text:
    GREEN GIANT COMPANY, Plaintiff-Appellee, v. ADCOCK DISTRIBUTION COMPANY, Defendant-Appellant.
    No. 14988.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.
    Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for defendant-appellant.
    Egan, Cook & Titone by Joseph P. Titone, Shreveport, for plaintiff-appellee.
    Before MARVIN, SEXTON and NORRIS, JJ.
   MARVIN, Judge.

Adcock appeals a judgment on an open account, contending that the trial court should have found the account compromised by plaintiff’s negotiation and endorsement of Adcock’s check which was tendered “in full settlement of the account”. We affirm.

In February 1979 Adcock advised all of its creditors that it was in financial straits and that it proposed to pay monthly, beginning April 1, 1979, a “small percentage” of the outstanding account owed to each creditor and to take other steps to improve its financial position. Adcock paid plaintiff on three occasions through June 1,1979, a total of $550. After these payments were credited, Adcock owed plaintiff $6,645.79.

By letter of October 25, 1979, Adcock advised all of its creditors that it could not pay its indebtednesses and was contemplating bankruptcy. In this correspondence, as an alternative, Adcock offered to pay 15 cents on the dollar if all creditors would accept the offer. Plaintiff rejected Ad-cock’s offer by a telegram on November 8, 1979, and demanded “100 [percent] payment.”

On December 13, 1979, defendant’s attorney wrote this letter to all creditors of Adcock:

“Pursuant to our letter of October 25, 1979, we are enclosing herewith our client’s draft in full settlement of the account,”

and mailed it to plaintiff with a check “Within ten days of receipt PAY TO THE ORDER OF” plaintiff in the amount of $996.87. The reverse of the check bore this typewritten notation:

“Endorsement constitutes full and final settlement of all accounts due through this date.”

This correspondence was mailed to plaintiff at a Dallas post office box. Under plaintiff’s agreement with a Dallas bank, the bank would open this box and would endorse the checks received “Credit to the Account of the Within Named Payee, FIRST NATIONAL BANK IN DALLAS”. This agreement also stated that

“8. Any check bearing the typed or handwritten notation ‘payment in full’ should not be processed, but forwarded to our Credit Department. Any check bearing a similar printed legend may be processed in the usual manner.”

When the bank received Adcock’s letter and check for $996.87, on January 3, 1980, the bank, contrary to its agreement with plaintiff, stamped the reverse of the check with its endorsement stamp and credited plaintiff’s account. Plaintiff did not, however, credit defendant Adcock’s account with the $996.87 and claimed from Adcock $6,645.79 before and after the bank endorsed the check. A letter of February 11, 1981, from plaintiff’s attorney to Adcock reads:

“This firm represents Green Giant Company in the above captioned collection matter. Enclosed is a copy of invoices in support of the amount shown above and unless full payment is made within ten (10) days, suit will be filed for the principal amount due as directed by law, and if the full amount is not paid within thirty (30) days from receipt of this letter, judgment will be rendered against you for the principal amount due and costs in addition to reasonable attorney’s fees as provided by an attached copy of LSA-R.S. 9:2781 entitled ‘Open Accounts; Attorney’s Fees’.
“Also attached is a copy of a check in the amount of $996.87 made payable to Ad-cock Distributing Company c/o Gamm, Greenburg & Kaplan which represents refusal of that amount which was supposedly payment in full of the account. Please advise immediately.”

The factual stipulation does not show the date that plaintiff’s attorney “returned” the $996.87 check to Adcock and its attorneys which is mentioned in the above letter. Plaintiff filed suit on February 25, 1981.

While it is true that the negotiation of a check tendered “in full settlement” of items disputed between a creditor and his debtor will be held to constitute an acceptance by the creditor of the debtor’s offer, the negotiation under the circumstances of this case, clearly shown to have been made in error, should not be held to constitute an acceptance of the debtor’s offer. Compare Charles X. Miller v. Oak Builders, Inc., 306 So.2d 449 (La.App. 4th Cir. 1975), and Wyatt v. Maryland Casualty Company, 160 So.2d 383 (La.App. 2d Cir. 1964).

By its definition, a compromise is an agreement between two persons, who, for the purpose of preventing or ending a lawsuit, adjust their differences in writing by mutual consent in the manner which they agreed on. C.C. 3071.

Consent is the communicated concurrence of intention resulting from a free and deliberate exercise of one’s will. C.C. 1818, 1819. There is no legal consent where the communication is produced by error. C.C. 1779, 1819. See also C.C. 1829-1832, 1841, 53 Tul.L.R. 335. Here the plaintiff had rejected Adcock’s recent offer to settle in full for 15 cents on the dollar and it was only through inadvertence that plaintiff’s agent bank negotiated Adcock’s check without the authority of plaintiff and contrary to plaintiff’s written instructions. It is also shown that plaintiff, after and before Ad-cock’s check was inadvertently negotiated, claimed $6,645.79 from Adcock, and that plaintiff sent its check to Adcock’s attorneys for the $996.87 before filing suit.

Under these circumstances, there was no mutual consent to the contended compromise. C.C. 3071.

At appellant’s cost, judgment is AFFIRMED.

      . The June 1, 1979, letter to all “creditors of Adcock” read:
      “We are enclosing . .. monthly distribution as [we] previously advised that we would do

      “Your forebearance and assistance is greatly appreciated.”
      Adcock’s check was for “partial payment”. Adcock’s letter of July 17, 1979, read in part:
      “[Tjhere will not be a distribution of funds made to creditors this month as previously promised .. .
      “It is anticipated by the middle of August another distribution to creditors can be made ... Your continued cooperation and fore-bearance is greatly appreciated.”

      . This amount is 15 percent of the $6,645.79 Adcock account.


source: Caselaw Access Project

author: FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    Stella Louise ABRAHAM, nee Guiden, Plaintiff-Appellant, v. HANOVER INSURANCE COMPANY et al., Defendants-Appellants.
    No. 14989.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.

      Donald R. Miller, P.C., Shreveport, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendants-appellants.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

Defendants appeal a judgment rendered against them in favor of a plaintiff who was injured when she tripped over a wire in the parking lot of a convenience store. It was asserted that the trial judge erred in (1) fixing the degree of plaintiff’s contributory negligence at 10% rather than a minimum of 40%; (2) awarding plaintiff an excessive sum for general damages; and (3) making an award for lost wages.

Plaintiff answered defendants’ appeal and also appealed, contending that the trial judge committed error in (1) failing to find plaintiff free of fault; (2) making an inadequate award for general damages; (3) failing to make an award for diminution of earning capacity; (4) failing to assess defendant insurance company with payment of penalties and attorney fees for its arbitrary refusal to pay undisputed medical expenses due under an insurance contract; and (5) failing to include Dr. Burt’s bill for $110 in the award for medical expenses. Factual Context

On October 31, 1980, at about 9:30 o’clock P.M., plaintiff, a 33 year old female, accompanied by her 10 year old daughter, drove a> friend’s pickup truck to the Sack and Pack convenience store on Line Avenue in Shreveport, some four blocks from plaintiff’s residence, and. parked in the store parking lot. Leaving her daughter in the vehicle, plaintiff entered the store and purchased three large bottles of soft drinks. She then left the store, carrying the soft drink bottles in a paper sack in her arms, with a large purse hanging by its strap from her left shoulder. As she walked toward the truck, plaintiff tripped over a section of wire running between metal posts about 18 inches above the parking lot surface, which the store operator had installed to mark off a personal parking place. Plaintiff fell face forward onto the surface of the parking lot, sustaining the physical injuries for which she seeks compensation. She returned home and then, because of her pain and discomfort, went to the emergency room of a local hospital.

This suit was brought against Sam Digi-lormo and S-Dig, • Inc. (referred to hereinafter jointly as “Digilormo”), as alleged operators of the convenience store, and their liability insurer, The Hanover Insurance Company.

Plaintiff’s Comparative Negligence

At the trial it was stipulated that “the condition that existed on the premises the day this accident took place . . . did constitute a premises hazard.” Consequently, defendants directed their efforts to the reduction of plaintiff’s recovery by proof of her comparative negligence.

