is in all respects a holder in due course.”


author: BOUTALL, Judge.

text:
    Richard N. BOUDOIN, Individually and on Behalf of his Minor Son, Willis Paul Boudoin v. SCHWEGMANN BROS. GIANT SUPERMARKET.
    No. 10089.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.

      Beard, Blue, Schmitt, Mathes, Koch & Williams, William G. Tabb, III, New Orleans, for Schwegmann Bros. Giant Supermarket, Inc., defendants-appellants.
    William J. Branum, Metairie, for Anthony’s Air Conditioning, Inc., defendant-ap-pellee.
    Bendana & Carlton, Wayne H. Carlton, Jr. and Orlando G. Bendana, New Orleans, for Richard N. Boudoin et al, plaintiffs-ap-pellees.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is a case involving recovery of damages for injuries caused by the collapse of a metal railing.

Richard Boudoin, appellee, filed suit to recover damages on behalf of his 13 year old son, Willis, whose arm was cut when a. metal railing collapsed outside Schweg-mann Bros. Giant Supermarket, appellant in this action. Schwegmann then brought a third-party demand against-Anthony’s Air Conditioning, Inc., which had repaired its railings four days prior to the alleged injury. After trial on the merits, judgment was rendered in favor of Boudoin and against Schwegmann’s in the amount of $2,000 plus interest and costs. The judgment also dismissed the third-party demand against Anthony’s. It is from this judgment that Schwegmann’s appeals.

Appellant’s first contention is that the trial court erred in refusing to find that Willis Boudoin was contributorily negligent and thereby refusing to bar recovery. Civil Code Article 2322 provides: The jurisprudence has held that structures not necessarily intended for habitation may be comprehended as buildings within this Article. Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1978); Cothern v. Larocca, 255 La. 673, 232 So.2d 473 (1970). Further, it has been decided that necessary appurtenances to structures and movables made immovable by attachment which have fallen into ruin or are defective may also be included within the scope of this article. Olsen, supra; Cothern, supra.

“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

We feel that Article 2322 controls this fact situation. It is clear that the railings which extended on three sides of the store fit within the purview of the article and its accompanying jurisprudence. The owner’s fault in such a case is founded upon the breach of his obligation to maintain or repair his building so as to avoid creation of risk of undue injury to others. The owner is absolved from liability only if the thing owned by him falls, not because of its defect, but rather because of the fault of some third person or of the person injured thereby, or because the fault was caused by an irresistible force not usually foreseeable. Loescher v. Parr, 324 So.2d 441 (La.1975); Olsen v. Shell, supra.

We reject, as did the trial judge, the contention that the fall of the railing was due to the fault of the victim. Appellants contend that Willis was “tight-rope walking” across the top of the railing as the collapse occurred. Although admitting that he had done this previously at Schweg-mann’s, Willis testified that at the time of the accident he was leaning against the railing and not walking on it. The trial judge specifically stated in his reasons for judgment that the boy was telling the truth. Such a reasonable evaluation of credibility should not be disturbed by an appellate court even if the court feels that its own evaluation and inferences are as reasonable. See Canter v. Koehring, 283 So.2d 716 (La.1973). There is no basis in the record for us to reverse this finding by the trial judge since there was no evidence presented at the trial to directly contradict Willis’ description of the accident.

Appellant’s second contention is that the injuries were due to the fault of a third party, Anthony’s Air Conditioning. In Olsen v. Shell Oil Company, supra, the Louisiana Supreme Court states the following:

“The fault of a ‘third person’ which exonerates a person from his own obligation importing strict liability as imposed by Articles 2317, 2321, and 2322 is that which is the sole cause of the damage, or the nature of an irresistible and unforeseeable occurrence — i. e. where the damage resulting has no causal relationship whatsoever to the fault of the owner in failing to keep his building in repair, and where the ‘third person’ is a stranger rather than a person acting with the consent of the owner in the performance of the owner’s non-delegable duty to keep his building in repair.”

It is clear that appellant cannot escape liability for this accident because of the alleged negligence of Anthony’s. Further, we agree with the trial judge that the evidence does not establish that negligence. Anthony’s had no contractual agreement with Schwegmann’s which would impose upon it the duty to discover and remedy each break in the railings as it arose. Anthony’s did only that work which it was specifically requested by Sehwegmann’s to do. Since there was no showing that the particular railing in question was defectively repaired or had ever been repaired by Anthony’s, the trial judge was correct in dismissing the third-party demand.

The final contention is that the trial judge erred in awarding excessive damages. In view of the evidence showing that Willis has a prominent scar approximately IV2 inches long and V4 inch wide, that he suffered pain and restriction of activities for approximately six weeks, and that he still has pain when he presses on his left hand, we cannot say that an award of $2,000 was an abuse of the trial court’s wide discretion in fixing damage awards. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

For all of the above reasons, the judgment below is affirmed at appellant’s cost.

AFFIRMED.

      . The trial judge stated in his reasons for judgment:
      “This Court was impressed with the fact that he admitted on the stand that he had indeed on previous occasions walked on top of the railings and had been warned not to. However, he insisted that the accident occurred when he merely went to lean up against the railing. This Court believes that young Boudoin was telling the truth. Although in this situation it is difficult for a court to pinpoint many objective reasons why it believes or disbelieves a witness, in this case this Court points out that young Boudoin’s story has been consistent from the time the accident occurred until trial and that the subject railing was found to be laying flat out in the street, which would be consistent with young Boudoin’s story, although, admittedly, not necessarily inconsistent with defendant’s version.”

      . An employee of Schwegmann’s testified that he saw Willis and one other walking on the railings prior to the accident, but he could not say whether or not it was the particular railing in question.

      . The evidence shows these railings were frequently being hit by maneuvering automobiles and that Schwegmann’s personnel would call Anthony’s when repairs were necessary.


author: LEMMON, Judge.

text:
    LOUISIANA NATIONAL LEASING CORPORATION v. ADF SERVICE, INC., David Vosbein and Chris C. Rogus, Jr.
    No. 10104.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Writ Granted June 15, 1979.
    Sanders, Downing, Kean & Cazedessus, Charles S. McCowan, Jr. and John Dale Powers, Baton Rouge, for plaintiff-appellee.
    Vosbein, Hilleren & Bains, David Paul Bains, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   LEMMON, Judge.

This is a suit on a contract whereby Louisiana National Leasing Corporation (LNL) allegedly leased a photocopy machine to ADF Services, Inc. (ADF). Defendants, ADF and the two individuals who guaranteed payment of the contract, have appealed from a judgment which awarded LNL the amount of the balance of the installments.

I

In early 1976 a salesman from Spectrum Systems, Inc. (SS) contacted ADF’s vice president with a proposal to sell ADF a photocopy machine on a cash or a lease-purchase arrangement. Since the monthly payments under the lease purchase proposal represented a savings over the amount ADF was paying monthly for the leased photocopier then in use, ADF’s officer authorized installation of the machine on a trial basis and subsequently agreed to the lease-purchase proposition.

On March 12, 1976, the date the contract between LNL and ADF was executed, LNL entered the transaction, being introduced as the financing agency for SS’s lease-purchase contracts. ADF’s officer, who is an attorney, checked the typed figures on the two-page printed contract and, after being assured the printed terms and conditions were those agreed upon earlier, signed the contract.

