author: CHEHARDY, Judge.

text:
    Mrs. Jewel Buckel, Wife of/and John E. BUCKEL v. MAISON BLANCHE CORPORATION, Otis Elevator Company and Travelers Insurance Company.
    No. 10651.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 21, 1980.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, James Ryan, III, Annabelle H. Walker, New Orleans, for plaintiffs-appellants.
    James J. Morse, Julian G. Baudier, Jr., New Orleans, for Maison Blanche Corp. and Travelers Ins. Co., defendants-appellees.
    Drury & Lozes, James H. Drury, New Orleans, for Otis Elevator Co., defendant-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiffs, Jewel and John Buckel, appealed a trial court judgment dismissing their suit for general and special damages allegedly sustained by Mrs. Buckel and the Buckel community, respectively, as a result of an ankle twisting incident on the escalator of Maison Blanche department store. Named defendants were Maison Blanche Corporation, its public liability insurer, Travelers Insurance Company, and the escalator manufacturer, Otis Elevator Company.

On January 10, 1980, this court rendered an opinion, 379 So.2d 849 (La.App.) affirming the judgment of the trial court. Plaintiffs petitioned for a rehearing urging Marquez v. City Stores Co., 371 So.2d 810 (La.1979), “as clearly applicable to this case.” We did not agree and refused to grant a rehearing.

Plaintiffs then applied to the Supreme Court for a writ of certiorari or review, which was granted on April 8, 1980. 385 So.2d 782 (La.). The Supreme Court ordered the judgment of January 10, 1980 vacated and remanded the case to the Court of Appeal for reconsideration in light of Marquez v. City Stores Co., supra.

The petition of Mrs. Buckel alleges these facts:

“One of the shoes worn by petitioner, Jewel Buckel, jammed in the escalator causing petitioner to fall and violently strike the floor with the resulting injuries herein sued upon.” (Emphasis ours.)

However, the testimony belies this allegation. For example, we note the following response of Mrs. Buckel on cross-examination:

“Q Oh, I see. Now, did any part of your shoe get jammed in the escalator to your knowledge?
A I don’t know.
Q The reason why I ask you that, you say and I think your attorney prepared the petition, I just want to know, and I imagine he got the information from you, he says in Paragraph 3, one of the shoes worn by you jammed in the escalator causing you to fall and violently strike the floor with resulting injuries, well, now, you can’t tell me that it got jammed, can you, your shoe?
A I know that I didn’t hit my knee.
Q Let’s take one thing at a time. It didn’t get jammed into anything on the escalator, did it?
A It did — if it was jammed, it would have stayed in the escalator.
Q So your answer is, it did not get jammed?
A No, because it caught on to something on the escalator.
Q And you did not fall as it said in Paragraph 3, did you?
A No, I didn’t fall.
Q You didn’t violently strike the floor, did you?
A No.
Q Right before this happened, or at the time it happened or immediately af-terwards, did the escalator come to a stop?
A No.
Q Did the escalator jerk immediately before or at any time when this happened?
A No, I don’t remember it.
Q Or immediately after?
A I don’t — no, I don’t remember it jerking at all.
Q Did it feel like it bumped at the time right before it happened?
A No.
Q Did it do anything unusual at the time that this accident happened?
A As far as I can remember, I would say no * * *

The record rules out any malfunctioning of the escalator or unusual happening that could account for the sudden “attack” on the heel of plaintiff’s left shoe and injury to her ankle. Although such malfunctioning need not be proven in view of Marquez v. City Stores Co., supra, it is a factor in determining whether plaintiff’s encounter was with the escalator or some outside force. Had plaintiff established a sudden movement, a jerk or an unusual happening on the escalator, it could have followed that some neighboring passenger was caused to step on her heel and consequently the escalator could have been the cause of plaintiff’s injuries.

But Mrs. Buckel did testify that the escalator was crowded. On cross-examination she continued:

“Q Now, you said something a little while ago that interests me. You said that I felt something pull on my heel, I couldn’t look down to see. Something to the effect that this escalator was crowded?
A It was crowded.
Q You couldn’t look down from where you were standing and look at your foot?
A Well, it happened so quickly, there was people in the front and people all over, it no sooner happened and I was almost at the top and off.
Q In other words, this happened and then there was about what, two or three or four steps to the top? From the time that it happened?
A From the time it happened I would say maybe there was three steps from the top.
Q You didn’t look down at your foot?
A I couldn’t, there was too many people around, I just wanted to get off the escalator.
Q Let’s talk about that. Was there someone directly behind you?
A Well, I don’t know about directly behind me, I know there was a man in back of me.
Q Was there somebody right in front of you?
A Yes, there was.
Q Was there just one person behind you, a man or was there more?
A I don’t know how many people.” (Emphasis ours.)

And in response to questioning from her counsel, Mrs. Buckel stated:

“A Well, I got on the escalator and it was really crowded, and I was holding on both rails * * * I felt something, I felt my heel, my heel felt like something grabbed ahold of it or something pulling, and my ankle turned, it happened so fast there was a man in back of me, my knee buckled under me, I was going down and he gave me a hand and stopped me from falling and then I was already up on the second floor and my shoe was off.
Q Okay. You indicated that you were holding on, is that correct?
A Yes.
Q With — how many rails are there on the escalator to hold on to?
A Two.
Q Were you holding on to both of them?
A At that particular time I was holding on to both of them.
Q Do you recall the approximate position of your feet on the step of the escalator?
A Well, positively, I mean I would say maybe, it would be the middle, but I am not really sure because this happened so quickly that it just — .” (Emphasis ours.)

From plaintiff’s own testimony these facts are established:

1. The escalator was crowded with people in front and to the rear of Mrs. Buckel.
2. There apparently was no malfunctioning of the escalator.
3. Plaintiff was standing in the center of the escalator holding on with both hands and obviously facing forward.
4. She was three steps from the second floor when incident occurred.
5. Something or someone “attacked” her heel.
6. Although her knees buckled, she did not fall because of the assist of an unknown man behind her.
7. Within seconds of the accident she was off the escalator with her left shoe hanging on her foot.
8. The shoe did not jam in the escalator.

An examination of plaintiff’s left shoe, allegedly damaged in the escalator incident, discloses less than a one-inch linear scratch on the sole and slight abrasions on the front. It was and remains the opinion of this court that the position of Mrs. Buckel on the escalator, obviously facing forward, with one hand on each escalator rail, standing in the middle or slightly to the left of the middle, absolutely precludes the conclusion that somehow the escalator, at its left side, caught Mrs. Buckel’s shoe in the front tip and drew it into an opening between the steps and side rail less than one-half inch wide.

Plaintiff’s testimony establishes her as a person “respectful” of an escalator, who boarded defendant’s escalator on the first floor, positioned herself in a forward position, held on with one hand on each rail, and rode in this position on a crowded escalator to within three steps of the second floor. It is difficult for us to imagine how the escalator could have engaged the toe of her left shoe. This indicates that her foot somehow assumed a position perpendicular to her forward-facing body and thus enabled the machinery to grab the toe of plaintiff’s shoe with injury resulting to her heel. Plaintiff’s consistent testimony about the grabbing of her heel just does not give credence to the idea that the front of her shoe was caught in the side of the escalator.

On the contrary, it is much more reasonable to conclude that some rider on the escalator, perhaps the person who caught her, anxious to disembark “attacked” her heel with his foot — causing plaintiff to react in violent defense and thus possibly push her foot into the side of the escalator, if indeed the escalator did the slight damage to the shoe disclosed by an examination.

Even if we fully accept the testimony of plaintiff’s expert that the toe was caught in the escalator, the facts lead us to conclude that a man of weight accidentally bearing down on plaintiff’s heel could have caused plaintiff to react with enough violence to cause the heel of her shoe to partially separate from the shoe, exposing some of the nails.

To sum up, the plaintiff simply has not carried the burden of proving her accident was caused by the escalator.

Roger Harris, who worked for Otis Elevator Company for 28 years, qualified as an expert in the maintenance of escalators. After hearing the testimony of plaintiff, he testified that his theory of how the accident happened was quite different from plaintiff’s expert. The following testimony is the response of Harris on direct examination:

“Q Now, this man who was on the stand, Mr. Liebkemann, had a theory as to how the lady’s shoe came off. Do you have a theory after hearing her testimony?
A Yes, but, mine is quite different from his.
Q Would you tell us your theory?
A Well, from her testimony, there was an awful lot of people on the escalator and I feel that somebody stepped on her heel rather than her getting her toe caught.
Q Did you hear her testify — scratch that. You heard no testimony from her that her toe got caught in the escalator, did you?
A That’s right.”

Furthermore, this witness, on cross-examination, testified:

“Q From time to time, that space on one side to the other would be a little greater than the other side, as it moves on towards the top of its run, is that correct?
A It should never exceed a quarter of an inch with even the movement in it.”

And then, concerning plaintiff’s view of the incident, Harris stated:

“Q Counsel asked you something about the shoe getting caught, would it be probable that this shoe would get caught in the way counsel would have us believe that it got caught?
A No, sir.
Q With a foot in the shoe.
A No, sir.”

We conclude, once again, that the trial judge reached the proper conclusion in dismissing plaintiff’s claim and that the most logical explanation of what happened was expressed by Harris, who concluded that someone stepped on plaintiff’s heel.