Plaintiff testified that she had visited the convenience store in question some five or six times prior to the day of the accident— the last time just a day or so before the mishap. She conceded prior knowledge of the existence and location of the wire over which she tripped. Her explanation for the accident was that, with the sack of bottles in her arms and preoccupied with returning to her young daughter left in the truck at night in a high crime area, she forgot about the existence of the wire and, failing to look down, inadvertently tripped over it.

In an excellent, comprehensive written opinion, the trial judge noted:

“The facts show, however, that the barbed wire fence did not have any distinctive color, flag or other markers. Further, the barbed wire was strung eighteen (18) inches from the ground around a parking space immediately in front of the entrance/exit to the store where it was reasonably foreseeable that patrons would be carrying packages, distracting their view and their attention from the path immediately in front of them.
“.. . [t]he overwhelming weight of fault for the occurrence of the accident in the instant case is the lack of adequate lighting in the parking lot, the extremely hazardous location of the poles and barbed wire, and the total lack of barriers, flags or other markers alerting patrons to the extreme hazard. Since the plaintiff had visited this store on five or six prior occasions, she must be held at fault to a degree because of her prior knowledge of the hazard. However, this knowledge on her part does not require imposition of a high degree of fault, as would be the case if she visited this store daily, was an employee of the store, or if the accident had occurred during daylight hours.”

The trial judge then proceeded to assess the fault of Digilormo at 90% and the negligence of plaintiff at 10%.

On appeal, defendants argue that, given her prior knowledge of the premises hazard and her admitted inattentiveness, plaintiff’s degree of negligence contributing to the accident should have been fixed at a minimum of 40%.

Based upon our review of the record, we cannot say that the trial judge was clearly wrong in his apportionment of fault/negligence for the accident. To the contrary, for the detailed reasons explicated by the trial judge, which we adopt as our own, we conclude that there was a correct disposition of this issue.

General Damage Award

Dr. A. E. Dean, a Shreveport orthopedic surgeon, examined plaintiff in the hospital emergency room on the evening of the accident and found that she had sustained a fracture of the right elbow, together with contusions of the left hand and right knee. Plaintiff was admitted to the hospital the following day. On November 4, 1980, Dr. Dean performed surgery on the right elbow, consisting of an open reduction and placing of a pin in the elbow, with the application of a cast to immobilize the elbow. Plaintiff was discharged from the hospital on November 10, 1980.

Dr. Dean saw plaintiff again on November 12 and November 20, 1980. The arm cast was removed on December 10, 1980, at which time X-rays revealed good signs of early healing. Dr. Dean saw plaintiff subsequently on January 17, 1981, and found that she had a good range of motion in the injured elbow, but noted that the pin could not be removed until sometime later. He concluded, upon this occasion, that plaintiff could return to work provided she did not attempt to rest her right elbow on a hard surface or engage in activity which might cause her to bump the elbow. He assigned to plaintiff a 5% residual disability pertaining to her right arm.

During the ensuing months in 1981 Dr. Dean saw plaintiff on February 4, March 18, May 5 and June 15, at which time she was discharged from his care. On June 23 the pin was removed from her elbow in outpatient surgery. On each visit to the doctor, plaintiff complained of intense pain in her injured elbow. However, Dr. Dean could discover no objective basis for that degree of discomfort.

Considering the nature of plaintiffs injuries and the length of time she experienced pain and discomfort, we do not find that the trial judge’s general damage award to plaintiff of $8,000 was an abuse of his wide discretion.

Award for Lost Wages

Plaintiff was employed on October 21, 1980 by Kansas City Southern Railway Company (“KCS”) as a trainee. Her first day of compensated service for this employer was on October 28, 1980. Hired as a yard clerk, she was paid $58.30 per day.

At the trial there was testimony from two KCS supervisory employees that a decision was made on October 30,1980 to terminate plaintiff’s employment because of her unacceptable performance on the job. However, because of her accident and subsequent hospitalization, this information was not communicated to plaintiff until November 3, 1980. Considering this evidence, the trial judge made the following finding of fact:

“... [t]he apparent satisfactory work record of plaintiff, the knowledge on the part of the supervisors of plaintiff’s hospitalization, and the fact of her notification several days later lead this court to infer that it is more probable than not that the decision to terminate the plaintiff was made subsequent to her hospitalization and not prior thereto. This conclusion is also based on the fact that plaintiff suffered an off the. job injury which would create future work problems. Regardless, the fact that the plaintiff was employed at the time of, or immediately prior to, the accident convinces this court that she most probably would have continued this or obtained other employment in the immediate future but for the accident and resulting injuries.”

Concluding that plaintiff was not physically able to return to work until June 15, 1981, the date of her final discharge by Dr. Dean, the trial judge awarded her lost wages from the date of the accident until the date of her release from medical care, computed on the basis of her daily compensation by KCS.

Defendants argue that plaintiff lost no wages because her employment with KCS had been terminated at the time of her accident and, further, that her brief incapacity ended on January 7, 1981, when Dr. Dean released her to return to work.

The record supports the trial judge’s determination that plaintiff proved she probably would have been employed, either by KCS or some other employer, during the period of her disability. See South Central Bell Telephone Co. v. Branch, 360 So.2d 271 (La.App. 4th Cir. 1978). We also agree with the trial judge that, since the January 7, 1981 medical release to return to work was a qualified or conditional release, plaintiff was not able, as a practical matter, to resume employment until her final discharge from medical care by Dr. Dean on June 15, 1981.

Plaintiff complains that she should have received an additional award for diminution of earning capacity. However, there simply was no evidence to support such an award. Dr. Dean explained that the 5% residual disability he assigned to plaintiff was not a functional one. The trial judge correctly denied this claim.

Miscellaneous Issues

Plaintiff contends that the trial judge erred in failing to assess the defendant insurance company with statutory penalties and attorney fees for arbitrarily refusing to pay, upon demand, medical expenses due plaintiff under the insurance policy covering the convenience store premises.

The trial judge noted that the letter sent by plaintiff’s counsel merely advised Digilormo of the writer’s representation of plaintiff and requested contact from defendant’s attorney. The statutory penalties stipulated by La.R.S. 22:657 and 658 apply only when the insurer fails to pay undisputed claims within 60 days of demand. To qualify as a “demand” the communication must fully inform the insurer of the plaintiff’s intention to claim payment under the policy for a specified amount. Hut of La., Inc. v. Zurich Ins. Co., 372 So.2d 687 (La. App. 1st Cir. 1979).

This claim for statutory penalties and attorney fees was properly denied by the trial judge.

Plaintiff further argues that the trial judge committed error in categorizing her medical bill for the visit to Dr. Burt as litigation expense and refusing to include it in her award. We agree with the trial judge. Plaintiff consulted Dr. Burt only once, three weeks before the trial, and received no treatment from him. An examination and report made in preparation for litigation are not items of medical expenses for which recovery may be had. Warren v. Yellow Cab Co., 136 So.2d 319 (La.App. 2d Cir. 1961).

Conclusion

For the reasons set forth, we affirm the judgment of the district court. Costs of appeal are assessed equally to plaintiff and defendants.

      . La. Civil Code Art. 2323, amended effective August 1, 1980 to make the law of comparative negligence applicable in this state, provides:
      When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.


author: NORRIS, Judge.

text:
    Aubrey BENNETT, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, et al., Defendants-Appellees.
    No. 14992.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.

      Traylor & Kramer by Michael E. Kramer, Winnsboro, for plaintiff-appellant.
    Hudson, Potts & Bernstein by Jesse D. McDonald, Monroe, for defendant-appellee, General Motors.
    Davenport, Files & Kelly by Thomas W. Davenport, Jr., Monroe, for defendant-ap-pellee, T.L. Purvis.
    Before PRICE, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Plaintiff appeals the sustaining of an exception of prescription in favor of T.L. Pur-vis, d/b/a Purvis Pontiac and GMC, in this suit for damages sustained as a result of a vehicular collision caused by the failure of plaintiff’s brakes. We affirm.