Contemporaneously with executing the contract with ADF, LNL purchased the machine from SS for the sum of $4,754.10. The LNL-ADF contract showed the list price as $4,485.00, the sales tax as $269.10, and the total cost as $4,754.10, and provided for 50 monthly payments of $133.35 (a total of $6,667.50). The contract was otherwise completely couched in terms of lease, providing that ownership was to remain in the lessor, that the lessee was to keep the equipment in good repair and to make all necessary repairs at its own expense, and that the lessee was to surrender the equipment at the termination of the lease. As to warranties the contract provided:

“Lessor will request the supplier to authorize Lessee to enforce in its own name all warranties, agreements or representations, if any, which may be made by the supplier to Lessee or Lessor, but Lessor itself makes no express or implied warranties as to any matter whatsoever, including, without limitation, the condition of equipment, its merchantability or its fitness for any particular purpose. No defect or unfitness of the equipment shall relieve Lessee of the obligation to pay rent or any other obligation under this lease.” (Emphasis supplied)

The machine operated properly for two or three months, but trouble started when ink rubbed off and later when the machine produced scorched copies. Finally, in October, 1976 a sheet of paper caught fire during the copying process, and when the same thing occurred on the second or third sheet to be processed after the machine had been “repaired” by SS (who had a one-year service contract as part of the agreement), ADF demanded that the machine be replaced. When SS refused, ADF tendered the machine to both SS and LNL by registered mail and discontinued payments. This suit by LNL followed.

II

LNL, in instituting this litigation, claimed the status of lessor. While ADF argues alternatively that LNL was actually a vendor and that the overall transaction constituted a prohibited sale with reservation of title (common law conditional sale), we accept for purposes of this decision that LNL was the lessor and owner of the machine.

The difficulty with LNL’s position is that it wants all of the rights of a lessor, but none of the obligations.

Lease is a synallagmatic or bilateral contract, by which one party is obliged to give the enjoyment of a thing, while the other is obliged to give the agreed price. C.C. art. 2669. In bilateral contracts the obligation of one party is the cause of the obligation of the other. Litvinoff, 7 Louisiana Civil Law Treatise — Obligations, Book 2, § 132 (1975). Thus, if one party fails in an obligation which is of the essence of the contract, there is no cause for an enforceable obligation on the other party.

In giving the enjoyment of the thing, the lessor guarantees against vices and defects which may prevent the thing’s being used for its intended purpose. C.C. art. 2695. The obligation to give a thing free from vices and defects which render the thing unfit for its intended use is of the very essence of a contract of lease. See C.C. art. 1764. This record establishes the machine which LNL leased to ADF was defective from the inception of the lease and was not suitable for its intended use.

Nevertheless, LNL contends ADF validly waived any guaranty of freedom from vices and defects, since the contract contains a printed waiver of warranty. While such a waiver might be valid under some circumstances as a specifically bargained for provision in a lease, we conclude there was no effective waiver under the circumstances of this case. Here, the contract called for installments totaling the full $4,754.10 value of the machine plus apparent financing charges of almost $2,000.00, and the lessor simply cannot be allowed to exact a waiver of the obligation of warranting fitness and guaranteeing freedom from vices and defects while retaining the right to collect rent for the entire 50-month term, even if the machine proves defective within a short period after commencement of the lease.

LNL could have chosen to lend ADF the purchase price and accept a mortgage as security, in which ease LNL would not have enjoyed the advantages of ownership, but would not have been burdened with the disadvantage of the obligations imposed on a lessor. LNL chose instead to purchase the machine and to lease it to ADF, thereby achieving the advantages of ownership, but sought to avoid the essential obligations of a lessor by providing that the lessee was obliged to pay rent regardless of any defect or unfitness of the thing leased. Such a provision is contrary to the basic obligations which are the essence of a contract of lease, since the furnishing of the thing free from defects is the counter-performance that a lessor must render in return for the right to collect rent.

For these reasons, the judgment of the trial court is reversed, and it is ordered that plaintiff’s suit be dismissed at its cost.

REVERSED AND RENDERED.

      . The only indicia of sale in the written contract was the reference to the sales price and the sales tax, but this is far from conclusive proof that the parties intended a sale. Furthermore, while ADF’s officer testified that there was a contemporaneous verbal agreement for a lease-purchase arrangement, his testimony did not fairly indicate that LNL was a party to such an agreement.

      . This guarantee imposed by law on the lessor is analogous to the warranty of freedom from vices and defects imposed by C.C. art. 2476 upon the seller, breach of which gives rise to an action for redhibition under C.C. art. 2520. 2 Planiol, Treatise on the Civil Law, § 1786 (La. St.Law Inst.Trans.1959). Even if the seller attempts to contract away any warranty of fitness, redhibition is allowed if the thing was not suitable for its intended use. See, for example, McLain v. Cuccia, 259 So.2d 337 (La.App. 4th Cir. 1972).


author: GULOTTA, Judge. SCHOTT, Judge,

text:
    Jane NICOLICH v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC.
    No. 10116.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied June 11, 1979.

      Singerman, Cosentino, Broussard, Toups & Troyer, Martin L. Broussard, Jr., New Orleans, for plaintiff/appellee.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, Madison C. Moseley, New Orleans, for defendant/appellant.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   GULOTTA, Judge.

In this slip and fall case the trial judge awarded plaintiff a judgment in the amount of $2,700.00. Defendant appeals. We affirm.

The record supports the trial judge’s written reasons that plaintiff was not “forewarned” of a damp, recently mopped “coke” spill on which plaintiff slipped and fell causing bruising of the left arm, left breast and abrasions of the arms and legs. The trial judge simply accepted the plaintiff’s testimony and that of her witness sister that she had not been warned of the damp spot on the floor and he rejected the testimony of a defendant’s employee that plaintiff disregarded the employee’s warning and walked through the damp area resulting in plaintiff’s fall. The employee, shortly before the fall, had mopped the spillage, had placed a garbage can on the wet area and had stationed herself in the vicinity of the mopped spill to warn others of the dampness.

The trial judge, in awarding $2,700.00 damages, indicated in his reasons for judgment that he was not “impressed by plaintiff’s description of her difficulties beyond what the Court believes to be a reasonable recovery from two abrasions.” Although a $2,700.00 award for two abrasions appears to be so excessive as to constitute an abuse of the trial court’s discretion, virtually undisputed is the fact that plaintiff suffered bruises to her left breast and left arm as well as abrasions of the legs requiring medical examination and treatment on two occasions by Dr. Irving Redler and further examination by Dr. Richard Paddison approximately nine months subsequent to the accident.

Plaintiff testified that as she fell, her left arm went into the grocery cart she was “reaching for,” and her left armpit “got caught over the edge of the basket.” Both plaintiff and her mother testified that at the time of trial (approximately sixteen months after the accident), plaintiff was still applying a heating pad to her left arm.

Although no medical evidence was offered, a medical bill from Dr. Redler in the amount of $120.00 and one from Dr. Paddi-son in the amount of $100.00 was offered into evidence. Plaintiff’s testimony considered, together with the observations and conclusions of the trial judge, we consider the $2,700.00 award to be somewhat high but not so excessive so as to constitute an abuse of the trial court’s discretion.

Accordingly, the judgment is affirmed.

AFFIRMED.

SCHOTT, J., dissenting in part.

SCHOTT, Judge,

dissenting in part.

I concur with the majority in affirming the judgment with respect to liability but dissent as to quantum.

In her petition, plaintiff alleged that she sustained injuries to her arm, leg, neck and shoulders. She gave the following testimony: After she fell down her arms started to hurt, her legs were skinned and the inner part of her arm was skinned. She hurt her left breast and her two knees. She saw Dr. Redler on the day after the accident and returned to him on March 3, about two weeks later. She saw Dr. Paddison, a neurologist, in December because of the “tingling” in her arm and returned to him on April 4. She also saw a Dr. Hackett.

However, she produced no physicians as witnesses and the only corroboration she offered was the testimony of her sister and mother who stated that she used heat treatments on her arm.

At the conclusion of the trial, the judge stated:

“The Court is not impressed by Plaintiff’s description of her difficulties beyond what the Court believes to be a reasonable recovery from two abrasions. Considering the limited nature of the medical evidence, the Court is convinced that an award of $2700.00 is reasonable.”