Facing forward with both hands holding on and reasonably concluding that the toe of the shoe was facing forward, how could the toe of the shoe have lodged in the side of the escalator? Once again we note plaintiff’s testimony:

“Q When you made this report to whoever it was at Maison Blanche, do you remember what you told them?
A As far as — it’s been a long time, I remember telling — it was a lady — I don’t remember her name, but I told her about my heel at first got caught, something pulled and grabbed my heel on the step, that is what it felt like to me.
Q If she says that you said that you got your heel caught, would that be more than likely what you told her?
A Well, that is what it felt like to me, I don’t know if it got caught, it felt like something pulled it, grabbed my shoe.

THE COURT:

Mr. Drury.

CROSS EXAMINATION

BY MR. DRURY:

Q Mrs. Buckel, you said that you don’t know if your heel got caught. It felt like something grabbed my shoes, I think that is your exact words a moment ago?
A Yes.
Q What part of your shoe did you feel like was grabbed ?
A It felt like the heel, that is what it felt like.” (Emphasis ours.)

In Marquez v. City Stores Co., supra, plaintiff sued City Stores and others for injuries sustained by his 3/2-year-old child on a descending escalator, while standing on the same step as plaintiff and holding on to the rail. The child’s foot was caught in the side of the escalator between the moving stair tread and the adjacent panel of the escalator. The child was wearing relatively new and not excessively worn tennis shoes. The accident necessitated the surgical amputation of half of the child’s big toe, resulting in a 10% permanent loss of his foot. The court observed, “If this escalator were safe for small children with small feet, then James’ shoe could not have been caught in this opening.”

Our understanding of Marquez is that the act of actually getting one’s foot caught in an escalator is an occurrence sufficiently unusual to establish a defective escalator. Thus if the evidence would prove damages as a result of a rider’s foot being caught in the escalator, liability would ensue. Were we convinced that the evidence presented by plaintiff established that her foot had actually been caught in the side wall of the escalator, we would cast the defendant in damages. However, the proper determination in our opinion, based on all of the facts presented in the instant case, leads to the conclusion that someone stepped on plaintiff’s heel — plaintiff reacted — and perhaps in some fashion the alleged damages to the toe and front sole of the shoe resulted from contact with the escalator.

In Marquez, the Court continued:

“* * * We find that the escalator which caused damage was in the custody of City Stores; that the escalator was defective; and that the injury occurred through this defect. Therefore, we hold City Stores liable for maintaining a defective escalator and in not preventing its vice from causing injury.” 371 So.2d at 814.

We find that Mrs. Buckel’s ankle suffered an injury as a result of a violent “attack” on the heel of her shoe while riding the escalator which was in custody of Maison Blanche. Accordingly we find that plaintiff has failed to sustain her burden of proving that the injury was caused by her shoe being jammed or caught in the escalator or by any other contact with the escalator other than riding bn it. Emphatically, under Marquez, had plaintiff established by the evidence that her shoe was caught by the escalator and the injury resulted, we would find Maison Blanche liable for maintaining a defective escalator and in not preventing its vice from causing injury. The plaintiff need not prove the occurrence of some “unusual incident” or “malfunction” in the escalator since we agree that Marquez holds that an injury occasioned by contact with an escalator would not happen were the escalator not defective. However, we do not interpret Marquez to mean that the custodian of an escalator is responsible in damages to a rider where a claimant fails to prove that the escalator caused or was mechanically involved in an accident on said escalator.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Mrs. Lennie WILEY et al., Plaintiff & Appellant, v. Bobby Frank WILEY, Defendant & Appellee.
    No. 7597.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Reeves & Owens, Jack F. Owens, Jr., Harrisonburg, for plaintiff-appellant.
    George F. Griffing, Jonesville, for defendant-appellee.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   CULPEPPER, Judge.

This is a suit for past due rent on the sublease of farm land. Plaintiffs, Lennie Wiley and nine of her descendants, sued defendant, Bobby Frank Wiley, alleging Lennie Wiley entered into a six-year sublease agreement with defendant, and that he has failed to pay the full amount of rent. Defendant answered, alleging the agreement was intended to be an assignment of the lease, not a sublease, and that he has complied with all of his obligations under the assignment and owes plaintiffs nothing. The trial judge found the agreement was a sublease and that $105.00 in past rent was owed. Plaintiffs appealed. Defendant answered the appeal, seeking reversal of the judgment and avoidance of costs.

The substantial issue on appeal is the amount of rent owed plaintiffs under the sublease.

The facts pertinent to the issues on appeal are as follows: In September of 1967, Cap Wiley leased approximately 300 acres in Catahoula Parish from the Tensas Delta Land Company. About 50 acres was cleared, and the rest was wooded. The lease ran from September 6,1967 to December 31, 1977. As lessee, Wiley agreed to pay rentals on the following schedule.

Concurrently with the signing of this lease $300.00
January 1, 1969 300.00
January 1, 1970 300.00
January 1, 1971 300.00
January 1, 1972 300.00
January 1, 1973 3,000.00
January 1, 1974 3,000.00
January 1, 1975 3,000.00
January 1, 1976 3,000.00
January 1, 1977 3,000.00

Also in 1968, Cap Wiley borrowed money from Farmers Home Administration, principally to clear the rest of the land and buy farm equipment. The loan was secured by a mortgage on the leasehold interest and on approximately 60 acres and a home owned by Wiley.

On May 19, 1972, Cap Wiley died. He was survived by his widow, Lennie, and three sons. Lennie Wiley was unable to read and write. Representatives of the FHA approached Lennie and asked what she wished to do about the lease and mortgage. Lennie and her sons agreed together that a cousin, Bobby Frank Wiley, would farm the leased land.

On June 5,1972, Lennie and Bobby Frank entered into a written agreement on an FHA form entitled “Crop-Share — Cash Farm Lease”, which contains the following provisions pertinent to issues on appeal:

“1. Rental rates. — The tenant agrees to pay the shares or quantities of crops and cash as indicated below:
CROPS OR ACRES SHARE CASH PLACE OF SALE DATE OF SALE IMPROVEMENTS RENT RENT OR DELIVERY DELIVERY OR _PAYMENT
Soybeans 300 Vi At elevator Fall-each where sold year
2. Additional agreements in regard to rental rates:
$3000.00 cash or Vi share whichever is greater for 1973 crop year and each year thereafter. All monies to come in joint check to landlord and Farmers Home Administration until FHA indebtedness is paid in full.
“E. TERM OF LEASE
1. Term. — The term of this lease shall be 6 year(s) from June 5,1972, to December 31, 1977, and this lease shall continue in effect from year to year thereafter until written notice of termination is given by either party to the other at least 0 months before expiration of this lease or any renewal.
F. MISCELLANEOUS PROVISIONS
5. Farm records. — The tenant agrees to keep financial and production records of all income and expenses of mutual interest, which records shall be accessible to the landlord at all times, and to furnish an annual report to the landlord on or before the following date-Accounts between the two parties shall be settled on or about-”

Bobby Frank planted and sold a soybean crop in 1972 and in 1974 through 1977. He never paid Lennie Wiley any money, but he paid the following amounts directly to Ten-sas Delta and the FHA:

AMOUNT PAID TO TENSAS YEAR DELTA AMOUNT PAID TO FARMERS HOME ADMINISTRATION
1972 $200.00 $4,746.26
1973 $3,000.00 $ (flood-no Crop)
1974 $3,000.00 $2,136.05
1975 $3,000.00 $2,594.27
1976 $3,000.00 ' $1,485.64
1977 $3,000.00 0

No accounting was ever made to plaintiffs, but, each year, Lennie Wiley went to the FHA offices to check to see if Bobby Frank paid on the mortgage debt. She never demanded any additional payments until the FHA obligation against her home was satisfied in 1976. In 1977, she asked to be paid according to the terms of the sublease. Bobby Frank denied owing any rent to her and claimed their agreement had terminated in 1976.

This suit was filed on March 30, 1978. Lennie Wiley died on October 12, 1978, and the administrator of líer estate was added as a party to this suit.

The primary dispute at trial was the intent of the parties in undertaking their agreement. Plaintiff properly objected to testimony contradicting the written terms of the sublease. On the issue of the amount of rent owed, plaintiffs introduced business records from Louisiana Delta Elevator to show the amount of defendant’s crop production for the years of the sublease. There was no objection to these records, which showed the following:

“FRANK WILEY GRAIN SUMMARY 1972-1977
YEAR BU. RECEIVED AMOUNT PAID
1972 5891.37 $18,430.53
1973 Flood waters no purchase from Frank
1974 14,034.05 60,860.55
1975 5,140.35 22,678.91
1976 10,086.64 65,198.57
1977 9,846.08 61,287.84”

Plaintiffs contend defendant owes the difference between a one-fourth share of the total production receipts and the amounts paid to Tensas and the FHA, i. e., $34,315.

Defendant testified the Louisiana Delta records are the only evidence of his crop production because he kept no independent records. Defendant stated, however, that he was farming other land as well as the subleased land. Defendant contends the one-fourth share of production equaled approximately $5,000 per year, and that the sublease terminated in 1976, so he owes plaintiff nothing.

At the close of trial, the trial judge rendered the following oral reasons for judgment.