FACTS

The accident out of which this litigation arises occurred on April 19, 1978. Plaintiff was driving his 1973 GMC pick up truck in an easterly direction on Interstate 20 in Ouachita Parish, Louisiana, when his braking system failed causing him to collide with the rear of another vehicle and to sustain certain bodily injuries. It is clear that the failure of the brake system was the cause of the collision. Furthermore, it is undisputed that the cause of the brake failure was the separation of the vacuum booster.

On April 26, 1973, the pick up truck in question was shipped from the General Motors plant to Purvis Motor Company in Fer-riday, Louisiana, and thereafter, sold to Glen Roark of Enterprise, Louisiana.

In November, 1973, General Motors received reports from the field that some of the vacuum boosters on certain of their trucks were coming apart in service. Further investigation revealed that one of the machines used to manufacture the housing for Delco Moraine Single Diaphragm Vacuum Brakes was improperly adjusted and some of the tolerances were allowed to get out of control at the plant. Because of this variation in tolerance, the boosters manufactured by the maladjusted machine were not locked together as tightly as they should have been resulting in some of the boosters coming apart after use in the field. In response to this problem, General Motors instituted a recall campaign in February, 1974, to correct this defect. The purpose of correcting this particular defect was to prevent exactly what happened in plaintiff’s case — to keep the housing from separating and causing complete loss of service brakes.

In connection with its recall campaign, General Motors mailed GM Truck Dealer Product Campaign Bulletin No. 74C06 to all of its dealers, including Purvis, describing the nature of the problem. Additionally, national publicity was initiated, and recall letters were mailed to all owners of vehicles already sold advising them of the recall campaign as well as instructing them to bring their vehicles to the dealer for the necessary repair work. This pamphlet described in detail the remedial steps to be taken to alleviate the problem and identified the particular defective booster. The tools recommended for use in performing the corrective work and the procedure to be used to “stake” or “crimp” the booster housing to eliminate the rotation and subsequent separation of the booster were detailed for all involved dealers.

On March 12, 1974, Roark brought his truck to Purvis Motor Company in Ferriday for completion of any necessary alterations in accordance with the instructions received from General Motors. The invoice forwarded to General Motors from Purvis indicates that the “staking” procedure was not completed due to an erroneous determination by someone at the dealership that the booster on this truck was not subject to the recall campaign.

Thereafter, on an undetermined date in 1977, plaintiff purchased this truck from Mcllwain Motors in Winnsboro. He had no problems with its braking system until this accident occurred.

Immediately prior to the accident, the subject of this litigation, plaintiff became aware that his brakes had failed and told his passenger to brace himself because the “brakes were gone.” Shortly after the accident, plaintiff, the investigating officer, and his passenger observed the separated booster housing under the raised hood of the truck. Both the policeman and the passenger informed plaintiff at that time that the component parts observed were part of his brake system. Thereafter, plaintiff had his vehicle towed to Ryan Chevrolet in Monroe. Less than five days after the accident he was informed again that the separated booster housing had caused the brake failure. Within that time frame, he was also informed that this particular truck had been subject to an earlier recall campaign for its possibly defective brake system.

Plaintiff then removed the brake housing from the vehicle and transported it to his attorney on or about May 1, 1978. He also informed his attorney at that time that his brakes had failed, that the booster might be a recall item, and that the brakes had not been repaired. Furthermore, he gave his attorney the name of Ed Rayburn, a service representative from General Motors, whom he had contacted previously and who on April 21, 1978, had inspected the vehicle at Ryan resulting in the filing of a preliminary investigative report with General Motors along with certain photographs which Rayburn had taken of the vehicle.

Plaintiffs attorney then wrote to J.D. Ingle at the General Motors Training Center in Memphis, Tennessee on October 5, 1978, informing him that the cause of plaintiff’s accident had been the brake failure on his truck and that this particular truck had been on a recall list because of a problem with the brake booster. It was further noted in the letter that no repairs were ever performed on this particular housing. Following General Motors’ response that it was forwarding the letter to its insurance carrier, plaintiff’s attorney again wrote to Mr. Ingle on January 8, 1979, who again responded that the letter had been forwarded to the insurance carrier. No further correspondence or contacts are revealed by the record.

On April 11, 1979, some eight days short of the anniversary date of the accident, suit was filed against General Motors only. On April 1,1980, an amended and supplemental petition was filed by plaintiff adding T.L. Purvis, d/b/a Purvis Pontiac and GMC as a party defendant.

On October 23, 1980, interrogatories were propounded by plaintiff to General Motors seeking information about the 1974 recall campaign and the defect in the braking system. This was the only discovery instituted on behalf of plaintiff, and these interrogatories were not filed until some six months after the filing of the first amended and supplemental petition adding Purvis as a party defendant. In both the original and first amended and supplemental petitions, plaintiff refers to the 1974 recall campaign and alleges as negligence the failure to correct the defect in the braking system.

This case was tried before a jury in November, 1981, which after trial found that the accident was solely caused by Purvis’ negligence in repairing the defect in plaintiff’s vehicle. Although defendant Purvis had filed an exception of prescription prior to trial, it was referred to the merits, and the trial court did not rule upon it until the jury returned its verdict exonerating General Motors but finding Purvis negligent. Thereafter, the trial court sustained the exception of prescription as to Purvis and American Hardware Mutual Insurance Company, his insurer.

It is solely from the ruling sustaining the exception of prescription that plaintiff appeals contending that the trial judge was in error. Plaintiff does not appeal and we do not consider the propriety of the jury’s finding exonerating General Motors. That portion of the judgment is now final.

Plaintiff argues that he did not have actual knowledge of Purvis’ involvement in this matter until September 5, 1979; therefore prescription against Purvis did not begin to run until that date. It is further contended that he had no evidence to indicate that Purvis had performed recall work on the defective brake booster until that date because all of the information concerning the recall work was in the possession of General Motors Corporation. He further contends that the brake booster showed no signs that any effort was made to repair the defect and that he was only able to learn of Purvis’ involvement with this vehicle by filing suit against General Motors.

Conversely, Purvis contends that plaintiff was aware of the failure of the brake system prior to the collision and in fact warned his passenger to brace himself for the impending impact. He observed the separation of the brake cylinder at the scene of the accident and again within five days of the accident at Ryan Chevrolet. He was advised by either an employee of Ryan or by his insurance company representative that this particular brake booster cylinder and housing had been the subject of a General Motors Corporation recall to correct a manufacturing defect. All of the records on this vehicle were on file with General Motors. Therefore, Puivis contends that the actual knowledge of plaintiff of the failure, the manufacturing defect in the brake system, and the recall campaign constituted “constructive notice” to start the running of the one-year prescriptive period sometime more than one year before April 1, 1980, the date of the filing of the first amended and supplemental petition.

If the date of the alleged wrongful act appears on the face of the pleading to have occurred more than one year before suit is filed, a plaintiff’s cause of action has prescribed unless he cannot ascertain the tortious act by diligent inquiry or information is withheld from the plaintiff by the defendant. The burden of proving suspension of prescription due to lack of knowledge rests with the plaintiff. Knowledge of a fact is presumed where the plaintiff has sufficient information to incite curiosity as to the cause of the defect. Bayonne v. Hartford Ins., 353 So.2d 1051 (La.App. 2d Cir. 1977).

Because plaintiff’s cause of action against Purvis had clearly prescribed on the face of the amended and supplemental petition, these principles are applicable, and the burden of proof was on plaintiff to prove a sufficient interruption or suspension of the prescriptive period.

The sole thrust of plaintiff’s argument is that he was unable to determine Purvis’ involvement in the suit earlier than he did. This argument is untenable. It is obvious from our review of the record that General Motors chose to remain silent and provided no information to plaintiff. However, the record amply supports a conclusion that plaintiff and his attorney were cognizant of the fact shortly after the date of the accident that this particular brake booster may have been subject to a recall campaign and that the braking system had not been corrected pursuant to that campaign. This is revealed in the testimony of the plaintiff, his attorney, and letters which plaintiff’s attorney wrote to General Motors. We further conclude that General Motors’ silence did not excuse plaintiff’s failure to ascertain what party might be responsible, in addition to, or in lieu of General Motors, prior to the running of prescription.