This award constituted an abuse of the trial court’s discretion. In affirming the judgment the majority states:

“. . . virtually undisputed is the fact that plaintiff suffered bruises to her left breast and left arm as well as abrasions of the legs requiring medical examination and treatment on two occasions by Dr. Irving Redler and further examination by Dr. Richard Paddison approximately nine months subsequent to the accident.”

The trial judge specifically rejected plaintiff’s alleged need to consult Dr. Paddison. When his bill was offered in evidence by plaintiff and defendant objected the court made the following observation:

“I think the objection to that one is an appropriate one; in view of the fact that the treatment by that doctor took place ten months after the accident had occurred. And only a doctor in this Court’s view could indicate to us whether there was a connection between what the lady said she consulted the doctor about and this accident.”

Thus, the bill from Dr. Paddison was not received and is a part of the record by proffer only.

Since we do not substitute our opinion for the trial judge’s on questions of credibility and pure facts, there is no basis to find that this plaintiff had anything except two bruises or abrasions as the trial judge found. Her medical expenses totaled $120, but this included Dr. Redler’s initial bill for $25 for a consultation and a bill for $80 for X-rays.

I recognize that each case must stand on its own merits and appellate courts are not to emphasize uniformity at the expense of independent evaluations, but at the same time an award of $2700 is more often found for an injury where there is genuine medical treatment provided over a two or three month period and some expenses are incurred for repeated treatments through this period of time. If these two abrasions which required no medical treatment whatsoever justify a $2700 award then such other injuries should bring ten times as much. Somewhere along the line the cost of goods and services, including groceries, will reflect such exorbitant awards with corresponding hardship on the general public.

In my opinion, this judgment should be reduced to the highest range of the trial judge’s discretion which is in the neighborhood of $500.

      . Neither Dr. Redler nor Dr. Paddison testified, nor were their depositions offered into evidence. Dr. Redler’s deposition was referred to but never offered into evidence.


author:
BOUTALL, Judge.
      SAMUEL, Judge,

text:
    Irvin DUFRENE v. ST. CHARLES PARISH POLICE JURY.
    No. 10130.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.

      Garland R. Rolling, Metairie, for Irvin Dufrene, plaintiff-appellee.
    James L. Donovan, Donovan & Lawler, Metairie, for St. Charles Parish Police Jury, defendant-appellant.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

Defendant, St. Charles Parish Police Jury appeals from a judgment awarding Irvin Dufrene permanent total disability workmen’s compensation benefits, but denying plaintiff’s prayer for penalties and attorney’s fees. Plaintiff has answered the appeal seeking those penalties and attorney’s fees. In this court, the defendant makes one basic contention, that the trial court erred in awarding total permanent disability as opposed to permanent partial disability-

The only evidence adduced consists of the testimony of plaintiff himself and the medical reports of Dr. Walter Brent, Jr., an orthopedic surgeon, stipulated in evidence. The trial court found plaintiff’s disability was due to his inability to work without pain and the fact that he had only one skill, heavy equipment operator, which he was unable to perform due to the injury sustained.

Plaintiff was employed by the defendant as a heavy equipment operator. His job consisted mostly of operating draglines and bulldozers, including working with heavy tools such as sledge hammers. On April 27, 1976 he was operating a dragline and while so employed, he was injured when a lever on the dragline became unlocked and struck plaintiff on his left wrist (he is right-handed.) He was paid compensation totaling $1,020 and returned to light duty thereafter on the advice of his doctor. The trial judge gave detailed findings of fact in his consideration of the events following the injury, and we quote them here.

“ * * * From the testimony of plaintiff and the medical reports of Dr. Brent it appears that plaintiff injured his left wrist on April 27, 1976: That after treatment by Dr. Vial for a few weeks he was advised to try returning to work.
“He did so but the wrist swelled and was painful and he could not perform his duties. He returned to the doctors and was referred to Dr. Brent.
“On June 2, 1976, Dr. Brent found the plaintiff to be suffering tenosynovitis of the left wrist with attendant swelling and complaints of pain. He injected the wrist and advised plaintiff to continue with light types of activity.
“Plaintiff’s wrist continued to swell and pain him when he attempted to work and on August 4, 1976, Dr. Brent reported that the left wrist had developed teno-synovitis with a ganglion at the anterior lateral aspect of the wrist area. Since medication and injections had not improved the wrist Dr. Brent advised that he had made arrangements for surgical repair to the wrist.
“On September 22, 1976, Dr. Brent reported that a mass had been removed from the anterior aspect of the wrist but that a ganglion of the wrist was present. On that day Dr. Brent removed the splint and sutures. He instructed plaintiff to start gradual activities but said he could not perform any type of heavy work.
“On October 27, 1976, Dr. Brent found plaintiff to have increased his activities; that the swelling had decreased; but that plaintiff had a 15% loss of function of the wrist. Dr. Brent felt this would improve with activities and suggested that plaintiff should be able to return to his former occupation by October 29, 1976.
“On November 10, 1976, Dr. Brent reported that plaintiff had returned to work with a minimal amount of discomfort, but with 5% limitation of wrist motion, thickening of the anterior wrist and some swelling. He discharged plaintiff as of that date with a permanent disability of the left upper extremity of 5%.
“However, on April 20, 1977, Dr. Brent reported that plaintiff complained of pain and swelling of the wrist when he does heavy work. Plaintiff had been away from work for a month when Dr. Brent examined him, nonetheless he found mild tenderness of the wrist. Dr. Brent attributed the residual injury to the wrist and was of the opinion that plaintiff might have to discontinue his heavy type occupations.
“On May 4, 1977, Dr. Brent reported that plaintiff had swelling and pain when required to perform heavy duty but could perform light activities with only tenderness of the wrist being apparent.
“On May 26, 1977, Dr. Brent again rated the permanent disability of the left wrist to 15%. It was his opinion that plaintiff could do his former work with limitations.
“On June 29, 1977, Dr. Brent discharged plaintiff with a 15% disability of the wrist and with a prognosis as follows: ‘I feel that he can be discharged on this date with the understanding that he will continue to have discomfort with heavy type of work.’
“Plaintiff has only one skill: He is a heavy equipment operator. Operating heavy equipment also requires handling, lifting, and repairing heavy materials in addition to the heavy physical activities involved in the operation of the equipment.
“The evidence does not show that there is an occupation or related work activity that plaintiff can gainfully fulfill and occupy. The law relative to working in pain is so well established that comment is unwarranted.”

Our settled law is that a plaintiff in a compensation case must establish his claim to a legal certainty and by a reasonable preponderance of the evidence. Also pertinent here is the rule that an injured workman is not required to work with substantial pain. Whether the compensation claimant is unable to work without pain sufficiently severe to be considered disabling is a question of fact.

Although the evidence is somewhat sparse, the plaintiff testified that his wrist was swollen and gave him considerable problems, that it was painful and at times painful enough that he could hardly work at all. It is evident that, supported by the medical reports, his testimony was given great weight by the trial judge, and the judge found that he cannot perform the work demanded of him as a heavy equipment operator.-

We agree with this conclusion, but we do not agree that the evidence is sufficient to support a finding of permanent total disability as defined in R.S. 23:1221(2), as amended by Act 583 of 1975, effective September 1, 1975 and applicable to this 1976 accident.

Prior to this amendment it would appear that the judgment could be maintained under the principles set out in the case of Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976) as stated p. 987:

“An injured employee is deemed totally and permanently disabled ‘whenever he is unable to perform work of the same or similar description to that which he performed before the accident.’
* * * * * *
“A judgment for total permanent disability should be awarded when the claimant is shown to be totally disabled at the time of trial and the duration of such disability is indefinite or the evidence does not clearly indicate its duration.”
* * * * * *

However the 1975 amendment has statutorily changed the definition of permanent total disability and partial disability to the following:

“§ 1221. Temporary, permanent, or partial disability; schedule of payments.
* * ^ * * *
“(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
“(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on and after September 1, 1975, and on or before August 31, 1976; * * ”.