“Judge: Alright, gentlemen, the way I see it, this . . and this is no criticism of Mr. Routon or . . other than the fact that he is working for the Federal government . . the Feds always take care of the Feds. I think what was intended here was simply an assignment of this lease, Mr. Griffing, but we didn’t get that. We didn’t get that. In order to protect the FHA you used this sublease. When you use a sublease then you’ve got to . . the sublessor has got to be . . sublessee has got to assume any obligations he might have to the original lessee. Which was to pay a fourth of the rent. Alright. Now, I find that all the years except ’77 the fourth of the rent was in fact paid.
“Mr. Owens: ’76 and ’77, your Honor. “Judge: Was in fact paid and went to extinguish the indebtedness to FHA and to Tensas Delta. Alright. I have averaged these up for the years that we got them here and it looks like thirty one hundred and five . . my figures here show that. Now in 1973, Mr. Wiley paid three thousand dollars for and in behalf of Cap Wiley and his heirs. Had Cap Wiley been living it would have come out of his jeans, but it came out of Bobby Frank’s so the Cap Wiley estate is going to owe him for that . . three thousand dollars. And I get it all figured out here according to my figures, Mr. Bobby Frank Wiley owes the Cap Wiley estate a hundred and five dollars. That’s what the judgment is. The best I could get.
“Mr. Griffing: Actually it was thirty one hundred and five, but you give him credit for three thousand.
“Judge: Three thousand dollars, yes.
“Mr. Griffing: (unintelligible)
“Judge: That he paid in ’73. By doing that it’s a hundred and five dollars.
“Mr. Owens: Your Honor, I had asked for written reasons for judgment and I’d like to file a motion for appeal.
“Judge: Want the written reasons for judgment or as stated. You can just run that off the record. See, you didn’t prove anything that he made. I just had to take that average. That’s . . that is a figure that could be more. It could be less, but I have no proof of it, as Mr. Griffing pointed out before he put on his case.”

The oral reasons for judgment are not entirely clear. There is no doubt that the trial judge found the agreement was a sublease, and that defendant was obligated accordingly as the sublessee. Neither party has questioned this portion of the judgment nor raised any issue concerning the trial judge’s apparent misstatement in identifying defendant’s obligation as being “to pay one-fourth of the rent." Therefore, we will proceed on the basis that the sublease is to be enforced according to its written terms.

Plaintiffs contend the trial court erred in determining defendant only owed one year’s rent of $3,105. As the basis for this contention, plaintiffs make a two-part argument, which involves both the evidence and allocation of the burden of proof.

First, plaintiffs maintain the Louisiana Delta Elevator records are the best evidence of defendant’s total production receipts, and that these records show a balance due of $34,315.49. As we understand the argument, plaintiffs argue the Louisiana Delta records are accurate and constitute prima facie evidence of the amount owed.

Plaintiffs point out that defendant presented no evidence in opposition to the records, other than his own testimony to the effect that the records included receipts from crops grown on other land as well as the subleased land. Plaintiffs take the position defendant’s testimony was too vague and inaccurate to establish any commingling of crops occurred. If, however, commingling was shown, plaintiffs then contend plaintiff had the burden of proving its extent, under the provision of the sublease which required defendant to keep such records.

We find much merit in plaintiff’s over-all position and will discuss each issue in the order raised. First, we accept the first stage of plaintiffs’ argument. There was no dispute that the Louisiana Delta records are the best evidence of defendant’s total production receipts for the years listed. Defendant testified that he himself relied on Louisiana Delta, and kept no independent records. Defendant testified he informed John Routon, who kept the records for the FHA, as to the amount of production from the sublease, but Mr. Routon testified FHA records were destroyed after two years. Defendant also testified he booked some beans, but, in answer to interrogatories, he stated booking records had been destroyed. We are convinced the Louisiana Delta records are objective, reliable accounts and that no other records exist.

The Louisiana Delta records, however, were not the only evidence of the amount of rent owed. Defendant was cross-examined on this issue and testified as follows:

“Q. Alright, in ’74, you paid three thousand dollars to Tensas Delta?
A. Right.
Q. And two thousand one hundred thirty six and five cents to Farmers Home Administration?
A. If that’s what the record shows, that’s what it is. Because I didn’t (unintelligible) that to be correct.
Q. Assuming . . . Would that be one quarter of what you made off that three hundred acres?
A. Above the three thousand dollars? I’ll be plain with you, Mr. Owens, it is more than what I made, because one truck load of them came out of another field that I had up the road. I had finished cutting beans down there and I went up the road and went to cutting beans and I cut one truck load and it rained and I went to the elevator and picked up the check and I carried it in . . Of course John didn’t know but Mrs. Wiley asked me was that off of Ten-sas Delta and I told her yeah, all but one truck load. I said put it all on there because I got to get it paid off.
* * * * * *
Q. How much do you estimate that you have in cultivation?
A. I’ve got two hundred and fifty seven acres in cultivation.
* * * * # *
Q. Are you maintaining that this two thousand one hundred and thirty six dollars plus the three thousand Ten-sas Delta equals to one quarter of what you made on the place?
A. I am. For a fact.
Q. And for the year 1975 three thousand plus two thousand five hundred and ninety four dollars is one quarter of what you made
A. Right.
Q. Of what grew on the place? And for the year 1976 three thousand dollars plus one thousand four hundred and eighty five dollars is one quarter .
A. No sir .
Q. Of what you grew in ’76?
A. No sir. I’m not telling you that for '76 but every year prior to that that’s exactly what you’ve got and it came off that place. Now, I’m not telling you that for ’76 because it was my understanding that the lease was mine when it was paid off.
Q. Okay.
A. I paid it off in 1976 and I didn’t keep a record of it. After ’76 it was all in one thing because I paid Ten-sas Delta the three thousand dollars rent and the lease states . . if you will read the lease back, I believe that they were supposed to have paid the three thousand dollars and I paid it in the Pall when I harvested.
Q. And for the year of 1976, do you have any idea of how many years you raised on that place?
A. None whatsoever.
Q. Did you have a good crop?
A. I made a fair crop in ’76. Sure did.
Q. What about in 1977?
A. I made a fair crop in ’77.
Q. What did you get per bushel for beans in ’77? Do you remember?
A. I don’t know. You might could ask Mr. Edwards and find out what the average was. Mr. Routon probably could tell you what the average was in ’76 or ’77. I couldn’t, because I had booked some and some I didn’t book.
Judge: Did you make any . . when you went to the elevator did you make any record of which place the beans came off of?
A. No sir, I didn’t. Because after the old lady had told me what she did and told John what she did, well we just decided well it would . . I could just tell John what the place where it come off of and it would be alright because up the pri- or to ’77 everything was fine.
******
Q. Alright, Mr. Wiley, let me ask you this. You were farming other places in the area .
A. That’s right.
Q. At the time?
A. I was farming a place up the road of Mr. Roy Ferguson’s.
Q. And you knew you had to account for one quarter of the crop on this three hundred acres?
A. Until it was paid out.
Q. And you didn’t keep any books on this or any records to indicate how much you made on this particular tract of land over all this period of time?
A. I didn’t keep any records after Mrs. Wiley told me after ’72.
******
Q. But how did you know what you were supposed to pay?
A. Well, I consider myself to be honest and what I would take up there I would . . when I would take the check to Mr. Routon I would tell him . that that came off of Tensas Delta. I didn’t keep a complete record. I sure didn’t, Mr. Owens.
Judge: That year that you paid five thousand dollars, that five thousand was one-fourth, four fourths should be twenty thousand dollars.
A. Twenty thousand dollars.
Q. That’s right.
A. And you figure that, Mr. Owens. Now in ’74, you figure that over two hundred fifty seven acres and you take a hundred and twenty five acres out that the water took . stayed on and you figure that in ’75 I had planted it and the water came back in ’75 and took some beans that were waist high and I don’t know if John seen them, but Jerry Fairbanks can vouch for it. He went down there and looked after the water went down. I had beans that were waist high that the water took in ’75 and I wound up with about a hundred twenty five or thirty acres on the place for three years in a row. And one year, nothing, in ’73.
Judge: Were there ever any years where the one fourth did not equal the three thousand dollars?
A. In ’73. Yes sir, your Honor, in ’73, but never no year after that because I always made more than that, more than the twelve thousand dollars. In other words, I would always have it held out to go on the debt.
Judge: In ’73 you paid three thousand dollars and got nothing.
A. Yes sir, that’s right. In ’73 I paid the three thousand dollars and got nothing.
Q. Of course, you knew you was going to have to pay the three thousand dollars if it wasn’t a limb out down there, didn’t you?
A. I knew I was going to pay the three thousand dollars but I wasn’t supposed to pay it in January.” (Emphasis supplied)

As we understand it, the issue raised is the effect of defendant’s testimony on plaintiffs’ prima facie evidence of the amount owed. We do not agree with plaintiffs’ conclusion that the testimony is too vague to have any effect. From defendant’s testimony, we have no difficulty in concluding that the Louisiana Delta records may reflect receipts from crops grown on other land.

This conclusion brings us to the second part of plaintiffs’ argument. Plaintiffs argue that if defendant’s testimony established commingling occurred, defendant should have the burden of proving its extent. We agree.