Because silence is a recognized reaction by a defendant in a lawsuit, we have discovery statutes. See La.C.C.P. Art. 1421 et seq. Discovery devices are tools whereby each litigant is given the opportunity to search for and obtain information. Welch v. Robert Campbell, Inc., 316 So.2d 822 (La.App. 1st Cir. 1975). The purpose of discovery procedure is to afford all parties fair opportunity to obtain facts pertinent to litigation, to discover true facts and compel disclosure of such facts wherever they may be found. State through Department of Highways v. Spruell, 243 La. 202, 142 So.2d 396 (1962). Not only may discovery be had of any matter not privileged which is relevant to the subject matter involved in the pending action, but it may be had of any matter even if inadmissible at trial which appears reasonably calculated to lead to the discovery of admissible evidence. Royal American Corp. v. Republic Securities Corp., 392 So.2d 98 (La.App. 1st Cir. 1980).

Clearly, upon plaintiff’s failure to obtain information from General Motors he could have filed suit against General Motors and compelled its disclosure. Among other things, he could have obtained a chain of title on his vehicle pursuant to the provisions of La.R.S. 32:727(D) to ascertain the identity of prior owners and/or dealers. These are but two avenues of exploration which were open to plaintiff to determine whether others were involved and should be made party defendants. For example, in this situation, had the recall work not been performed because of the failure of a former owner to return the vehicle to the dealer for the necessary repairs after proper notice then that owner, rather than Pur-vis, may have been liable to plaintiff for his injuries.

However, plaintiff did not avail himself of these procedures and waited until some eight days prior to the anniversary date of the accident to file his initial petition naming General Motors as the sole defendant.

It is clear from the record that all of the information which plaintiff required to determine whether recall work had been done on the vehicle and by whom it had or had not been done was in the possession of General Motors on the date of the accident. This information was certainly available to plaintiff and subject to production and inspection more than one year prior to the filing of the first amended and supplemental petition adding Purvis as a defendant.

There was no privity of contract between plaintiff and Purvis; therefore, any action which plaintiff had against Purvis was one based in tort. La.C.C. Art. 2315; Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285 (1970). Under the express provisions of La.C.C. Art. 3536, included as one of the actions prescribed in one year is “ * * * that for damages caused by * * * or resulting from offenses or quasi offenses,” which prescription is made to run from the date “ * * * on which * * * damages (was) sustained.” La.C.C. Art. 3537.

In Corsey v. State Dept. of Corrections, 375 So.2d 1319 (La.1979), Justice Tate speaking for our Supreme Court sets forth the categories of situations in which our jurisprudence holds the principle of contra non valentem applicable:

As the cited comment notes, 12 Tul.L. Rev. at 253-54, this court in Reynolds v. Batson, 11 La.Ann. 729, 730-31 (1856), authoritatively lays down the three categories of situations in which our early jurisprudence held that the principle contra non valentem applied so as to prevent the running of liberative prescription: (1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; (2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; and (3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action.
Modern jurisprudence also recognizes a fourth type of situation where contra non valentem applies so that prescription does not run: Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. (This principle will not except the plaintiff’s claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned. [Citations omitted.])
This fourth or more modern situation, which has been judicially characterized as a contra non valentem exception to the running of prescription, is generally similar to instances provided by statute where prescription does not begin to run until the claimant has knowledge of his cause of action. In these, the cause of action does not mature (so prescription does not begin to run) until it is known or at least knowable.
The fourth situation is thus generically somewhat distinguishable from the earlier three situations first recognized to justify exceptions to prescription on the basis of contra non valentem. In them (as in the present case, as we will show), the cause of action had accrued, but nevertheless the plaintiff was prevented from enforcing it by some reason external to his own will — the courts closed by wartime conditions, some contract or administrative condition preventing his access to the courts, or some conduct of the defendant which prevented him from availing himself of his judicial remedy.
In concluding our general discussion of the application of contra non valentem, we should finally note that the Louisiana jurisprudence, as does the French, distinguishes between personal disabilities of the plaintiff (which do not prevent prescription from running) and an inability to bring suit for some cause foreign to the person of the plaintiff (which does suspend its running). [Footnotes omitted.]

In Cartwright v. Chrysler Corp., supra, the plaintiff was injured in a rear end collision and instituted suit against the following motorist. The defendant pled the affirmative defense of “sudden brake failure” which was upheld by the trial court which found that the accident was unavoidable because of the brake failure. Four days after the dismissal of the suit against the motorist, a second suit was filed by plaintiff against the manufacturer and service dealer alleging that they were guilty of breach of warranty and negligence in design and installation and service of the brake lines, a fact which plaintiff first became aware of at trial in her initial suit. The second suit was dismissed by the trial court on defendants’ peremptory exception of prescription of one year. In affirming the sustaining of the exception, the Supreme Court after finding that this was an action in tort rather than an action in contract thereby rendering applicable the provisions of La.C.C. Arts. 3536 and 3537 stated:

Since this suit was filed more than a year after the date the damage was sustained, the claim as to the defendants in this case prescribed. Plaintiff’s claim that the prescription began to run only when she became apprised of the real cause of the accident, i.e., the defective brake lines, is clearly without merit. The record clearly shows that although she may have been unaware immediately of what caused the brakes to fail, she was cognizant of the fact that brake failure did cause the accident according to her own testimony in a discovery deposition, wherein she admitted that at the scene of the accident she was told by Dr. Kent and additionally heard him tell the investigating officer that his brakes had failed.
While this court has accepted in certain limited situations the common law doctrine “contra non valentem agere nulla currit praecriptio,” which means that prescription does not run against a person who could not bring his suit, we do not think that plaintiff can find any comfort under the facts of this case in that doctrine. The rule that prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, applies only when such ignorance is not wilful and does not result from negligence, and the doctrine has been limited to cases where the debtor has concealed the fact of the obligation or has committed other acts which tend to hinder, impede or prevent the creditor from ascertaining knowledge of the existence of the debt. See, Ayres v. New York Life Ins. Co., [219 La. 945, 54 So.2d 409], supra. Also, it is not necessary that the party have actual knowledge of the conditions as long as there is “constructive notice.” Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription. [Footnotes omitted.] (Emphasis added.)

The rationale of Cartwright is equally applicable to the instant case. Therefore, we conclude that plaintiff was adequately put on notice that he needed to inquire further into the actual cause of his brake failure on the date of the accident. By his own admissions and actions, it is clear that he was aware of the cause of the accident (i.e., the failure of the brakes) at the time of its occurrence. Therefore, it was at that point that an inquiry was called for to determine the actual cause of the brake failure. Plaintiff’s actual knowledge of the brake failure under the circumstances of this case was sufficient to commence the running of prescription on the date of the accident. It was not necessary that he have actual knowledge of the particular cause of the defect. See Blalock v. American Employers Ins. Co., 345 So.2d 166 (La. App. 2d Cir. 1977).

Stated another way, the real crux of plaintiff’s argument is that he was unable to determine who was involved in the repair or the failure to repair the defect in the brake system until September 5, 1979. In other words, he did not know whom to sue. However, plaintiff’s position is unpersuasive because the law is clear that mere failure on the part of a plaintiff to ascertain whom to sue within a year does not toll the running of prescription. There must be reasonable diligence on the part of the plaintiff to ascertain the identity of the party injuring him, and the means of knowledge are the same in effect as knowledge itself. Patin v. Stockstill, 315 So.2d 868 (La.App. 1st Cir. 1975).