In applying the evidence to this law we note that Dufrene testified his wrist gave him problems and that it was “at time painful enough to where I could not hardly work at all.” The doctor’s reports show a consistent opinion that only heavy work (lifting or pulling) associated with his employment causes him problems, and “that he will continue to have discomfort with heavy type of work. I am giving him a fifteen percent partial perma (sic) disability of the left upper extremity”. There is no other than Dufrene’s testimony and the doctor’s reports.

This evidence is sufficient to support a judgment of partial disability of the employee under Subsection (3) in that he could not perform the duties in which he was customarily engaged when injured or similar duties for which he was fitted by education, training and experience, but does not support a judgment under Subsection (2) of permanent total disability to engage in any gainful occupation. See Lachney v. Cabot Corporation, et al., 368 So.2d 500 (La.App. 3rd Cir. 1979). We would agree that the employee is not called upon to negate his future employment in each of the many occupations which might be available, but he must show that he reasonably could not do work of a reasonable character available to him. The above quoted evidence shows only that Dufrene cannot engage in heavy work that involves lifting or pulling with his left arm. It does not negate his ability to do lighter work of the same character, for example, lighter machines or vehicles, or work not involving heavy lifting or pulling with his left hand. See for comparison Kilbourne v. Armstrong, 351 So.2d 802 (La. App. 1st Cir. 1977), and Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App. 3rd Cir. 1978).

Accordingly, we hold that a judgment of permanent total disability is erroneous under the facts of this case, and that the employee has a partial disability as defined in Subs. (3). He is entitled to 66%% of the difference between the wages he was earning at the time of the injury and any lesser wages which he actually earns in any week thereafter during the period of disability, but not beyond a maximum of 400 weeks, subject to the limitation on amounts stated in R.S. 23:1202(1).

Dufrene was employed at an hourly rate of $4.50 for 8 hours per day, 5 days per week, or $180 per week, and so qualifies for the maximum amount of $85.00 per week. He was paid $1020 in compensation, or 12 weeks. The record does not inform us of any employment up to trial except that Dufrene says he worked for several months after the injury but then could not return to work. It is reasonable to conclude that during this period Dufrene was temporarily totally disabled beyond the 12 weeks of compensation paid him. Rather than remand for a more precise determination of benefits due during this period, we conclude that Dufrene is entitled to $85 per week from date of injury to date of trial, subject to a credit of 12 weeks compensation paid.

The last issue to resolve is appel-lee’s claim for penalties and attorney’s fees. The evidence states that compensation was stopped in November of 1976, and we have delineated above the consecutive reports of the treating physician as considered by the trial judge in order to indicate the basis for our decision here. By reference to those documents we note that the letter of October 27, 1976 gave a probable return to work date but also advised of a 15% disability. The letter of discharge of November 10, 1976 may have suggested no further need of medical attention, but it reported a 5% disability, yet beyond that date the plaintiff still continued to suffer and the subsequent reports show an increase of disability to 15% and the fact that plaintiff was still continuing to have problems. While there may have been some justification for termination of compensation payments in reliance upon the physician’s reports in November, when an insurer receives medical information indisputably showing disability at a subsequent date the insurer may not blindly rely upon the early report and solely on its basis avoid penalties for arbitrary non-payment of compensation benefits indisputably due a disabled workman. Walker v. Gaines P. Wilson & Son, Inc., supra. That case further affirmed the holding in Fruge v. Pacific Employers Insurance Company, 226 La. 530, 76 So.2d 719 (1954) to the effect that even if the doctor’s undisputed report showed only partial disability at the time following initial discharge, an insurer may avoid penalties upon the ultimate award for total disability only if it unconditionally tenders benefit for the partial disability shown. See also Guillory v. Travelers Insurance Company, 294 So. 215 (La.1974). We hold that plaintiff is entitled to the statutory penalties against the employer provided by R.S. 23:1201.2. Because compensation payments of $1,020 have been paid, the plaintiff is entitled to 12% of the difference between the amount paid and the amount past due, and all reasonable attorney’s fees for the prosecution and collection of such an amount. Kilbourne v. Armstrong, supra. We determine that reasonable attorney’s fees in this case should be fixed at the sum of $1,000.

Accordingly, we amend and recast the judgment appealed and we render judgment herein in favor of plaintiff, Irvin Du-frene, and against defendant, St. Charles Parish Police Jury, decreeing Irvin Dufrene to have partial disability as defined in R.S. 23:1221(3) and to be entitled to 66%% of the difference between the wages he was earning at the time of the injury and any lesser wages he actually earns thereafter, limited to a maximum of $85 per week, during the period of his disability but not beyond a maximum of 400 weeks, subject to a credit for 12 weeks compensation paid, and further awarding statutory penalties of 12% on all amounts past due and attorney’s fees of $1,000.

All costs in both courts shall be borne by appellant.

AMENDED AND RECAST.

SAMUEL, J., concurs.

SAMUEL, Judge,

concurring.

I entertain considerable doubt that the plaintiff in this case has established with the required certainty that he cannot work without substantial pain. This doubt is based on the fact that only the plaintiff gave testimony relative to pain and the treating physician’s reports indicate discomfort rather than pain. However, I cannot say that the majority’s conclusion is incorrect.

Accordingly, I respectfully concur.

        .Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286; Knighten v. Am. Amusement Company, La.App., 272 So.2d 60; Price v. Walgreen’s Company, La. App., 204 So.2d 67; Flowers v. E. M. Toussel Oil Co., La.App., 190 So.2d 147; Williams v. New Orleans Paper Box Company, La.App., 185 So.2d 109.

      . Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849; Brannon v. Zurich General Accident & Liability Ins. Co., La.App., 59 So.2d 836; Flowers v. E. M. Toussel Oil Co., supra, note I.

      . Ball v. American Marine Corporation, 245 La. 515, 159 So.2d 138; Flowers v. E. M. Toussel Oil Co., supra, note 1.


author: LEMMON, Judge. GULOTTA, Judge,

text:
    Delores RODY, Wife of/and Otis C. James, Individually and as Administrators of the Estate of their Minor Son, Denis A. James v. Thomas ROSS and Allstate Insurance Company.
    No. 10148.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Writ Refused June 15, 1979.
    Wiedemann & Fransen, Lawrence D. Wiedemann, Matthew F. Belin, New Orleans, for plaintiffs-appellees.
    Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr., New Orleans, for Allstate Ins. Co., defendant-appellant.
    Before REDMANN, LEMMON, GULOT-TA, STOULIG and BOUTALL, JJ.
   LEMMON, Judge.

Is it unreasonable for a motorist to proceed into an intersection of two local neighborhood streets at 15 to 20 miles per hour when the motorist has the right of way on a one-way street in a residential neighborhood with a posted speed limit of 25, when there are cars parked on both sides of the street and the motorist’s view to his right at the intersection is obstructed by a camper parked near the corner and by a building which is situated almost to the corner, and when the motorist knew that children played “all over the streets” in the general neighborhood?

Defendant motorist did so, and the right front of his car struck a five-year old child who suddenly and without warning walked into the street and into his path from behind the camper on his right at the intersection. The trial court, although finding the obstacles prevented the motorist from seeing the child on the sidewalk prior to his appearance from behind the camper, held the motorist liable for driving “his auto between other vehicles parked on both sides of him into a blinded area where pedestrians could (should) have been expected” and “not slow(ing) down as he approached the corner”.