Under the sublease, defendant had a specific contractual obligation to maintain production records. For no apparent reason, defendant chose not to keep records, leaving a proper determination of the rent exclusively within his own ability to recall. Plaintiffs offered other reliable accounts indicating the amount of rent owed. If defendant wished to dispute these accounts, he had the burden of offering evidence that the accounts were misleading or incorrect. In addition to the sublease provisions, we are supported by the principle stated in Spyker v. International Paper Co., 173 La. 580, 138 So. 109 (1931) that:

“The law is that, when one of the parties to a suit has more means of knowledge concerning a matter to be proved than another, the onus is on him. State v. Bischoff, 146 La. 748, 85 So. 41; Griffin v. Drainage Commission, 110 La. 840, 34 So. 799, 801; Jones v. T. & P. Ry. Co., 125 La. 542, 51 So. 582, 136 Am.St.Rep. 339.”

We also come to this conclusion because of the specific issue raised. Commingling is a serious matter between lessor and lessee.

LSA-C.C. Article 2710 provides:

“Art. 2710. The lessee is bound:
1. To enjoy the thing leased as a good administrator, according to the use for which it was intended by the lease.
2. To pay the rent at the terms agreed on.”

LSA-R.S. 9:3204 provides:

“§ 3204. Lessor’s part of crop considered his property; disposition; penalty
In a lease of land for part of the crop, that part which the lessor is to receive is considered at all times the property of the lessor.
The lessee or any person acting with his consent who sells or disposes of the part of the crop belonging to the lessor shall be fined not more than one thousand dollars, or imprisoned for not more than one year, or both.”

In a case where the amount of production is disputed, we do not believe a lessee can be allowed to relieve himself of payment by merely suggesting commingling occurred at some time or by remaining silent as to the extent to which he himself has allowed the lessor’s share of production to become commingled with crops from other lands. In this case, we find the lessee who relies on the fact of commingling, must show its extent.

With the exception of 1973, when no crops were produced, defendant stated that for all years prior to 1976, one-fourth of the production from the sublease was approximately $5,000. For the purposes of this discussion, we will accept this figure as sufficiently accurate. We find no conflict between this testimony and the Louisiana Delta records. Considering the total receipts shown for the year 1972 and 1975, the one-fourth share in these years could not have been more than $5,000. Defendant also testified that in both 1974 and 1975, he lost production from the area of the sublease due to high waters. From this, we are able to conclude production from the sublease in 1974 was about the same as in 1975. Defendant gave no details concerning the years 1976 and 1977, but stated production was good. We will discuss the effect of this testimony later.

At this point, we are able to dispose of plaintiffs’ contentions insofar as they concern the rent due for 1972 through 1975. Under the sublease, defendant owed either $3,000 or one-fourth share of production, whichever was greater. Based on defendant’s testimony and the Louisiana Delta records, we find defendant owed $3,000 for 1973 and $5,000 for 1972, 1974 and 1975. Plaintiffs have alleged payments to Tensas and FHA in these same amounts. Therefore, we find the evidence sufficient to support the trial court in finding the rent for 1972 through 1975 was paid.

We do not reach this same conclusion as to the years 1976 and 1977. As noted above, defendant failed to offer any testimony as to production for these years. The only evidence as to the rent owed for 1976 and 1977 is plaintiffs’ evidence. The Louisiana Delta records show that the number of bushels produced in 1975, when defendant testified he only obtained production from one-half the sublease. We find nothing in the record from which we can conclude commingling of crops occurred in 1976 and 1977. Therefore, we find plaintiffs’ evidence was sufficient proof of their demand of these years, and the trial court erred in holding otherwise.

The rent due for 1976 and 1977 was one-fourth share of the production, less the amounts paid on plaintiffs’ behalf to Tensas and FHA. Using the Louisiana Delta records, in 1976 defendant produced 10,086 bushels, 39 bushels per acre on 257 acres, which sold for $6.46 per bushel, a total of $65,198. On this basis, the one-fourth rent for 1976 was $16,299. In 1977, defendant produced 9846 bushels, 38 bushels per acre on 257 acres, which sold for $6.23 per bushel, a total of $61,387. Thus, the one-fourth rent for 1977 was $15,346.

The total rent for 1976 and 1977 is $31,-646. Defendant must be credited with $3,000 paid to Tensas for 1976 and 1977, a total of $6,000, plus the $1,485 balance paid on the FHA mortgage on October 14, 1976, a total credit to defendant of $7,485. Thus, defendant owes plaintiffs a balance of $24,-160 for rents for the years 1976 and 1977.

Plaintiffs contend the trial judge erred in awarding a $3,000 credit to defendant for rent paid in 1973, the year when no crops were produced. We agree. The written sublease clearly requires defendant to pay the $3,000 each year. We find no basis for allowing this credit.

For the reasons assigned, the judgment appealed is amended to increase the award to plaintiffs to the sum of $24,160. Otherwise, the judgment is affirmed at defendant’s cost.

AFFIRMED, AS AMENDED.


author: FORET, Judge.

text:
    James Henry WILLIAMS, Plaintiff, v. LOUISIANA MACHINERY COMPANY, INC., et al., Defendants.
    No. 7602.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      John G. Williams, Natchitoches, for plaintiff.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendants.
    Before FORET, SWIFT and STOKER, JJ.
   FORET, Judge.

This is a suit by James Henry Williams against Louisiana Machinery Company, Inc., and its insurer, Commercial Union Assurance Company, to recover damages to a Caterpillar 397 diesel engine allegedly sustained as a result of repair work performed on the engine’s governor.

The trial court, finding the defendant negligent and the plaintiff free of contributory negligence, awarded $4,000.00 to plaintiff for the loss of the engine, $1,043.93 for the purchase price of the replacement parts and repair services, and $1,800.00 for the cost of installation of a new engine.

Both parties have appealed. The defendants seek the reversal of the trial court’s judgment, or, in the alternative, that it be affirmed as to quantum. Plaintiff urges that the judgment should be reversed insofar as it fails to recognize this claim as one in redhibition and that he is therefore entitled to attorney’s fees. Additionally, plaintiff seeks an increase in damages.

The plaintiff is the owner and operator of a cotton gin in Natchitoches Parish, Louisiana. This gin was powered by a 397 Caterpillar diesel engine from 1951 through part of 1977. Plaintiff had several employees, some of whom were mechanics, who did some service and maintenance on this engine from time to time. Defendant, Louisiana Machinery Company, was called upon to repair any condition which required involved or expert mechanical skills.

In July of 1977, plaintiff took the governor to the shop of Louisiana Machinery in Alexandria, Louisiana. It was discovered during the course of repairs being made to the governor that the spindle shaft needed replacement. A new spindle shaft along with a new pinion assembly was installed in the governor by Bradford Beebe, a mechanic employed by Louisiana Machinery. The new pinion assembly was approximately Vs inches to % inches shorter than the old assembly which was removed from the governor, a characteristic which prevented the governor from functioning properly. On or about September 8, 1977, the repaired governor was replaced on the Caterpillar diesel engine. The engine was then started to determine whether or not it was functioning properly. As a result of the malfunction of the governor, the engine ran at an excessively high rate of speed and was virtually destroyed before it stopped.

REDHIBITION

Counsel for plaintiff labors at length in an attempt to show that this suit is one in redhibition, thereby entitling plaintiff to an award for attorney’s fees. This contention is without merit.

Redhibition is dealt with in our Civil Code by Articles 2520, et seq. Article 2520 provides:

‘‘Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

Plaintiff is correct in his assertion that the spindle and pinion assembly sold to him were useless for the purpose for which they were purchased. This uselessness, however, was not due to any vice or defect in the thing. “Vice or defect” as used in Article 2520 contemplated a physical imperfection or deformity; a lacking of a necessary component or level of quality. The thing plaintiff purchased was not defective within the contemplation of Article 2520. It was merely the wrong part. It was not capable of performing the function for which it was purchased, not because it was defective, but because it was the wrong part. As the trial court very astutely observed: “Redhibition addresses itself to the quality of the merchandise or thing, and not to a situation where a buyer is furnished with a part, or component, that does not fit”. Therefore, the basis of plaintiff’s remedy lies not in an action in redhibition, but in negligence.

FAULT

LSA-C.C. Article 2315 states, in pertinent part:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” .

This article is the basis for tort liability in Louisiana. For a plaintiff to recover in Louisiana for damages, the damages must have been caused by the “fault” of another. There must be a duty owed by the defendant, or by someone for whom the defendant is answerable, to the plaintiff; a breach of this duty; and this duty must be the cause-in-fact of the damages suffered by the plaintiff. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Ferdinand F. Stone, Tort Doctrine, 12 Louisiana Civil Law Treatise § 270 (1977).

“Fault” as used in Article 2315 encompasses more than negligence. It is the breach of a duty owed by one party to another under particular facts and circumstances of a given case. United States Fidelity & Guaranty Co. v. State, Through Department of Highways, 339 So.2d 780 (La.1976). “Fault” is a broad concept embracing all conduct falling below a proper standard. Kahoe v. State Farm Mutual Automobile Insurance Co., 349 So.2d 1345 (La.App. 1 Cir. 1977), writ denied, 350 So.2d 1212 (1977).