A similar argument was presented to the court in Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916 (La.App. 1st Cir. 1970). In that case, plaintiffs sued alleging that during the latter part of November of 1965, a truck tire suddenly and without warning crashed into a house, a car and a boat belonging to plaintiffs causing extensive damage. The suit was filed on March 26, 1968, some twenty eight months after the occurrence of the damage. Plaintiffs alleged that it was only after due and diligent search on their part that they were able to ascertain the ownership of the tire which caused the damage. Defendants filed an exception of prescription and evidence was taken thereon. The evidence revealed that late one night a tire became disengaged from a truck traveling on the highway, sideswiped a cabin cruiser parked a few feet from a car striking its front, went through a window on one side of a house, exited through a window and came to rest on a side street. The serial number, type and make of the tire were obtained and this information, together with the tire, was presented to plaintiff’s attorney. Extensive efforts were made to ascertain the owner of the tire, and these efforts were fruitless. In October of 1967, plaintiff’s wife observed a truck at a filling station that bore the same type of tire. This led to the discovery that the tire which caused the damage belonged to defendant. The trial judge held that the mere failure of the plaintiffs to ascertain whom to sue within a year did not toll the running of prescription. Counsel for plaintiffs in that case — as in this case — conceded that their entire case was based on a rule of law recognized as the doctrine of “contra non valentem agere non currit premptio” (contra non valentem), a doctrine which is an exception to the general rules of prescription and the doctrine sought to be applied in Cartwright, supra. After extensively reviewing the jurisprudence on the application of this doctrine, the appellate court concluded that because the plaintiffs’ petition contained no allegations or contentions that there was any fraud or concealment on the part of the defendants with reference to the ownership of the tire involved, and that there was no evidence adduced during the hearing on the exception itself that defendant did anything to cause any delay in the filing of the suit or in any manner to hinder the efforts of plaintiffs, that the facts of the case did not bring it within any of the accepted exceptions to the prescriptive provisions of the Civil Code and statutes nor did it warrant the application of the doctrine of contra non valentem.

Similarly, in Arceneaux v. Motor Vehicle Casualty Co., 341 So.2d 1287 (La.App. 3d Cir. 1977), plaintiff was injured in an automobile accident and filed a suit September 30, 1974, against the uninsured motorist carrier of the vehicle in which she was riding and against one “John Doe.” Plaintiff was a passenger in a vehicle that was forced off of the road by a hit and run driver on September 30, 1973. She apparently had not ascertained the name of the hit and run driver and alleged that he was unknown, i.e., “John Doe.” On October 24, 1974, the uninsured motorist carrier filed a third party demand alleging the identity of the hit and run driver and his insurer. On May 22, 1975, plaintiff amended her petition to bring them into the lawsuit. Thereafter, they filed an exception of prescription. The evidence revealed that after the accident, an interested observer followed the vehicle which struck the vehicle in which plaintiff was riding and got its license number and make. He wrote this number down and gave it to a state trooper who put it into his accident report which was available to and obtained by plaintiff’s attorney. The exception of prescription was referred to the merits. Plaintiff contended that the trial court erred in sustaining the exception and further contended that the doctrine of contra non valentem should be invoked to interrupt prescription against the unknown driver and his insurer. The court found that the driver did not attempt to conceal his identity from plaintiff but was merely unaware of the occurrence of the accident. Furthermore, it was concluded that plaintiff was possessed with the means to ascertain the identity of the tortfeasor. Therefore, the doctrine was inapplicable to the case, and the tort action against the driver and his insurer had prescribed.

Likewise, in the instant case, Pur-vis did nothing to conceal his identity from plaintiff. Certainly, as heretofore discussed, plaintiff had ample means to ascertain the identity of Purvis had he but utilized them. Plaintiff had reason to know that others could have been involved and by discovery devices pursuant to an earlier suit against General Motors he could have ascertained knowledge of not only Purvis’ involvement but the name of the former owner of the truck. The circumstances of this case indicate that plaintiff did not use reasonable diligence to ascertain the names of the involved parties; therefore, the doctrine of contra non valentem did not operate to suspend the running of prescription. See Patín v. Stockstill, supra.

Although plaintiff has not raised issues additional to the applicability of the doctrine of contra non va lentem, we have additionally reviewed the record to determine if there are other applicable legal principles under which prescription may have been interrupted as to Purvis. La.C.C.P. Art. 2164.

La.R.S. 9:5801 provides:

All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.

It is well settled that the reference to “all defendants” in the above quoted statute implies defendants who are named as such. Filing of a petition, therefore, interrupts prescription only as to defendants named in the petition relied upon, in the absence of solidary liability between an unnamed defendant and a defendant who is properly named in the timely filed petition. Pearson v. Hartford Accident and Indemnity Co., 281 So.2d 724 (La.1973); Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La.1974); La.C.C. Art. 2097.

Since Purvis was not named in the timely filed original petition, prescription was not interrupted as to him under the provisions of La.R.S. 9:5801 unless he is a solidary obligor with the named defendant, General Motors. The issue of solidary liability between Purvis and General Motors is now settled and final—the fact finder [jury] absolved General Motors from liability, and thus, it cannot be said that General Motors is a solidary debtor with Purvis. Cartwright v. Chrysler Corp., supra; Trahan v. Liberty Mutual Ins. Co., 314 So.2d 350 (La.1975). See also Pearson v. Hartford Accident & Indemnity Co., supra, where the court stated:

... A plea of prescription may be sustained before trial but even when it fails on the preliminary hearing, it may be sustained later in the proceeding if it should be established the plea was founded on good grounds such as those alleged here—failure of solidary liability and, therefore, lack of timely institution of suit against the second defendant.

Another so-called exception which our courts have recognized encompasses those peculiar and exceptional circumstances where the filing of the suit against an erroneously named defendant whose close relationship with the correct defendant is such that notice to the erroneous defendant necessarily implies notice to the correct defendant, and interrupts prescription as to the correct defendant. See Andrepont v. Ochsner, 84 So.2d 63 (La.App.Orl.Cir.1955); Langlinais v. Guillotte, 407 So.2d 1215 (La.1981); Clark v. McDonald Systems, Inc., 383 So.2d 61 (La.App. 2d Cir. 1980), writ refused 386 So.2d 95 (La.1981). In Judge Hall’s well reasoned concurring opinion in Clark, which the Supreme Court recognized as being correct at 386 So.2d 95, he listed the prerequisites for interruption of prescription in these type cases to be:

(1) Justifiable mistake as to the name and/or identity of the defendant;

(2) Allegations that state a cause of action against the unnamed defendant; and

(3) A close connection between the named and unnamed defendants such as to infer notice of the filing of the suit to the unnamed defendant.

Further, Judge Hall noted at 383 So.2d 67:

There was obviously a mistake as to which entity actually operated the McDonald’s restaurant. The mistake was understandable because of the name of the restaurant and because the named defendant actually had a connection with the restaurant. The petition as originally filed alleged a cause of action against the operator of the restaurant. Because of the close connection between the named franchisor and the unnamed franchisee-operator, both insured by the same liability insurer, the suit filed against the franchisor amounted to notice to the franchisee of the filing of suit. The record shows that notice was, in fact, communicated to the correct defendant. . . [Emphasis added.]

The instant case is distinguishable from the line of cases referred to immediately hereinabove. Here, plaintiff intended to sue General Motors and did not do so in error. Plaintiff had sufficient knowledge at the time of the accident as to the cause of the accident to put him on notice of everything to which diligent inquiry would lead. He was charged with knowing what he could have learned by reasonable diligence, i.e., the involvement of defendant, Purvis. Further, there is no evidence in the record to indicate that Purvis did in fact have notice of the filing of the suit within the prescriptive period. To the contrary, the record reveals that service of the suit was not made on General Motors until April 24, 1979, some four days after the running of the prescriptive period. The only inference which can be raised from this is that General Motors did not have actual notice of the filing of this lawsuit during the prescriptive period; therefore, under no circumstances could it have imparted notice of the suit to Purvis within the prescriptive period. Since the essence of interruption of prescription by suit is notice, and the evidence does not show that Purvis had notice of plaintiff’s suit and the occurrence upon which the demand was based during the prescriptive period, the running of prescription as to Purvis was not interrupted. See Baker v. Payne & Keller of La., Inc., 390 So.2d 1272 (La.1980); 43 Tul.L.Rev. 211.

Finding that there has been no interruption or suspension of the prescriptive period, we conclude that the trial judge was correct in sustaining the exception of prescription. Accordingly, the judgment of the trial court is affirmed at plaintiff’s cost.