Plaintiffs’ reliance on the case of Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978) is improper. The Baumgartner decision, which adopted the “humanitarian doctrine” to allow recovery when a negligent motorist strikes a negligent pedestrian, is based on the consideration that a motorist, as compared to a pedestrian, has the greater duty of careful lookout. The court gave no indication that it intended to eliminate the requirement that the pedestrian prove negligence on the part of the motorist in order to recover, but rather recognized that a motorist must use reasonable care and is liable when he “saw or should have seen the impending peril and had, at that moment, the opportunity to avoid it”. Furthermore, the court distinguished three cases which held the motorist not to be liable, on the basis that in the cited cases “the motorist was not. negligent since he discovered the pedestrian as soon as it was possible for him to do so, and did all in his power to avoid the collision”.

In the present case the accident occurred around noon oh a clear, dry day in early May (during normal school hours). There were no children seen in the block prior to the intersection where the accident occurred. There was no playground or school in the neighborhood. There were no pedestrians visible in or near the street or approaching the street on the sidewalk. The fact that defendant stopped with only 18 feet of skid marks attests to the slowness of his rate of travel.

Under these factual circumstances one could not reasonably draw the legal conclusion that defendant should have seen the pedestrian before he appeared in the street 15 to 18 feet in front of defendant’s vehicle or that defendant had an opportunity to avoid the accident after discovering the pedestrian’s presence as soon as it was possible to do so.

This decision basically turns on a determination of the duty of a motorist to a pedestrian under the overall circumstances of a particular case. Holding defendant driver liable under the circumstances of this case would simply place too great a duty on a right of way motorist faced with no relatively unusual circumstances that dictate extraordinary care. Such a holding would remove the test of reasonableness as the applicable standard of care and would virtually make the driver of an automobile liable in all pedestrian accidents.

For these reasons the judgment of the trial court is reversed, and it is now ordered that plaintiffs’ suit be dismissed.

REVERSED AND RENDERED.

GULOTTA, J., dissents and assigns reasons.

GULOTTA, Judge,

dissenting.

I dissent.

On May 8, 1976, between 12:00 and 12:30 p. m., Thomas Ross was driving his automobile in a downtown direction on Laurel Street in the city of New Orleans. Ross testified that he was traveling at a speed of approximately 15 or 20 mph in a 25 mph zone. Laurel Street is a one-way street and at the time of the accident automobiles were parked on both sides of the street. According to the trial judge, at the uptown river corner of the intersection of Laurel and Constantinople Streets “a pickup truck with a camper was parked alongside the curb almost up to the intersection . . ” This intersection was controlled by stop signs on Constantinople, a two-way street.

The five year old child, Denis James, accompanied by his fifteen year old sister, was walking on the sidewalk along Constantinople Street toward the lake in the direction of Laurel Street. Because of the parked truck at the intersection on Laurel Street, located to the driver’s right and to the pedestrian child’s left, the view of both parties was obstructed. While walking approximately an arms length in front of his sister, Denis walked in front of the parked truck at the intersection and into the path of the Ross automobile. When the child reached approximately two and ■ one-half feet into the street from the parked truck, the right front of the Ross automobile struck the child.

According to the driver, he first saw the child when the child came into the street “in front of the truck.” At that time he was approximately eighteen feet from the child and immediately applied his brakes, veered to the left, but the right front of the car unavoidably struck the child, knocking him approximately twenty to twenty-five feet into the intersection. Skid marks made by the investigating police officer measured eighteen feet.

Both parties to this litigation rely on the recent holding of the Louisiana Supreme Court in Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978). In that automobile pedestrian accident the Supreme Court concluded that a pedestrian’s contributory negligence will not bar his recovery where a motorist who could have avoided injury to a pedestrian by the exercise of reasonable care, failed to exercise that care.

Defendant draws from the following language in Baumgartner:

“Further, where injury results, the burden should fall on the motorist who, with the exercise of care reasonable under the circumstances, saw or should have seen the impending peril and had, at that moment, the opportunity to avoid it.”

and the following additional language:

. [A] motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault.”

It is clear from the evidence that the truck-camper parked at the intersection to the right of the motorist (the direction from which the child was walking) obstructed the driver’s view of persons crossing Laurel Street. As pointed out by the trial judge, the truck prevented the motorist from seeing pedestrians on the sidewalk. Further, George’s Bar which was located to the driver’s right close to the intersection, on the uptown river corner, partially limited the motorist’s view of the intersection. Under the circumstances I cannot conclude that the driver in this case who maintained a speed of 15-20 mph on a right-of-way street with parked automobiles on both sides of an intersection with an obstructed view, and who should have anticipated pedestrians crossing the intersection, exercised reasonable care. Additionally, the driver testified that he was familiar with the area and although he did not see children in the area at the time of the accident, he had knowledge that children in that area play “all over the street.”

As pointed out by the court in Baumgartner, citing Mequet v. Algiers Mfg. Co., 147 La. 364, 84 So. 904 (1920):

“Our law imposes an additional burden upon motorists approaching a pedestrian crosswalk to use more than ordinary care to see what is ahead; they must expect that people may be crossing and be prepared for that possibility.”

I would affirm the judgment of the trial court.

      . The court further emphasized:
      “It must be noted however, that a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault”. (Emphasis supplied)

      . Because a five year old child cannot be guilty of contributory negligence, the Baumgartner holding, in so far as contributory negligence is concerned, need not be invoked. Jackson v. Jones, 224 La. 403, 69 So.2d 729 (1954); Smith v. Preferred Risk Mutual insurance Company, 185 So.2d 857 (La.App. 3rd Cir., 1966); Pea v. Smith, 224 So.2d 37 (La.App. 1st Cir., 1969), writ denied, 254 La. 795, 226 So.2d 923 (1969); Cheramie v. Great American Insurance Company, 198 So.2d 726 (La.App. 1st Cir., 1967), writ denied, 251 La. 25, 202 So.2d 649 (1967).


author: BEER, Judge. REDMANN, Judge,

text:
    Dorales PALMISANO and Marie Barrios v. UNITED STATES FIDELITY & GUARANTY COMPANY and Clendon Morrison.
    No. 10288.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied June 11, 1979.
    Norman Mopsik, New Orleans, for plaintiffs-appellants.
    Wiedemann & Fransen, Clifton A. Adcox, New Orleans, for defendants-appellees.
    Before REDMANN, BEER and GARRISON, JJ.
   BEER, Judge.

These proceedings result from an October 31, 1976 automobile accident. Suit was filed on August 26, 1977 by Dorales Palmi-sano and by the guest passenger in the Palmisano vehicle, Marie Barrios, naming, as defendants, Clendon Morrison and United States Fidelity & Guaranty Company (hereinafter, “USF&G”), alleged (incorrectly) to be Morrison’s automobile liability insurer. Subsequently, on November 10, 1977, Marie Barrios filed a first supplemental and amended petition against Dorales Palmisano and her alleged liability insurer, also (correctly) USF&G. This was followed by a second supplemental petition in which Barrios correctly named United States Fidelity & Guaranty Company as the insurer of Mrs. Palmisano only, Morrison being uninsured. USF&G filed an exception of prescription which the trial court maintained and, accordingly, dismissed Barrios’ suit against USF&G. She appeals.

USF&G was named as a defendant in the original suit only as the alleged insurer of Morrison and was named as a defendant in the supplemental pleadings only as the alleged insurer of Palmisano. Barrios’ original petition states a cause of action based on the negligence of Morrison. Her supplemental petition states a cause of action based, in the alternative, on the negligence of Palmisano.

For interruption of prescription to occur, the defendant joined after the prescriptive period has run must be solidarily liable with the defendant who was timely cited and served within the one-year period. Had Barrios alleged that Palmisano was solidarily liable with Morrison, the original (timely) suit against Morrison would have interrupted prescription in favor of Barrios and against Palmisano and her insurer, USF&G. However, there is no allegation of solidary liability between Morrison and Palmisano in the original petition. There could not be, since they (Barrios and Palmi-sano) are co-plaintiffs. Thereafter, in her first supplemental petition, Barrios only alleges negligence of Palmisano in the alternative.