The standard of care to be applied to the case sub judice is found in LSA-C.C. Article 2316 which states:

“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

All persons or entities holding themselves out as possessing certain skills or capabilities owe a duty to whomever procures their services to perform the task in a non-negligent, prudent and skillful manner.

A repairer has a duty, arising in tort, to exercise reasonable care and skill in the design and repair of the object to be repaired commensurate with the risk of harm flowing from the normal use of that product. Todd Ship Yards Corp. v. Turbine Service, Inc., 467 F.Supp. 1257 (5 Cir. 1978), Restatement (Second) of Torts, § 404 (1965).

The record shows that Bradford Beebe, a Louisiana Machinery mechanic, was never given instructions as to the size of spindle required in the type of governor presented for repair. More importantly, Beebe testified that he did not use the serial numbers from the engine when ordering the new spindle and in fact admitted that the wrong part was used. (Tr., pgs. 176-187) Furthermore, plaintiff was told by an employee of defendant, Louisiana Machinery, that no special skill or expertise was required to re-attach the governor to the engine. It is disputed whether or not plaintiff was instructed as to the procedure to be followed in performing a “backlash” test. The trial court was in a much better position to evaluate the credibility of the witnesses on this issue than is this Court. We can find nothing which would indicate that his determination as to this issue is manifestly erroneous. We are therefore of the opinion that Louisiana Machinery’s negligence was a cause-in-fact of the plaintiff’s harm; that Louisiana Machinery owed a duty of workmanlike performance to plaintiff; that this duty was breached, and plaintiff’s damage was a direct and consequential result thereof.

Defendants could exculpate themselves from liability by showing that an intervening act of plaintiff rose to the status of a superseding cause. Defendants argue that plaintiff was negligent in not performing a “backlash” test before attaching the governor to the engine and in not connecting the throttle linkage which would have allowed him to shut the engine off before it was damaged. Defendants further assert that this alleged negligence of plaintiff was a superseding cause. We disagree. We do not think plaintiff was negligent in acting as he did. Even if he were negligent, a repairer or manufacturer is subject to liability even though a dangerous condition is discoverable by an inspection which a person in William’s position should be under a duty to make. Todd Ship Yards Corporation v. Turbine Service, Inc., supra, Restatement (Second) of Torts, § 396 (1965). Intervening negligence or an intervening cause does not necessarily relieve the tort-feasor of liability. Dixie Drive It Yourself System v. American Beverage Co., supra; Hernandez v. Toney, 289 So.2d 318 (La.App. 1 Cir. 1973).

DAMAGES

The primary objective of a plaintiff seeking redress for property damage through the courts is to be returned as nearly as possible to the status or position he was in immediately preceding the damage caused by the defendant. Our Supreme Court, in Lambert v. American Box Co., 144 La. 604, 81 So. 95 (1919), stated:

“. . . The obligation of defendant, however, is to indemnify plaintiff—to put him in the position that he would have occupied if the injury complained of had not been inflicted on him. . . . ”

In Coleman v. Victor, 326 So.2d 344 (La.1976), at page 347, the Supreme Court noted:

“Three tests have been utilized in determining property damage: (1) cost of restoration, if the damage [sic] item can be adequately repaired; (2) value differential, difference in value prior to and subsequent to the damage; (3) cost of replacement, less depreciation, if the value before and after the damage cannot be reasonably determined or if the cost of repair is more than the value. Peak v. Cantey, 302 So.2d 335 (La.App.1st Cir. 1974); Roshong v. Travelers Insurance Company, 281 So.2d 785 (La.App.3rd Cir. 1973); Aetna Insurance Company v. Pa- lao, 263 So.2d 394 (La.App.4th Cir. 1972); Granger v. Bouillion, 220 So.2d 764 (La.App.1st Cir. 1969); Taylor v. Allstate Insurance Company, 205 So.2d 807 (La.App.1st Cir. 1967); Keating v. Boyce Machinery Corp., 196 So.2d 623 (La.App.1st Cir. 1967).”

The Court continued stating that no mechanical rule can be applied with exactitude in assessment of property damage under LSA-C.C. Article 2315. Each case must rest on its own facts and circumstances as supported by the proof in the record.

In applying the tests mentioned above to the facts and circumstances of this ease, we conclude that the value differential, the difference in value prior to and subsequent to the damage, would be a proper award. The record shows that the cost of restoration is far in excess of the value of the engine at the time that it was destroyed. Likewise, the third test mentioned above cannot be used since this engine was no longer manufactured at the time it was destroyed and therefore could not be replaced by one like the original. Also, the record is devoid of any evidence relating to depreciation.

Both Bobby Wilson and George Rolph, defendants’ experts, testified that the value of the engine at the time of its destruction was between $2,000.00 and $4,000.00. The trial court accepted the amount of $4,000.00 as appropriate. We agree. The record also reveals that the cost of repair of the governor was $1,043.93, and that the cost of installation of a new engine would be approximately $1,800.00. We think the trial court’s award of $6,843.93 is proper.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne equally by the parties, one-half by plaintiff, James Henry Williams, and one-half by the defendants, Louisiana Machinery Company, Inc. and Commercial Union Assurance Company.

AFFIRMED.

      . “Governor”, as used herein, is an apparatus attached to an engine which is designed to regulate its speed or revolutions per minute.

      . Having concluded that plaintiffs action is not one of redhibition, plaintiffs demands for attorney’s fees is without merit.


text:
    Clara Sue COBB et al., Plaintiffs-Appellees, v. INSURED LLOYDS et al., Defendants-Appellants.
    No. 7716.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearing Denied Aug. 22, 1980.

      See also, La.App., 387 So. 21.
    Milling, Benson, Woodward, Hillyer & Pierson, Charles D. Marshall, New Orleans, for defendants-appellants.
    Provosty, Sadler & deLaunay, William H. deLaunay, Alexandria, for plaintiffs-appel-lees.
    Stafford, Stewart & Potter, Grove Stafford, Jr. and Russell L. Potter, Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for defendant-appellee.
    Rivers & Willson, Larry Rivers, Alexandria, for plaintiff-appellant.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   CULPEPPER, Judge.

Clara Sue Cobb was injured by the accidental discharge of a revolver, located behind the front seat of an automobile in which she was a passenger. In the present suit, she and her father, Howell Cobb, sue Gabriel Bell, owner and operator of the automobile and owner of the revolver, and Insured Lloyds, Bell’s automobile liability insurer. In a companion suit, they sue J. P. Sauer & Sohn, manufacturer of the revolver, and Hawes Firearms Company, distributor of the revolver. A jury awarded Howell Cobb $85,000 and to Clara Sue Cobb $700,000 against defendants, Gabriel Bell, Insured Lloyds, J. P. Sauer & Sohn and Hawes Firearms Company, in solido. Defendants Sauer and Hawes appeal. Clara Sue Cobb answered the appeal, seeking loss of earnings and an increase in general damages.

On appeal, appellants contend the jury was manifestly erroneous in finding (1) the revolver was in normal use, (2) the revolver was unreasonably dangerous for normal use, either because the design was defective or warnings inadequate, (3) defective design or failure to warn was a legal cause of the accident, (4) Clara Sue Cobb’s damages are $700,000, and (5) Hawes Firearms Company is liable. Defendants contend the trial judge erred in (1) instructing the jury on the use of a product manufactured by a third party, (2) in allowing the jury to know Bell’s insurance policy limits, and (3) in denying defendants’ motion for directed verdict.

The general facts giving rise to the accident are undisputed. On the night of February 12, 1976, Gabriel Bell drove to the Howell Cobb residence, intending to take Clara for a ride. On the front seat of his ear, Bell had the fully loaded revolver in a holster with the hammer “flush to the cylinder.”

Bell arrived at the Cobb residence at approximately 10:30 P.M. Before Clara entered the automobile, Bell placed the holstered revolver on the rear floorboard on the driver’s side. Bell and Clara drove around for approximately an hour and a half. Near midnight, they were driving on Highway 28, heading towards Alexandria. Immediately after crossing a small bridge, Bell heard a loud explosion and instantaneously determined that the revolver had discharged, wounding Clara. The bullet went up through the passenger seat, entered Clara’s body through the left flank and passed through her body, transecting the spinal cord and exiting near the right shoulder.

Bell proceeded to the emergency room at St. Frances Cabrini Hospital in Alexandria. Clara was examined by Dr. Harry Brian, who determined her spinal cord had been severed. He directed that she be transferred to Baton Rouge for surgical assistance. In Baton Rouge, she was treated by Drs. Adrian Kell Mclnnis and John Robert Clifford for ten days before being transferred to Houston.

Clara’s first period of treatment in Houston was from February 23 to June 6, 1976. Dr. Roy Edward Carter, director of rehabilitation, gave the following summary of her treatment and condition:

“Diagnosis was spinal cord lesion secondary to gunshot wound at approximately T-ll . . she was thought to have a T-9 paraplegia, neurogenic bladder, neurogenic bowel, pulmonnary congestion, left renal contusion by history, ate-lectasis the right upper lobe, acute respiratory failure, pneumonitis of the left lower lobe, diagnosis of obesity, bronchitis, a left femoral thrembophlebitis, urinary tract infection and previous history of spleenectomy (performed in Baton Rouge).”