JUDGMENT AFFIRMED.

      . In his testimony during the hearing on the exception, plaintiff’s attorney admits that all of this information was provided to him by plaintiff around May 1, 1978.

      . The record also reveals a third amended and supplemental petition filed on November 16, 1981, adding American Hardware Insurance Co. as the liability insurer of Purvis.

      . The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. [La. C.C.P. Art. 2164]


author: NORRIS, Judge

text:
    Lucille GREER, et al., Plaintiffs-Appellees, v. OUACHITA COCA-COLA BOTTLING COMPANY, INC., et al., Defendants-Appellants.
    No. 14995.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.

      William R. Coenen, Jr., Rayville, for plaintiff-appellee. ■
    Theus, Grisham, Davis & Leigh by Brian E. Crawford, Monroe, for defendants-appellants.
    Before PRICE, SEXTON and NORRIS, JJ.
   NORRIS, Judge

Defendant, Ouachita Coca-Cola Bottling Company, appeals a judgment awarding plaintiffs general damages, past and future medical expenses, expert witness fees and attorney’s fees, in this action in tort and redhibition for damages sustained as a result of the ingestion of a soft drink from a contaminated bottle. Plaintiffs, Lucille Greer and her husband, Eugene T. Greer, answer the appeal asking that certain additional items be taxed as costs and that the awards for future medical expenses and attorney’s fees be increased. Defendant, James F. Harley, d/b/a Harley’s Service Station does not appeal. We amend and affirm.

On October 20, 1980, while on her lunch break from Buccaneer Sportswear with Debra Coleson, plaintiff, Lucille Greer, purchased a ten ounce bottled Dr. Pepper from a vending machine at Harley’s Service Station in Rayville. Mrs. Greer and Ms. Cole-son then returned to the parking lot of the sportswear plant where they ate lunch sitting in the car listening to the radio.

Noticing nothing unusual about the taste or smell of the beverage, Mrs. Greer consumed the entire drink as well as crackers and peanut butter. Thereafter, her attention was directed to a brown, gummy substance coating the sides and bottom of the bottle. The testimony is conflicting as to who actually initially discovered the foreign substance in the bottle, Mrs. Greer claiming that Ms. Coleson made the initial discovery and Ms. Coleson claiming Mrs. Greer discovered the substance. However, shortly thereafter, Ms. Coleson left the vehicle and returned to work leaving Mrs. Greer who opened the car door and vomited. Mrs. Greer then returned to work after which she felt nauseated during the afternoon and “gagged” on two occasions prior to leaving work at 3:30 p. m.

After leaving work, plaintiff called her family physician, Dr. David Silas, and informed him of the incident. He testified that he told her to take Bentyl, a medicine she had at home. However, plaintiff testified that he prescribed medicine for her which she picked up from the drug store. After taking medication, plaintiff’s condition improved and she returned to work the next morning with no apparent difficulty. However, her testimony and the company’s work records reflect that she later missed one day’s work that week because, according to plaintiff, she was nauseated and weak.

Several days later, Mrs. Greer took the bottle to her attorney whom she consulted to protect, in her words, “her legal rights.” According to Dr. Silas’ records, she made an office visit on October 29, 1980. She testified that around that time or shortly thereafter she developed diarrhea and that Dr. Silas prescribed Lomotil for this condition. However, the pharmacist’s statement filed into evidence does not show a prescription for this particular drug.

Plaintiff again saw Dr. Silas on December 8, 1980 and December 17, 1980 complaining of diarrhea, nausea and vomiting after which he admitted her to the Richland Parish Hospital where she remained December 21, through December 23, 1980, and tests were conducted in an effort to determine the cause of her chief complaint, diarrhea. No bacterial or pathogenic cause for Mrs. Greer’s symptoms was revealed by the testing.

Mrs. Greer further testified that after her release from the hospital, she continued to have periods of nausea, diarrhea and weakness until shortly prior to trial. She further testified that her nerves worsened and attributed this deterioration first to the loss of her job in April, 1981, but then later to the ingestion of the Dr. Pepper. She additionally testified that she was prevented from engaging in previous recreational activities, presented with difficulty in completing housework, and caused to work in discomfort as a result of her problems. To some extent, this was corroborated by the testimony of Ms. Coleson, her close friend Mrs. Beatrice Henry, and Mr. Greer.

The records of Dr. Silas reflect that he saw Mrs. Greer on eight occasions between October 29, 1980 and July, 1981 in addition to her hospitalization. Although the evidence revealed and Dr. Silas admitted that no pathogen or bacteria was ever isolated, he was of the opinion that many of the problems complained of resulted from the ingestion of the contents of the beverage. However, he further admitted that the length of time between the ingestion of the soft drink and the onset of the diarrhea made it likely and possible that during that period Mrs. Greer could have ingested something else that caused the problem.

The attendance records of Buccaneer Sportswear reveal the following absences of Mrs. Greer subsequent to October 20, 1980: October 22, 1980 [doctor’s appointment]; October 31, 1980 [no reason stated, unclear as to amount of time lost]; November 19, 1980 [no reason stated, % hour]; December 4, 1980 [no reason stated, V2 hour]; February 16, 1981; September 20, 1981; March 25, 1981 [6V2 hours]; April 13, 1981.

After trial in written reasons for judgment, the lower court granted judgment in favor of plaintiffs awarding (1) $30,000 to Lucille Greer as general damages, (2) $165 to Lucille Greer as lost wages, (3) $883.40 to Eugene Greer for past medical expenses, (4) $250 as an expert witness fee to Dr. Silas, (5) $1000 to Eugene Greer as future medical expenses, and (6) $5,989 as attorney’s fees, together with legal interest and cost.

On appeal, Ouachita Coca-Cola Bottling Company, Inc., contends that the trial court erred (1) in finding that plaintiff proved that the beverage was contaminated and that it caused the physical problems complained of by plaintiff, Lucille Greer; (2) in awarding to plaintiff an excessive amount of damages and attorney’s fees, thus abusing its great discretion in this regard; and (3) in attaching any significant weight to the testimony of Lucille Greer which is alleged to be knowingly false and perjured.

Notwithstanding the assignments of error, we construe the real thrust of appellant’s argument to be that the trial court clearly abused its discretion in its award of damages and attorney’s fees because it is conceded by appellant that plaintiffs are entitled to a recission of the sale, a return of the purchase price, reasonable attorney’s fees, costs, expert witness fees and general damages.

The record clearly supports the finding that Mrs. Greer purchased and ingested the contents of a bottle of Dr. Pepper which had not been properly cleaned resulting in the leaving of a brown, gummy substance containing dirt and two small slivers of glass with no pathogens in the bottle. We are further satisfied that the evidence preponderates that Mrs. Greer became nauseated and suffered some fairly significant degree of difficulty resulting from her drinking of the Dr. Pepper. See Reeves v. Great Atlantic & Pacific Tea Co., 370 So.2d 202 (La.App.3d Cir. 1979). By virtue of the stipulations of the parties, the record further establishes that the appellant was responsible for the manufacture of the contents, cleaning, filling, and sealing of the bottle in question. Therefore, the trial court was not in error in its finding in that regard.

Furthermore, it is well settled that recovery can be had for psychogenic symptoms even though the substance ingested may be sterile or harmless; thus, Mrs. Greer did not have to prove that the substance consumed contained a pathogen. Glasper v. Wright Root Beer Co., Inc., 216 So.2d 586 (La.App. 1st Cir. 1968). Thus, the trial court did not err in finding that the beverage purchased and consumed by plaintiff contained a foreign substance, i.e., dirt and glass slivers, and that it caused physical problems for Mrs. Greer.

The remaining assignments of error are necessarily related because it is the questionable quality of the evidence regarding the extent and causation of plaintiff’s complained of injuries that appellant vigorously disputes.