In Farrell v. Department of Police, 290 So.2d 457 (La.App. 4th Cir. 1974), we concluded that LSA-R.S. 9:5801 is to be liberally construed so as to require only that the defendant be notified of the proceedings instituted against him in order to toll prescription. However, the original petition by Barrios and Palmisano against Morrison and (incorrectly) USF&G, can not be construed as putting USF&G on notice of a claim against them as the liability insurer of the then plaintiff, Palmisano.

Notwithstanding the observation by Mr. Justice Tate, as follows:

“If the original timely pleading gives actual notice to a party that a formal claim or defense is being made based upon a particular factual situation, no essential protective purpose of a prescriptive statute is violated by permitting relation back of a postprescriptive amendment based on the same factual situation.” 43 Tul.L.Rev. 211, 232,

we must conclude that the original petition by Barrios and Palmisano did not give sufficient actual notice of the claim insofar as USF&G was concerned. They were not the insurer of Morrison and had no reason to believe that a suit against him by their insured, Palmisano, required any acknowledgment, investigation, etc. The judgment is affirmed.

AFFIRMED.

REDMANN, J., dissenting.

REDMANN, Judge,

dissenting.

Trahan v. Liberty Mut. Ins. Co., La.1975, 314 So.2d 350, does not control this case. There Liberty Mutual was sued in a capacity it had, namely insurer of executive officers whom it did in fact insure; there was no mistake and on receipt of that suit Liberty Mutual properly set about its defense.

Here USF&G is sued in a capacity it did not have, namely insurer of Morrison’s automobile which it knew it did not insure; there was a mistake. Any suit against USF&G arising out of the Palmisano-Morri-son accident had to be based on insurance of Palmisano rather than Morrison.

Furthermore, unlike Trahan’s, this case’s original petition sets forth the essential factual elements of the cause of action against USF&G, with the one exception that it omits to allege that USF&G insures Palmi-sano. The “cause of action . . . sued upon” within R.S. 9:5801 is an intersectional collision so described that the negligence of both drivers is suggested. Accordingly, under R.S. 9:5801 the original petition interrupted “[A]ll prescriptions affecting the cause of action therein sued upon . as to all defendants. . . .” USF&G was an original defendant and the court in which the suit was filed was “a court of competent jurisdiction and in the proper venue” within R.S. 9:5801.

The judgment should be reversed.


author: SAMUEL, Judge.

text:
    Wayne MACKIEWICZ v. WESTINGHOUSE ELECTRIC CORPORATION et al.
    No. 10364.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Nelson, Nelson & Lombard, Ltd., John P. Nelson, Jr., New Orleans, for petitioner.
    Christovich & Kearney, Lawrence J. Ernst, New Orleans, for relators.
    Before SAMUEL, BEER and GARRISON, JJ.
   SAMUEL, Judge.

This is a suit for personal injuries. Following trial, there was judgment dismissing plaintiff’s suit against remaining defendants. Plaintiff appealed and then filed a motion seeking permission to continue the prosecution of this action in forma pauperis.

On October 25, 1978, after a hearing on that motion, there was judgment allowing plaintiff to continue the prosecution of the matter “without the prepayment of costs as they accrue or to give security thereof”. However, the judgment further provided:

“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that this Order does not pertain to the costs of the transcript of evidence produced during the course of the trial and, hence, plaintiff, Wayne Mackiewicz, is required to pay the cost of the transcript of the testimony and evidence recorded during the trial.”

Plaintiff then applied to this court for writs which we granted for the purpose of ascertaining the validity of that part of the judgment which, as quoted above, requires the plaintiff to pay the cost of the transcript and evidence adduced during the trial. That is the only matter now before us.

The law on the question is quite clear. In pertinent part .Code of Civil Procedure Article 5185 reads:

“When an order of court permits a party to litigate without the payment of costs, until this order is rescinded, he is entitled to:
(1) All services required by law of a sheriff, clerk or court, court reporter, notary, or other public officer in, or in connection with, the judicial proceeding, including but not limited to the filing of pleadings and exhibits, the issuance of certificates, the certification of copies of notarial acts and public records, the issuance and service of subpoenas and process, the taking and transcribing of testimony, and the preparation of a record of appeal;” LSA-C.C.P. Art. 5185. (emphasis ours).

We agree with plaintiff. The court is without authority to exclude any of the rights of a party permitted to litigate without the payment of costs. Permission to litigate in forma pauperis entitles the party so permitted to all the rights set out in Article 5185 until and unless such permission is rescinded. The above quoted portion of Article 5185 specifically states those rights include all services of the court reporter, the taking and transcribing of testimony, and the preparation of a record of appeal.

Accordingly, the writs applied for are made peremptory and the trial judge is now directed and ordered to furnish plaintiff with a transcript of the testimony taken during the trial and a record of appeal.

WRITS MADE PEREMPTORY.


text:
    Joseph E. SCHLUMBRECHT, III v. EXECUTIVE OFFICERS OF BROWN AND ROOT, INC., and XYZ Insurance Co.
    No. 10386.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Cristovich & Kearney, John T. Holmes, New Orleans, for relator.
    Edwards, Cullen & Loeb, David C. Loeb, Gretna, for respondents.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

Highlands Insurance Company applied for supervisory writs pursuant to C.C.P. art. 2201, complaining of a judgment which overruled its exception of prescription. We granted a writ of review to ascertain the correctness of the judgment, because on the undisputed facts the judgment appeared to be erroneous, and because reversal under our supervisory jurisdiction would terminate the litigation and avoid the necessity of a trial on the merits. Mangin v. Auter, 360 So.2d 577 (La.App. 4th Cir. 1978).

Plaintiff’s tort suit, seeking to recover damages incurred in a December 8, 1975 accident, was filed on September 30, 1976. The petition named defendants as follows:

“a). Executive Officers of Brown and Root, Inc., all of whom are persons of the full age of majority and residents of the State of Louisiana, representing any and all of the executive officers, directors, supervisors, foremen or any persons with supervisory authority, as regards Brown and Root, Inc. and Joseph E. Schlum-brecht, III in this matter. Due to the fact that their names are unavailable to plaintiff at this particular time, such will be supplied the Court at a later date by amendment of the pleadings herein.
“b). The XYZ Insurance Company, a foreign insurance corporation, organized and existing under the laws of a State other than Louisiana, but authorized to do and doing business in this Parish and State.”

On July 25, 1977 the petition was served on Brown and Root, Inc., through its registered agent for service of process, although that company was not a named defendant.

On November 4, 1977 plaintiff filed an amended petition, which named Highlands as a defendant on the basis that it insured Brown and Roots’ executive officers. Highlands filed an exception of prescription, which was overruled. That judgment is now before us for review.

If the suit was filed in the proper venue, the commencement of the action interrupted prescription as to all defendants. R.S. 9:5801. The term “all defendants” means defendants who are named as such in the pleading. Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La.1974).

Highlands was not named as a defendant in the original petition. Moreover, XYZ Insurance Company was a fictitious name, and an amended petition correcting a fictitious name does not relate back to the filing of the original petition. Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., above.

Finally, since there were no real persons named as defendants in the only pleading that was timely filed, there is no solida-ry liability between Highlands and any defendant named in a timely filed petition which would serve to interrupt prescription as to Highlands under C.C. art. 3552. Shotts v. Doe, 347 So.2d 318 (La.App. 4th Cir. 1977).

Accordingly, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered maintaining the exception of prescription and dismissing plaintiff’s suit against Highlands Insurance Company at his cost.

REVERSED AND RENDERED.