Clara returned to Alexandria in June to gain strength for rehabilitation therapy, which began in Houston in November, 1976. Upon discharge in January, 1977, Dr. Carter gave the following report:

“She was doing very well at the time of discharge, which on second admission was January 15th, 1977 . . . . She was medically doing well. Her general nutrition was much higher than it had been, her blood count had returned to normal. She was doing her [intermittent] cath., had been taught this and taught all of her nursing activities, the urine was sterile with no evidence of bacteria. She was independent in all of her wheelchair activities, which meant that her transfers back and forth as we mentioned before were done without assistance. She completed her driving training program. She was finishing homemaking activities which basically consist of fixing simple meals and fixing bed covers and so forth, and was subsequently discharged then on January, 15th.”

Clara returned to Houston for a third extended period of treatment from November 27, 1977 to approximately January 9, 1978, during which she completed rehabilitation training. Although Clara has made remarkable progress, she will require medication and treatment for the rest of her life. According to Dr. Carter, the primary problems of the paraplegic are as follows:

“The major problems that would face any paraplegic would be two very significant ones. One, of course, is urinary tract infection, which may ascend from the bladder to the kidneys and compromise the kidneys’ function, and/or result in kidney stones, which may result in the same type of thing. The second major problem is that of involving the skin, which because of the anesthesia and alteration of its own circulation is more sensitive to thermal injury from either severe hot sun or external heat of any type, hot water, et cetera, as well as an increase sensitivity to pressure, that the individual cannot feel, to pressure ulceration as we mentioned before. The third area, not quite as common as the first two, depending on the level of the spinal injury, would be that of a lowered resistance where the patient may get a respiratory infection, which then has to be treated with a little more vigor and a little more intelligence than in the normal individual, because of some impairment of ability to cough and clear secretions out of the lung.”

The weapon which caused Clara’s injuries is a Hawes “Western Marshal” single-action revolver. It was manufactured in Germany by J. P. Sauer & Sohn in December of 1974 and shipped to California to the Hawes Firearms Company, sole distributor for Sauer at that time. As required by U. S. law, the name of both the manufacturer and the distributor is forged onto the gun by the manufacturer. Under an agreement existing between the two companies, Hawes was responsible for operating instructions and provided a warranty certificate with the following instructions and information:

THE HAWES “WESTERN MARSHAL” ORIGINAL SIX-SHOOTER REVOLVER LOADING — FIRING—CORRECT CARE

GENERAL. The Hawes “Original” Western Marshal Six-Shooter is one of the most simple, rugged and dependable handguns ever manufactured. Used correctly it will serve you indefinitely without ever requiring major repairs. Before handling or shooting the Western Marshal Six-Shooter, BE SURE to read the instructions and carefully note the precautions listed.

ACTION: “Single Action” means that the hammer of this revolver must be drawn back — or “cocked” — with the thumb, before each shot is fired. When cocking the Marshal Six-Shooter, notice that there are three distinct hammer positions as follows:

1. SAFETY POSITION — with the firing pin held safely away from the cartridge primer, by pulling the hammer back to the first click or safety position. The revolver should always be carried in this position. With the hammer in this position the firing pin will not touch the rear of the cartridge in the cylinder.
2. HALF-COCK — with the hammer approximately half way back and the cylinder bolt depressed, leaving the cylinder free to rotate.
3. FULL-COCK — with the hammer all the way back and the revolver ready to fire.
IMPORTANT — The Safety and Half-Cock notches are designed to prevent the trigger from being pulled, so DO NOT try to force the trigger with the hammer in either of these two positions. If it is desired to lower the hammer, pull the hammer back slightly; then pull the trigger and lower the hammer carefully.

LOADING. Draw the hammer back to the Half-Cock position. Do not touch the trigger but leave it free to snap into the notch. (NOTE: If the hammer should be at the Full-Cock position, lower it all the way first and then draw back to Half-Cock. Otherwise, the bolt cam lever cannot operate to release the cylinder.) This will leave the cylinder free to rotate for loading. Open the Loading Gate on the right-hand side of the revolver and load each chamber. Close the loading gate.

UNLOADING. After firing, draw the hammer back to Half-Cock position, open the gate and operate the ejector (located under the barrel) to eject the empty cartridge cases.

WARNING. “Fanning” the Western Marshall Six-Shooter is not recommended. To permit “Fanning,” the internal mechanism of any single action must be specially altered. This alteration may render the revolver both unsafe and/or unsatisfactory for general all-around shooting.

On May 14, 1975, the revolver was sold and shipped to Security Jewelers in Alexandria, Louisiana, where Bell purchased it on January 12, 1976, exactly one month before the accident. Bell testified that he did not receive any instructions with the gun, which he carried out of the store in a bag. Bell handled the revolver according to his own understanding and experience. He had previously owned approximately eight different types of rifles or handguns. Bell also frequently read magazines having to do with guns and ammunition.

As on the night in question, it was Bell’s practice to carry the revolver fully loaded with the hammer flush against the cylinder in the “full forward” position. He had done so with the only other single action revolver he had owned, a Ruger .44. Bell felt the revolver was “perfectly safe” when carried in this manner. Unfortunately, this was not correct. When the Hawes revolver is fully loaded and the hammer is in the full forward position, the firing pin rests on the primer of the cartridge in the chamber. In this position, the revolver may discharge if the hammer is struck a blow sufficiently sharp to cause the firing pin to ignite the primer.

The Hawes-Sauer revolver has a safety design known as the “sear safety” or “sear safety notch.” The revolver’s hammer is notched for the three positions listed above in the instructions. As the hammer is drawn back, the sear can be engaged in any of the notched positions. The first position, also called the “quartercoek”, is the safety position. The hammer was not in this position at the time of the accident.

NORMAL USE

The first issue on appeal concerns the effect of Bell’s failure to have the hammer in the safety position. In Weber v. Fidelity & Casualty Insurance Company, 259 La. 599, 250 So.2d 754 (1971), the court held a product is defective if “unreasonably dangerous to normal use.” We stated in the case of Avoyelles Country Club v. Walter Kidde & Co., 338 So.2d 379, 382 (La.App. 3rd Cir. 1976) the relevant inquiry is “what was the normal or intended use of the product, and was plaintiff making such normal or intended use of it?”

Appellants argue the normal or intended use of the revolver was to carry it in the quartercoek position. The instruction card explained three possible cocking positions and stated the revolver should always be carried on what was labeled as the “Safety Position.” Because Bell was carrying the revolver contrary to the instructions, appellants argue the revolver was not in normal use.

We believe appellants have drawn the concept of normal use too narrowly. In the case of Fox v. American Steel Building Company, Inc., 299 So.2d 364 (La.App. 3rd Cir. 1974) we stated:

“. . . the law does not require that the manufacturer make the product ‘fool proof’ or ‘accident proof.’ It does require, however, that it exercise reasonable care in the design and fabrication of its products which are of such a nature that, if not carefully made, can cause foreseeable injury to persons using the products for purposes which the manufacturer may reasonably expect them to be used. Failure of the manufacturer to exercise such care renders it liable if injury results from the lawful use of the product in a manner and for a purpose for which the manufacturer may be deemed to reasonably expect. Leathem v. Moore, 265 So.2d 270 (La.App. 1st Cir. 1972); Gauthier v. Sperry Rand, Inc., 252 So.2d 129 (La.App. 3rd Cir. 1971) supra.”

Normal use is a matter of foreseeable use and may include something broader than operation exactly in accordance with the manufacturer’s instructions. See, Fox v. American Steel Building Company, Inc., supra; Avoyelles Country Club v. Walter Kidde & Company, supra; AMCO Underwriters of Audubon Insurance Company v. American R & S Corp., 239 So.2d 501 (La.App. 1st Cir. 1976).

In the present case, the revolver was being used for a purpose reasonably foreseeable by the manufacturer. Revolvers are often carried fully loaded. The above quoted instructions state how to load all six chambers. Also, revolvers are often carried in automobiles for protection. The only serious question is whether the manufacturer could or should have reasonably foreseen the revolver would be carried fully loaded with the hammer in the full forward position.

First, we note the obvious fact that the revolver has a full forward position. Appellants own expert, Mr. Edward B. Cross-man, recognized full forward as one of four hammer positions for this revolver. The manufacturer’s instructions also give directions for placing the hammer full forward “if it is desired. . . .” We also consider the fact established through expert testimony that the full forward position is the safety position on many other commonly used handguns. As a manufacturer and distributor of a variety of guns, Sauer and Hawes knew or should have known this, and they should have reasonably foreseen this revolver would be carried fully loaded with the hammer in the full forward position. Accordingly, we find that the manner of Bell’s use of the revolver, though not in accordance with the instructions, was within “normal use” of the product.

We next consider the question of whether the revolver was unreasonably dangerous for normal use, either because the design was defective or the warnings inadequate. We will discuss each of these issues separately.

DEFECT IN DESIGN

The record contains much evidence relating to the history and evolution of the single action revolver design. According to the experts, including a representative from the appellants, this type revolver will fire without activation of the trigger if it is fully loaded, the hammer is in the full forward position, and the revolver is either dropped or the hammer otherwise receives a blow of sufficient force. Plaintiffs’ and defendants’ experts were in disagreement, however, as to how much force is required for such a firing.