A careful reading and analysis of the record reveals obvious inconsistencies and contradictions contained within Mrs. Greer’s testimony in several respects. Initially, it is noteworthy that Mrs. Greer clearly testified in her earlier deposition and at trial that she suffered no previous problems with her stomach prior to October 20, 1980, and that she was in excellent health prior to that time. However, cross-examination and other evidence adduced at trial revealed that she had indeed experienced problems with her digestive system previously. Prior to 1975, Dr. Silas had treated her for gastroenteritis; then in 1975, she had undergone surgery for the removal of her gall bladder. In 1978, Dr. Silas noted that she was feeling bad on a daily basis with signs and symptoms of an ulcer including abdominal pains. In February and April of 1979, these symptoms recurred for several months. Dr. Silas further noted that she has suffered from a nervous condition intermittently since 1974, and Mrs. Greer admitted having problems with her nerves since the age of twenty-nine. Not only was this confirmed by her husband, but he also testified that she had been scheduled for bladder surgery in May, 1980, which had to be postponed because of high blood pressure. The evidence further showed that prior to this incident Mrs. Greer suffered from headaches.

Thus, the evidence viewed in the light most favorable to the plaintiff clearly shows that prior to the ingestion of the Dr. Pepper, Mrs. Greer suffered from gastroenteritis, including nausea, cramping of the stomach, and constipation, gall bladder and bladder problems, ulcer-like symptoms, hypertension, nervousness, headaches — many of the same symptoms which she attributed to the ingestion of the Dr. Pepper.

Furthermore, Mrs. Greer testified that she had not missed even an hour’s work at Buccaneer prior to this incident because of illness. However, the company records revealed, and she did not deny that she missed September 8, 9, and 10, 1980 and October 15,1980 [only five days prior to the incident] because of illness. It is noteworthy that between the time of the incident and her termination she missed at most only four full days of work and portions of at least four other days. Contained within the evidence offered to support Mrs. Greer’s testimony as to the number of days which she had missed work because of illness which she attributed to the Dr. Pepper was the week during a portion of which she was hospitalized. She testified that she could have worked at least three days of that week and sought lost wages for those particular days. However, Mrs. Maggie Morris, personnel supervisor for Buccaneer, testified that the plant was in fact closed the week of December 20, 1980, resulting in no work being available for Mrs. Greer.

Additionally, we note that although Dr. Silas testified that he usually prescribed Lomotil for diarrhea, the pharmacist’s statement of drugs purchased by Mrs. Greer between October 27, 1980 and August 15, 1981, shows no such drug. There is no corroborating evidence in the record of the purchase of any drugs by plaintiff after the latter date.

Finally, Dr. Silas did not treat Mrs. Greer after July, 1981, because he moved to Tennessee. Although Mrs. Greer testified that she was treated subsequently by Dr. Mas-singale for similar symptoms, we note that he did not testify nor were bills submitted into evidence for such treatment. It is significant that in her deposition taken on June 8,1981, Mrs. Greer stated that she felt she was improving to such an extent that she could resume her normal activities and had experienced no difficulties for three weeks.

In Coco v. Winston, 341 So.2d 332 (La.1976), the court stated:

. . . [Bjefore a Court of Appeal can disturb an award made by a trial court . .. the record must clearly reveal that the trier of fact abused its discretion in making its award. [Citations omitted.] Only after.making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. [Citations omitted.]

Since the finder of fact does have much discretion in fixing damages, the appropriate procedure for testing whether the trial judge abused his discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trial court. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977).

In Reck v. Stevens, 373 So.2d 498 (La.1979), the court further amplified their earlier holding:

Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
sfc * * * * Üs
Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s “much discretion,” La.Civ. C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, [citations omitted], or insufficient, [citation omitted]. Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) “similar” injuries, see Coco at 341 So.2d 334.

Applying the foregoing rationale after our careful review of the record, we conclude that the trier of fact clearly abused its discretion in making its award. The award is unreasonable and excessive since the evidence, as articulated herein-above in a light most favorable to Mrs. Greer, does not realistically support a finding of any permanent injury, disability or extreme pain and suffering. Besides which, the record does not realistically support a finding that all of plaintiff’s complaints resulted from the ingestion of the contents of the Dr. Pepper bottle nor does it support a finding that any future medical expenses are realistically warranted.

Further bearing in mind that we cannot simply substitute our judgment as to what we consider to be an appropriate award on the basis of the evidence but can only lower the excessive award to the highest point which is reasonably within the discretion afforded the trier of fact, we have reviewed and analyzed prior awards in similar cases. Accordingly, we reduce the award for general damages to $5250 and deny any award for future medical expenses.

Although conceding that plaintiffs’ are entitled to reasonable attorney’s fees, we note that what constitutes “reasonable” attorney’s fees allowed is also within the discretion of the trial court. Factors deemed worthy of consideration include the amount involved, the skill of the attorney, and the amount of work necessarily undertaken by the attorney. See Ray v. Superior Iron Works and Supply, Co., Inc., 284 So.2d 140 (La.App.3d Cir. 1973).

In support of the award, plaintiffs’ attorneys testified as to the extent of their services and their expertise filing into evidence an exhibit which details 76.6 hours spent on this case and telephone expenses incurred in the amount of $44. Both attorneys for the plaintiffs testified that they charge $75 for this type of litigation and another local attorney testified he did not consider that hourly rate to be unreasonable.

Our review of the pleadings, trial transcript, and brief filed on behalf of plaintiffs leads us to agree with the trial court that plaintiffs’ attorneys are indeed skilled in their profession. However, this particular case involved no extensive pre-trial discovery, was not one of an extremely complicated or difficult nature and required no more than one day of trial time. A large percentage of the hours expended by counsel were for letter writing, telephone conversations, and reviewing letters and medical reports. We conclude that $3000 is the maximum total award which would constitute reasonable attorney’s fees in this case and reduce the sum previously awarded to that amount. We deny additional attorney’s fees for this appeal because defendant did not necessitate the appeal as to damages and attorney’s fees. Wheat v. Boutte Auto Sales, 355 So.2d 611 (La.App. 4th Cir. 1978); Reeves v. Great Atlantic & Pacific Tea Co., supra.

Finally, in answer to this appeal plaintiffs assert that the trial court erred in failing to tax as court costs the fee of Monroe Diagnostic Laboratories, Inc., in the amount of $235, which includes the fee of Enviro-Med Laboratories, Inc. and the expert witness fee of Dr. John T. Goorley, who testified by deposition. The lab fee was incurred as a result of the analysis of the contents of the Dr. Pepper bottle and the information obtained therefrom was introduced at trial as a joint exhibit. Furthermore, Dr. Goorley’s deposition was also introduced at trial as a joint exhibit. These items should have been allowed as costs. Therefore, the judgment will be amended to allow taxed as costs the fee of Monroe Diagnostic Laboratories, Inc., in the amount of $235 and a fee of $75 which we consider to be a reasonable fee for the deposition of Dr. Goorley. See Bush v. Williams, 74 So.2d 335 (La.App. 1st Cir. 1954); La.R.S. 13:4533. The trial court did not abuse its discretion in fixing the expert witness fee of Dr. Silas at $250; however, this amount should have been taxed as an item of cost. La.R.S. 13:4533.

Accordingly and for the foregoing reasons the judgment appealed from is amended and the following, pertinent paragraphs are recast to read:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of Lucille Greer and against Ouachita Coca-Cola Bottling Company, Inc., in the amount of $5250 for past, present and future pain and suffering and emotional distress, and in the amount of $165 as loss of wages which said sums shall bear legal interest from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of Eugene T. Greer and against Ouachita Coca-Cola Bottling Company, Inc., in the amount of $883.40 for past medical expenses, together with legal interest from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of the petitioners and against defendant, Ouachita Coca-Cola Bottling Company, Inc., in the amount of $3000 as the attorney’s fees for William R. Coenen, Jr., attorney for petitioners, together with legal interest from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant, Ouachita Coca-Cola Bottling Company, Inc., pay costs of court which shall include the fee of Monroe Diagnostic Laboratories, Inc., in the amount of $235, and the expert witness fees of Dr. David J. Silas, in the amount of $250 and Dr. John T. Goorley in the amount of $75.