      . Highlands also filed an exception to the venue, but the result reached on the exception of prescription dispenses with the necessity of determining the venue issue.


text:
    Elton VON STEGALL, Sr. v. Mary Jo Stegall Quimby WILLIAMS.
    No. 51174.
    Supreme Court of Mississippi.
    May 9, 1979.
    Singley, Minniece, Neville & Hamill, Paul M. Neville, Meridian, for appellant.
    Warner, Ray & Cobb, Walter T. Rogers, George D. Warner, Jr., Meridian, for appel-lee.
    Before ROBERTSON, P. J., WALKER and LEE, JJ.
   Appeal from Chancery Court, Lauderdale County; Howard Pigford, Chancellor.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, BOWLING and COFER, JJ.


text:
    Alvin O. CHAMBLISS v. The BANK OF NEW ORLEANS AND TRUST COMPANY.
    No. 51172.
    Supreme Court of Mississippi.
    May 16, 1979.
    Leonard McClellan, Oxford, for appellant.
    Alvin 0. Chambliss, Jr., pro se.
    Freeland & Gafford, T. H. Freeland, III, Oxford, for appellee.
    Before ROBERTSON, P. J., and LEE and COFER, JJ.
   Appeal from Circuit Court, Lafayette County; W. W. Brown, Judge.

AFFIRMED.


text:
    Billy Ray SIMMONS v. Ollie Jewell Porter SIMMONS.
    No. 51116.
    Supreme Court of Mississippi.
    May 16, 1979.
    Lawrence D. Arrington, Hattiesburg, for appellant.
    No brief filed on behalf of appellee.
    Before PATTERSON, C. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Pearl River County; John M. Dunnam, Chancellor.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: BOWLING, Justice,

text:
    U. S. INDUSTRIES, INC., d/b/a Bell-Wood and Joe D. Edwards v. McCLURE FURNITURE COMPANY OF EUPORA.
    No. 51220.
    Supreme Court of Mississippi.
    May 23, 1979.

      Thornton, Guyton, Dorrill & Pettit, George L. Dorrill, Kosciusko, for appellant.
    Hal H. H. McClanahan, III, Columbus, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellee, McClure Furniture Company of Eupora, secured a jury verdict and judgment in the Circuit Court of Choctaw County against appellant, U. S. Industries, Inc., d/b/a Bell-Wood, in the amount of $2,063.00 as actual damages and $1,000 as punitive damages. Appellant, in appealing from the judgment, alleges two assignments of error, namely:

1. The verdict of the jury is against the overwhelming weight of the evidence, and was not supported by the law nor the facts, and is so contrary as to evidence passion, bias and prejudice on the part of the jury.

2. The verdict of the jury awarding punitive damages is not supported by law or by the facts in this case.

The facts submitted to the jury by the evidence are practically undisputed. During the early part of the evening, at a time when it was dusk dark, appellee’s 1976 Ford pickup truck was being driven by its employee Sones in a northerly direction on Highway 15 approximately two miles south of Ackerman, Mississippi. At that point it collided with a truck owned by appellant and operated by its employee. At the location where the collision occurred, appellant had a plant which was on the east side of the highway. There was a loading dock area in front of this plant which was near the highway. Prior to the collision appellant’s employee Edwards was moving a tractor-trailer rig from another location with the intention of backing it into the loading dock area. In order to do this, he drove the truck into Highway 15 at some point north of the loading dock area. He then drove the truck in a southerly direction on the highway, and after reaching the loading dock he pulled the truck from the highway to the right or the west side. He then proceeded to back the truck in an easterly direction across the highway to the loading dock. As he was backing the truck across the highway, the vehicle owned by appellee and driven by its employee “topped” a hill south of appellant’s plant and while in its lane of travel struck the left side of appellant’s truck near the front thereof. The testimony of appellee’s employee was that he was operating the truck at approximately fifty miles per hour on the open highway when he came over the hill and first saw the truck blocking his lane of travel.

Admittedly, no flares or warning devices or efforts of any type were placed or made at the scene of the collision prior to appellant’s truck and trailer being backed across the much-travelled public highway. It was admitted there were several other persons at the scene with appellant’s driver and no attempt was being made to flag or warn traffic on the highway. The authorities are too numerous to cite that under the above set out facts the question of negligence of appellant through its employee was clearly a question for the jury. In fact, a verdict for appellant would have been against the overwhelming weight of the evidence. As to the actual damages, there could be no real argument that the jury’s verdict was not supported by the evidence.

Regarding the question of the jury being authorized to award punitive damages, this Court has set out the guidelines for such authority by the jury in many cases; the rule being that “punitive damages are ordinarily recoverable only in cases where the negligence is so gross as to indicate reckless or wanton disregard of the safety of others.” Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461 (1952). We have to keep in mind that the basic theory is whether or not there was sufficient evidence for the jury to award punitive damages even though the evidence might be conflicting. It is not the court’s prerogative to make the award. It is only for the court to decide whether or not the party requesting a punitive damage instruction has presented sufficient evidence for the jury’s consideration. Yazoo & Mississippi Valley R.R. Co. v. Hardie, 100 Miss. 132, 55 So. 42 (1911); Snowden v. Osborne, 269 So.2d 858 (Miss.1972).

Most cases involving verdicts for punitive damages have been claims for personal injuries. This Court, however, has held that the same principle applies in cases seeking actual damages for loss or damage to personal property. Greyhound Lines, Inc. v. Townsend, 234 Miss. 839, 108 So.2d 208 (1959).

Appellees rely on a case from the United States Court of Appeals for the Fifth Circuit which involved facts almost identical to the facts in the present case. In Anderson v. Eagle Motor Lines, Inc., 423 F.2d 81 (1970), the employee of Eagle Motor Lines was operating a truck and trailer rig near Brookhaven, Mississippi, on a public highway in a westerly direction, when he realized that he was on the wrong road. He pulled his truck into a driveway on the south side of the highway and was backing it across the highway and into a driveway on the north side when Anderson drove his vehicle around a curve and was unable to stop prior to striking the vehicle blocking his path. There, as here, there were no flares or other warning devices placed on the highway prior to blocking it at night. The testimony was stronger than in the present case regarding warnings as, undis-putedly, in Anderson, there were lights on the side of the trailer and the driver was blowing the horn of the truck and attempting to warn Anderson. The Court of Appeals, in affirming the lower court in granting the jury a punitive damage instruction, stated:

The evidence was uncontradicted that Mississippi Highway 550 is a well-traveled road, that the tractor-trailer completely blocked both lanes of traffic and that this occurred prior to sunrise which was at 6:50 on the morning of the accident, and that visibility was at best limited. Prudence would have required Jones to have moved his rig on to the shoulder of the road either to await full daylight or to place the necessary flares, or to have continued in his own lane until he found an appropriate intersection for completing the maneuver. Instead, Jones risked the possibility of collision against the possibility of completing the dangerous turn within the few moments when the road appeared to be clear of traffic. He exercised bad judgment under the circumstances.

It is readily seen that there was more reason for the lower court to grant a punitive damage instruction in the present case than in Anderson. Here no emergency of any kind was shown which authorized appellant’s employee to block the highway in backing the truck to the loading dock. It would have been a simple matter to place flares or other warning devices in position to warn appellee’s driver coming over the hill and it would have been a simple matter for the other persons who admittedly were there with the driver to have placed themselves in a position to warn. We hold that under the evidence in the case, appellee clearly was entitled to an instruction permitting the jury to find punitive damages in addition to the actual damages.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur.


text:
    Larry SAMUELS v. STATE of Mississippi.
    No. 51239.
    Supreme Court of Mississippi.
    May 23, 1979.
    Charles 0. Jones, Jackson, for appellant.

      A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant, Larry Samuels, was convicted in the Circuit Court of Hinds County for the crime of forgery. The lower court sentenced appellant to serve a term of fifteen years with the Mississippi Department of Corrections. Three years were suspended and the remaining twelve ordered to be served concurrently with two prior convictions. We affirm.