Plaintiffs’ expert, Mr. Stanton 0. Berg, testified as to the amount of force required to fire the weapon with the hammer in the full forward position. Mr. Berg loaded the gun with cartridges armed only with primers, placed it in a test stand, and dropped varying weights from a height of twelve inches on the hammer. He found that the minimum amount of weight which would cause the weapon to fire was four ounces, a force equal to one-quarter point of energy. Two ounces dropped from that height caused indentation on the primer cap, but did not cause a discharge. Based on his tests, Mr. Berg expressed the opinion the gun was very dangerous if carried fully loaded with the hammer down.

Plaintiffs’ experts supported their position that the design was unsafe with testimony concerning an alternate design developed by the Ruger Firearms Company for its single action revolver. In 1973, Ruger designed a “transfer bar”, which prevents the hammer, in the full forward position, from contacting the firing pin. The inference is that Sauer could and should have developed a similar safety device.

Appellants’ experts, Mr. James E. Clark and Mr. Edward B. Crossman, offered their opinions that the design of the revolver was not defective. According to their testimony, Sauer had strengthened the component parts of the sear safety, in order to ensure the revolver would not fire from the safe position. Mr. Clark also discounted Berg’s weight test, saying the results were not realistic because the test was performed with the revolver in a vice. Clark and Crossman stated they attempted to duplicate the conditions under which the accident occurred but were unable to make the revolver discharge. Neither could offer any explanation or theory as to how the revolver discharged.

Defendants cite Gauthier v. Sperry Rand, Inc., 252 So.2d 129, (La.App. 3rd Cir. 1971) for the rule that the design need not be “accident proof” or “foolproof.” While we agree a manufacturer is not bound to produce a foolproof product, the issue of defective design is factual and depends on the circumstances of each case, Leathem v. Moore, 265 So.2d 270 (La.App. 1st Cir. 1972).

In the present case, the jury was not manifestly erroneous nor clearly wrong in its factual finding that the design was defective. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

ADEQUATE WARNINGS

It is an established principle in the law of products liability that a manufacturer has a duty to give adequate warning of unreasonable danger involved in the normal use of its product, where the manufacturer knows or should know of such danger. Chappuis v. Sears Roebuck & Company, 358 So.2d 926 (La., 1978).

Here, defendants knew the revolver could fire with the hammer in the full forward position, yet they failed to give any express warning of this known danger. The explanation for the safety position states the revolver should “always be carried in this position”, but there is no warning of the great danger of carrying the weapon with the hammer down. We find such an express warning should have been given. See American Guaranty & Liability Insurance Company v. Little, 328 So.2d 706 (La.App. 3rd Cir. 1976), for a similar holding.

Appellants make several additional arguments related to the duty to warn. First, appellants contend there was no duty to warn against an obvious danger, such as the fact that a loaded revolver may discharge if not on safety. We do not agree the design defect in this case was an obvious danger. Despite his experience with guns, Bell did not even know of the revolver’s dangerous propensity to discharge. Plaintiffs’ expert, Mr. Berg, stated it was his opinion the general public did not know the revolver would fire with the hammer in the full forward position. In his opinion, the warnings were “totally inadequate.”

Second, defendants contend there was no duty to warn Gabriel Bell because he was a knowledgeable user, who knew or should have known of the danger involved. We reject this argument also. Although he had experience with guns in general, he obviously did not understand safety mechanisms and did not know of the danger involved here. The jury was properly instructed on this issue and decided adversely to defendants’ position.

PROXIMATE CAUSE

Appellants next argue defendant Bell’s negligence was the sole and proximate cause of the accident. This argument has no merit. The combined negligence of Bell and of the appellants caused plaintiff’s injury. See the duty risk analysis and the discussion of intervening negligence in Dixie Drive it Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

QUANTUM

Appellants contend the award of $350,000 for future medical expense is excessive. We do not agree. Dr. Carter testified research indicates a paraplegic in plaintiff’s condition will require a minimum of $4,000 to $5,000 yearly for routine medical care. This figure does not include any possible complications or hospitalization. The evidence shows plaintiff has already experienced complications on two occasions. The evidence shows a probability of medical expenses beyond routine care. We cannot say the jury abused its much discretion in determining the amount of this award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La., 1977).

In her answer to the appeal, Clara Cobb contends the jury abused its much discretion in failing to make a specific award for her loss of earnings. The evidence shows she was 18 years of age at the time of the accident and had never been employed. Plaintiff now attends college but has little hope of gaining fulltime employment in the future. While she is able to move about independently, plaintiff lacks the physical stamina necessary to continue her movements for an eight-hour work day.

The jury was instructed on the issue of damages as follows:

“Under the law there are two kinds of damages involved in cases of this kind. Namely, special damages and general damages. Special damages are items which usually are susceptible of reasonable and exact proofs, such as medical and hospital expenses, loss of wages and matters of that kind. By general damages, I mean such things as future and past physical and mental pain and suffering; and past, present and future loss of body functions. These damages are not susceptible of any exact proof or mathematical certainty and there is no fixed rule by which they may be determined.”

The trial judge clearly distinguished between “special damages”, such as loss of wages and “general damages”, such as loss of body functions. This is a correct statement of the law. Within its discretion, the jury could have decided the proof of loss of wages was not sufficiently certain for an award of special damages. Also, it could have included loss of body functions in the award of $350,000 for general damages. Considering the awards as a whole, we cannot say the jury abused its much discretion.

LIABILITY OF HAWES AS DISTRIBUTOR

Appellant Hawes contends there is no basis for finding it liable for the defect in the product manufactured by Sauer. We disagree.

The name “Hawes Firearms Co.” was forged onto the revolver. Hawes was sole distributor and had responsibility for instruction and warranty repair. Insofar as the American consumer was concerned, Hawes occupied the position of manufacturer. Under the clear holdings of Media Pro. Consult. Inc. v. Mercedes-Benz of N. A., Inc., 262 La. 80, 262 So.2d 377 (1927) and Chappuis v. Sears, Roebuck & Company, 358 So.2d 926 (1978), Hawes is liable in solido with Sauer for the defect in the revolver which caused injury to plaintiff.

POLICY LIMITS

Sauer and Hawes contend the trial judge erred in allowing the jury to be advised that Bell’s automobile liability insurance is limited to only $5,000 per person. They argue this was prejudicial to them because the implication to the jury was that a judgment against Bell would be worth very little, whereas a judgment against Sauer or Hawes would fully compensate plaintiff for her serious injuries.

The question of whether liability insurance policy limits are admissible, where a defendant urges inability to pay, has been considered in several recent cases. In Domingue v. Continental Insurance Company, 348 So.2d 209 (La.App. 3rd Cir. 1977), the majority approved the trial court allowing the jury to hear the policy limits, even though the defendant did not urge inability to pay. The author of the present opinion dissented, on the basis that policy limits are admissible only where relevant to a defendant’s contention of inability to pay. In Moffett v. Lumpkin, 382 So.2d 278 (La.App. 4th Cir. 1980), the Fourth Circuit has apparently followed the rationale of the dissent in Domingue, concluding that the jury should not be told about the defendant’s insurance policy limits unless defendant has raised the issue of his inability to pay. In Guy v. Tonglet, 379 So.2d 744 (La., 1980), there was no issue as to insurance policy limits, but our Supreme Court held that in taking defendant’s discovery deposition he cannot be required to answer questions about his financial status unless he first declares that he will raise at trial the issue of his inability to pay.

In the present case, the defendant Bell urged at trial his inability to pay. Thus, under all of the cases cited above and even under the dissent in Domingue, it was proper to permit the limits of Bell’s liability insurance to go to the jury. We find no support for the argument by Sauer and Hawes that they were prejudiced by permitting the jury to be advised of Bell’s inability to pay.

For the reasons assigned, the judgment appealed is affirmed at the cost of appellants.

AFFIRMED.


text:
    Clara Sue COBB et al., Plaintiffs-Appellees, v. J. P. SAUER & SOHN and Hawes Firearms Company, Defendants-Appellants.
    No. 7717.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearing Denied Aug. 22, 1980.
    Milling, Benson, Woodward, Hillyer & Pierson, Charles D. Marshall, New Orleans, for defendants-appellants.
    Provosty, Sadler & deLaunay, William H. deLaunay, Alexandria, for plaintiffs-appel-lees.
    Stafford, Stewart & Potter, Grove Stafford, Jr. and Russell L. Potter, Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for defendant-appellee.
    Rivers & Willson, Larry Rivers, Alexandria, for plaintiff-appellant.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   CULPEPPER, Judge.

This is a companion case to Clara Sue Cobb, et al. v. Insured Lloyds, et al., 387 So.2d 13, in which a separate judgment is being rendered by us this date. For the reasons assigned in the companion case, the judgment appealed in the present case is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Thelma Leroy THRASH v. Willie THRASH.
    No. 7473.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Whitehead & McCoy, C. R. Whitehead, Jr., Natchitoches, for defendant-appellant.
    John G. Williams, Natchitoches, for plaintiff-appellant.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

The sole issue on appeal concerns the determination of a divorced husband’s interest, if any, in his former wife’s pension rights resulting from her participation in the Louisiana State Teachers Retirement System insofar as said rights are attributable to her employment during the existence of the community.