As amended, the judgment is affirmed with the costs of this appeal to be divided equally between plaintiffs and appellant.

AMENDED, and as amended, AFFIRMED.

      . The drug store statement filed into evidence as an exhibit tends to corroborate Dr. Silas’ version since it shows a prescription for Bentyl was not filled until October 27, 1980.

      . Appellant contends that the award for general damages should be no more than $250.

      . Dr. Silas had prescribed phenobarbital for Mrs. Greer for hypertension in the past and also prescribed valium for her nervous condition in 1977.

      . Similar type cases reviewed were Horowitz v. Schwegmann Bros., etc., 376 So.2d 603 (La. App. 4th Cir. 1979), where awards from eating worm infested candy ranged from $200 to $350; Tate v. Winn-Dixie of La., Inc., 339 So.2d 1329 (La.App. 1st Cir. 1976), where award to plaintiff who ate corn from a can that contained a worm and visited the doctor twice and missed school for one week was $350; Sticker v. General Foods Corp., 324 So.2d 568 (La.App. 1st Cir. 1975) writ refused 326 So.2d 380 (La.1976), where plaintiff who drank coffee that had glass in can and suffered mild diarrhea for two or three days, then developed severe stomach cramps, worsening of diarrhea and rectal bleeding, which required visit to doctor and emergency room and prescription medicine and did not miss work but who worked in discomfort received $1500 (original award was $5000 and was reduced by Court of Appeal); Lawson v. Coca-Cola Bottling Co. of Lake Charles, 287 So.2d 804 (La.App. 3d Cir. 1973), writ refused 290 So.2d 908 (La.1974), where young boy who drank coke that had wire and residue in it and was nauseated for one night received $400; Simmons v. Baton Rouge Coca-Cola Bottling Company, Ltd., 282 So.2d 827 (La.App. 1st Cir. 1973), where plaintiff who drank Tab with decomposed moth in it and vomited three times but missed no work received $200; Mushatt v. Page Milk Company, 262 So.2d 520 (La.App. 4th Cir. 1972), where plaintiff who used canned milk and suffered from food poisoning with nausea and diarrhea which cleared up within several days but who thereafter became very nervous and as a result of the occurrence and had to continue treatment for her nerves for a considerable period of time was awarded $650.
      In the recent case of Wright v. Ouachita Coca-Cola Bottling Co., Inc., 415 So.2d 309 (La.App.2d Cir. 1982), we affirmed a lower court award of $2000 for a plaintiff who drank a coke with a foreign substance, vomited, missed more than four days of work, had several visits to the doctor, was placed on a bland diet and was still complaining of stomach pains at time of trial. We noted however in this opinion:
      A review of the record convinces us that while this award is somewhat high, it is not an abuse of the trial judge’s much discretion in light of the injuries suffered by the plaintiff.

      . La.R.S. 13:4533 provides:
      The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.


author: PRICE, Judge.

text:
    RELIANCE INSURANCE COMPANY, Plaintiff-Respondent, v. David P. TADLOCK and Robert E. Tadlock, Defendants-Applicant.
    No. 15058-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.
    Rountree & Hicks by S. Maurice Hicks, Jr., Shreveport, for plaintiff-respondent.
    Gist, Methvin, Hughes & Munsterman by David A. Hughes, Alexandria, for defendant-applicant.
    Before PRICE, MARVIN and SEXTON, JJ.
   PRICE, Judge.

Writs were granted in this case on the application of defendants, David P. Tadlock and Robert E. Tadlock, to review the correctness of a judgment denying their exceptions of res judicata and no right of action. Finding that grounds for sustaining the exception of no right of action exist, we reverse and set aside the judgment and order that the exception be sustained.

On June 22, 1980, David Tadlock was operating a vehicle owned by Robert Tad-lock on Louisiana Highway 117 near Bell-wood, Louisiana. C.E. Jones was operating a vehicle in which his wife, Goldie Jones, was a guest passenger. The two vehicles were involved in a collision when the Tad-lock vehicle crossed the center line striking the Jones vehicle head-on. As a result of the collision, C.E. and Goldie Jones were fatally injured. At the time of the accident, David Tadlock was insured by State Farm Mutual Automobile Insurance Company. The plaintiff, Reliance Insurance Company, was the uninsured motorist insurer for C.E. and Goldie Jones.

On August 23, 1980, State Farm Mutual Automobile Insurance Company paid policy limits to the heirs of C.E. and Goldie Jones. Upon settlement, the heirs executed a full release in favor of the insurer and in favor of David Tadlock and Robert Tadlock.

The release provides as follows:

“FOR THE SOLE CONSIDERATION of Ten Thousand and 00/100 Dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned hereby releases and forever discharges David Tadlock and State Farm Mutual Automobile Insurance Company, their heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of actions or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 22nd day of June, 1980 at or near Natchi-toches, La.
Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages hereabove mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.
We reserve all our rights against Reliance Insurance Company.
Undersigned hereby accepts draft or drafts as final payment of the consideration set forth above.”

Subsequent to the settlement and execution of the release, plaintiff-insurer made payments to the Jones’ heirs pursuant to the terms of its uninsured motorist coverage. On June 22, 1981, plaintiff-insurer filed the instant suit, naming David and Robert Tadlock defendants, seeking to recover these amounts paid to the heirs under the policy by means of subrogation.

On October 22, 1981, defendants filed the exceptions of res judicata and no right of action alleging that the releases executed by the heirs acted to bar the suit filed by plaintiff. On June 21, 1982, judgment was rendered dismissing the exceptions. On August 31,1982, this court granted a writ of certiorari on defendants’ application pursuant to the standard enunciated by the Supreme Court in Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., et al, 396 So.2d 878 (La.1981), and further proceedings in the district court were stayed pending disposition by this court.

The defendants argue that the trial court erred in finding that an insurer who makes payment to its insured under the uninsured motorists provisions of its policy, subsequent to the insured’s receipt of payment from and granting of a general release to the tortfeasor and his insurer, has subrogation rights against the tortfeasor. Plaintiff argues that the reservation of all rights against the uninsured motorist carrier contained in the release executed by the heirs included the reservation of the personal right of subrogation against the responsible parties which was triggered by payment under the uninsured motorist provisions of the policy.

In a recent case, Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981), the Supreme Court closely examined subro-gation rights under the uninsured motorist statute. The court concluded that:

“. . . upon payment an insurer, pursuant to a subrogation agreement contained in its policy, becomes conventionally subro-gated to its insured’s right against the uninsured tortfeasor. Our general law governing subrogation, Civil Code Articles 2159-62, has not been repealed or replaced by the uninsured motorist statute and applies to an uninsured motorist carrier’s subrogation to the right of its insured.” Id. at 408.

The court noted that:

“[cjonventional subrogation occurs when the creditor, receiving his payment for a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor ...” LSA-C.C. art. 2160.

It is well settled that a subrogee can have no greater rights than the subrogor and acquires only those rights held by the subrogor as of the time of payment.

Therefore, it is clear that plaintiff, Reliance Insurance Company has no right of subrogation against defendants, David and Robert Tadlock. The release executed by the heirs acted to bar any subsequent claims against the Tadlocks and State Farm Mutual Automobile Insurance Company. Thus, when plaintiff made payments to the heirs pursuant to the uninsured motorist coverage, the plaintiff could not be subro-gated to any rights of the heirs against the Tadlocks. The rights of the subrogor-heirs to any future claims against the Tadlocks had been extinguished by the release which acted to automatically terminate any claims by the subrogee-insurer.

Plaintiff argues that the reservation of rights against the uninsured motorist carrier essentially acted to preserve its right of subrogation. This argument is without merit. The language in the release clearly states that the heirs are reserving all rights against plaintiff, Reliance Insurance Company, rather than “in favor of” or “for.” This language can not be interpreted as reserving the personal right of subrogation against the responsible parties which would be triggered by payment under the uninsured motorist provisions of the policy.

For the reasons assigned, the judgment overruling the exception of no right of action is REVERSED and SET ASIDE and it is ordered that this exception be sustained and plaintiff’s suit be dismissed at its costs.