Appellant advances two assignments of error, namely:

1. The court erred in permitting defendant’s witness, Douglas Earl Lucas, to be cross-examined concerning an oral confession and in permitting subsequent testimony of a police officer in regard thereto. The court also erred in permitting Lucas to be asked about prior felony convictions.

2. The court erred in failing to instruct the jury regarding the burden of proof necessary to convict appellant.

Appellant was indicted for the crime of forgery, the indictment charging that he,

did wilfully, unlawfully, feloniously, fraudulently and falsely then and there utter and publish as true to one First National Bank, a banking corporation, a certain forged and counterfeit writing on paper an instrument in writing commonly known as and called and purporting to be a certain written and printed bank check and order for the payment of money, of the tenor, purport, effect and in words and figures as follows:
[Check attached to indictment]
He, the said Larry Samuels then and there well knowing the same to be false, forged and counterfeit, with the wilful and felonious intent, then and there, felo-niously, wilfully, unlawfully and fraudulently to injure and defraud the said First National Bank, Dewy L. Smith, and some other person or persons to the Grand Jurors unknown.

The case presented by the state primarily consisted of evidence from two bank tellers, persons who had lost certain checks, and three police officers. The testimony of the officers was that they were assigned to conduct surveillance on a yellow 1973 Chevrolet Impala automobile supposedly owned by Douglas Earl Lucas. On the morning of December 19, 1977, two of the officers observed Lucas as he picked up appellant at his home in the car in question. Before leaving the scene, appellant and Lucas were observed removing the license plate from the rear of the car and placing it in the car’s trunk. These two officers then followed the automobile, with Lucas driving and appellant riding on the passenger side of the front seat, to the Jackson Mall branch of the First National Bank. The officers stated they saw appellant and his companion cash a check. Subsequently, the car was then followed by the officers to the Five-Points branch of the Deposit Guaranty National Bank, where another check was cashed. While these two officers were continuing surveillance of the car, the third officer, upon communication by radio, secured the two checks. Finally, the officers then followed the car to appellant’s home, where the two occupants secured the license plate and replaced it on the car. At this point, appellant and Lucas were then arrested.

At the police station it was found that appellant had money in the sum of $1,090 on his person and $340 was found on the person of Lucas. Also found under the front seat of the car was what was apparently a stolen or lost driver’s license which was admittedly used for identification in cashing the checks.

Testifying on behalf of the state were the two parties whose names were forged on the two checks in question and their wives. They all testified that they lost blank checks on December 18, 1977; the two checks in question secured by the officers on December 19 were dated December 16.

Appellant’s principal witness was Douglas Earl Lucas, who testified that he picked appellant up in the car at the Jaycee Park near where appellant lives, and that they then drove to an automobile repair shop and obtained an inspection sticker. Lucas then related that they went to the branch bank office at the Jackson Mall and that he, Lucas, cashed the forged check. He testified he had won the check in a “crap game” but could not identify the person from whom it was won. Also, he testified that this person gave him the necessary identification to cash the check, that is, the driver’s license previously mentioned. The gist of Lucas’ testimony was that all the check forging was done by him and appellant had nothing to do with it. On cross-examination Lucas first admitted prior convictions of armed robbery and two forgeries. He was then cross-examined about a prior statement he had given to a police officer which was vastly inconsistent with his testimony at the trial. Lucas denied making such a statement.

On rebuttal, the state offered the testimony of Officer K. W. Humphries, who testified that he secured a statement from Lucas on December 27, 1977; that Lucas at that time told him that on the morning of December 19 he received a telephone call from appellant to come to his house. According to Humphries, Lucas told him that appellant had the two checks in question already partially completed and that the action in cashing the forged checks was a joint venture.

Regarding appellant’s first assignment of error, this Court has held in many cases that a witness may be asked on cross-examination whether or not he has prior convictions for the purpose of impeaching his testimony. Sims v. State, 313 So.2d 388 (Miss. 1975); Witt v. State, 159 Miss. 478, 132 So. 338 (1931); Pickett v. State, 139 Miss. 529, 104 So. 358 (1925). There is no merit to this contention by appellant.

Appellant further contends that it was reversible error to permit Lucas to be cross-examined about the prior statement given Officer Humphries. Again, this obviously was for the purpose of impeaching the testimony of Lucas and from the foregoing brief statement of the testimony, it is apparent that the prior statement was completely inconsistent with his testimony at the trial and clearly there was no error in permitting impeachment of his trial testimony by the prior statement. Appellant made no request that the jury be instructed to limit its consideration of the prior statement to impeachment purposes.

Under appellant’s second assignment of error, he contends that the state should have asked for and the court granted an instruction pertaining to the burden of proof in cases based on circumstantial evidence. In the first place, appellant did not ask for an instruction of this nature. Furthermore, it is clear from the above statement of the evidence that this evidence was more than circumstantial. In addition to the testimony of the officers as to their actual observations, after the two checks were cashed in the sum of $200 each, less than the total amount of the two checks was found on the person of Lucas and much more was found on the person of appellant. According to rebuttal testimony of the officers, no other money was found in the car.

A study of the instructions requested by both the state and appellant and given by the court clearly shows that the jury was fully and properly instructed in the case and there was ample evidence to find the appellant guilty as charged. Neither of the assignments of error has merit. It therefore follows that the cause should be and it is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur.


author: LEE, Justice,

text:
    Robert L. HUGGINS, v. William C. HUGGINS.
    No. 51173.
    Supreme Court of Mississippi.
    May 23, 1979.
    Liston, Crull & Gibson, Alan D. Lancaster, Winona, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Guy Mitchell, III, Tupelo, for appellee.
    Before ROBERTSON, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Robert L. Huggins filed suit against William C. Huggins, his brother, in the Circuit Court of the Second Judicial District of Carroll County, Mississippi, seeking damages for personal injuries sustained in an automobile accident. The liability of William C. Huggins was admitted and the jury returned a verdict in favor of Robert L. Huggins in the sum of one thousand dollars ($1,000). Plaintiff Huggins filed a motion for new trial on the ground that the jury verdict was inadequate to compensate him for his injuries, which motion was denied.

Robert L. Huggins has appealed to this Court assigning three errors. However, the sole question is whether or not the verdict of the jury is so inadequate as to evince bias, passion or prejudice on the part of the jury.

The evidence reflects that on December 25,1975, at about 11:30 p. m., appellant was riding as a passenger in an automobile driven by appellee, who lost control of the vehicle, ran off the road and struck some trees. Appellant was rendered unconscious by the impact, sustained a broken nose, broken teeth, a bruised chest and shoulder, and head injuries. It was admitted that appellant was not guilty of any negligence which proximately caused or contributed to the accident.

The evidence further reflected that appellant incurred medical bills of four hundred ten dollars ($410.00) and lost eighteen (18) months from work at a wage of one hundred twenty-five dollars ($125.00) per week. One orthopedic specialist testified that appellant reached maximum recovery nine (9) months after sustaining the injuries and that he had an occupational disability of twenty percent (20%). Appellant testified he could not do the heavy work that he could previous to the accident for a period of approximately eighteen (18) months, and that he suffered considerable pain.

This Court has held many times that, for a jury verdict to be set aside as excessive or inadequate, it must be against the great weight of the evidence and result from bias, passion or prejudice on the part of the jury. Walton v. Scott, 365 So.2d 630 (Miss.1978); Brown & Root, Inc. v. Continental Southern Lines, Inc., 228 Miss. 15, 87 So.2d 257 (1956).

We are of the opinion that, on the undisputed testimony as to damages (there being no contributory negligence on the part of the appellant), the verdict was not responsive to the evidence and falls within the rule stated above. Consequently, the case is reversed and remanded to the lower court for trial on the issue of damages alone.

REVERSED AND REMANDED ON DAMAGES.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.