The issue arises in the context of a suit to partition the community’s assets following its dissolution as the result of a separation and divorce. The trial court held that the husband’s interest was limited to one-half of $11,373.23, the amount contributed to the retirement system during the existence of the community. We reverse and hold that the rights in the Teachers Retirement System which were acquired by the wife, as a result of her employment during the existence of the community, are community property and that the husband is therefore entitled to be recognized as owner of one-half of that portion of the benefits payable to the wife attributable to her employment during the community of acquets and gains.

The record reflects that Reverend Willie Thrash and Thelma Leroy Thrash were married on July 17,1941. Mrs. Thrash sued for separation on December 13, 1976 and a judgment of separation was rendered in her favor on February 2, 1977. A judgment of final divorce was rendered on May 18,1978. On October 11, 1978 Reverend Thrash petitioned to partition assets of the community of acquets and gains.

Among the assets alleged by Reverend Thrash to be community property, the classification of which by the trial court forms the basis of this appeal, are Mrs. Thrash’s retirement benefits accrued under the Louisiana Teachers Retirement System and a certificate of deposit for $14,000.00. It is undisputed that Mrs. Thrash taught forty years for the State of Louisiana, nine of which preceded her marriage to Reverend Thrash. Mrs. Thrash retired as of June 1, 1972 whereupon she began receiving monthly benefits from the retirement system. By joint stipulation it was established that the total contributions made by Thelma Thrash to the retirement system during the community, plus accrued interest thereon, to-talled $11,373.23. Attached to said stipulation was an exhibit showing the retirement benefits received by Mrs. Thrash from her date of retirement, June 1, 1972, through April 1,1978. Also attached to said stipulation was a letter from an Assistant Secretary-Treasurer of the Teachers Retirement System which set forth the actuarial computations relative to that portion of Mrs. Thrash’s retirement benefits which were acquired during the existence of the community. According to said letter Mrs. Thrash accumulated 31 years of service credit and 1.50 years of sick leave credit or a total of 32.50 years of creditable service during the existence of the community. Mrs. Thrash asserts that her retirement benefits are her separate property, and in reference thereto, she asserts that, although bought during the existence of the community, the certificate of deposit for $14,000.00 was bought with her allegedly separate retirement benefits and is therefore also separate property-

In a judgment dated February 27, 1979, the trial judge held that Reverend Thrash was entitled to the sum of $6,134.49, which represented one-half of that portion of her retirement benefits received after the dissolution of the community and attributable to her service and earnings during the existence of the community. The period covered by this allocation stems from December 13, 1976 through January 1979. Further, the trial court ordered Reverend Thrash to be recognized as the owner of one-half of 79% of each future retirement check received by Thelma Thrash from the Louisiana Teachers Retirement System, commencing with the retirement check due for the month of February, 1979. As to the certificate of deposit the trial court held that since Mrs. Thrash had failed to make a declaration pursuant to LSA-C.C. Article 2386 the certificate of deposit was presumed to be community property and Reverend Thrash was entitled to one-half of said certificate of deposit. Following the grant of a new trial, the trial judge reversed his former judgment and ruled that Reverend Thrash would not be entitled to any claim on Mrs. Thrash’s monthly retirement check from this system as Mrs. Thrash’s rights in the retirement system constituted her separate property. The trial court held that Reverend Thrash’s recoverable interest in the retirement funds was limited to one-half of $11,373.23 which represents the contributions from salary made by Mrs. Thrash during the existence of the community. Judgment reflecting the latter ruling was rendered and signed on June 27, 1979. The trial court’s original disposition concerning the certificate of deposit was unchanged in the second judgment. From this judgment both parties have appealed.

The trial court apparently relied on a line of jurisprudence starting with Scott v. Scott, 179 So.2d 656 (La.App. 2nd Cir. 1965) and including Broyles v. Broyles, 215 So.2d 526 (La.App. 1st Cir. 1968) and Blalock v. Blalock, 259 So.2d 367 (La.App. 2nd Cir. 1972) as the basis for its decision. The cited cases hold that a member’s interest in the State Teachers Retirement System established by LSA-R.S. 17:571 et seq., is the separate and paraphernal property of the member.

The Court in Scott v. Scott, supra, in reaching the conclusion that said benefits were the separate property of the member-spouse focused on the limited membership in the system and the exemption provisions of LSA-R.S. 17:573, and particularly the unassignability language contained therein, and on that basis, analogized the rights of a member of the retirement system to the rights of a beneficiary under a life insurance policy where no right is reserved to the insured to change the beneficiary. The courts in Broyles and Blalock reached identical conclusions by employing the reasoning set forth in Scott.

However appropriate the analogy employed in Scott v. Scott, supra, we do not follow that line of jurisprudence in the instant suit as recent Supreme Court decisions mandate a different approach in the determination of the community’s interest in deferred compensation plans.

In T. L. James & Company, Inc. v. Montgomery, 332 So.2d 834 (La.1976) and Sims v. Sims, 358 So.2d 919 (La.1978) the Supreme Court clearly set forth the guidelines to be followed in determining the community’s interest in deferred compensation plans, be they private or public, acquired during the existence of the community.

In T. L. James & Company, Inc. v. Montgomery, Justice Tate, as organ for the Court on rehearing, stated as follows:

“Each contribution of the employer to the funds entitles the employee or his beneficiary to share subsequently in the funds’ proceeds; when made during the community, the property right to share ultimately in the proceeds thereby acquired by the wage earner, is ‘acquire(d) during the marriage’, Civil Code Article 2402 and is thus a community asset. Civil Code Article 2334; Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956). Therefore, the value of the right to share proportionately in the fund, which right is contractually acquired by virtue of each contribution, falls into the community during which the contribution is made; for by each contribution, when made, the employee (or his beneficiary or estate) has acquired a right to share pro rata in the proceeds ultimately payable from the funds to the employee or his contractual beneficiary or his estate.
The value of the right to share in the retirement and profit-sharing funds is an incorporeal, movable right. When acquired during the existence of a marriage, the right-to-share is a community asset, which, at the dissolution of the community, must be so classified — even though at the time acquired or at the time of dissolution of a community, the right has no marketable or redeemable cash value, and even though the contractual right to receive money or other benefits is due in the future and is contingent upon the happening of an event at an uncertain time. Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169, 174-75 (1956). When a community is dissolved, the employee’s spouse is thus entitled to be recognized as the owner of one-half the value of the right-to-share, insofar as attributable to the contributions paid into the fund as deferred compensation to the employee during the existence of the community (i. e., even though it may not by the contract be payable at that time). Id.; Laffitte v. Laffitte, 253 So.2d 120 (La.App. 2d Cir. 1971), noted 33 La.L.Rev. 222-23 (1973). However, when the proceeds do become payable under the contract to the employee or his beneficiary or estate, the spouse is entitled at that time to receive payment as owner of her share of the proceeds, based upon the value of the right-to-share acquired during the community formerly existing between her and the wage earner.
For the reasons more fully set forth in our original opinion, we are unwilling to extend by analogy the principles applicable to the purchase of life insurance policies to the acquisition of community interests in retirement or profit-sharing funds such as those at issue. Jurispru-dentially, as confirmed legislatively, life insurance interests are treated sui generis as an exception to the usual rules of acquisition of property interests during a community.” (footnotes omitted)

With reference to the last paragraph quoted above, the footnote to said paragraph contains the following language.

“Likewise inapplicable, and inappropriate to extent by analogy (since the subject of special legislation), are the decisions holding that teachers’ retirement benefits are the separate property of the teacher rather than a community asset and are receivable by the contractual beneficiary, not the heir. Teachers’ Retirement System v. Vial, 317 So.2d 179 (La.1975). See also 27 La.L.Rev. 457-58 (1967).”

We do not view the language in the above footnote as a comment by the court on the correctness of the Scott line of cases. Nor do we find said footnote as controlling as (1) there was no question before the court in Montgomery concerning teacher retirement benefits; (2) the parenthetical comment within the footnote has dubious meaning as there is no “special legislation” which specifically provides that benefits under the teachers retirement system are the separate property of the teacher-spouse; and, (3) finally, any doubt that the language of said footnote might have cast on our decision today has been dispelled by the Sims decision.

In Sims, supra, the question before the court concerned the divorced wife’s interest in her former husband’s rights in a federal retirement system (5 U.S.C. § 8331 et seq.) insofar as they were attributable to his employment during the existence of the community. The court reaffirmed its holding in Montgomery and acknowledged the wife’s right-to-share in the retirement plan to the extent said rights were acquired during the marriage. In doing so, the Supreme Court rejected the reasoning which formed the basis of the Scott decision. The federal retirement plan has an exemption provision, 5 U.S.C. § 8346(a), which forbids the execution-sale or non-family assignment of the proceeds of the plan. Citing Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir. 1977) and Swope v. Mitchell, 324 So.2d 461 (La.App. 3rd Cir. 1975) the Supreme Court stated that such provisions do not preclude the classification of federal retirement rights as community property. Following this reasoning, it is likewise true that a state exemption statute, i. e., one forbidding the execution-sale and limiting the assignability of retirement plan proceeds, such as LSA— R.S. 17:573, supra, does not preclude the classification of state retirement rights as community property.

Exemption provisions such as 5 U.S.C. § 8346 in the federal plan and LSA-R.S. 17:573 in the State Teachers Retirement System plan are not dispositive of ownership as they serve no classificatory function. The purpose of such exemptions serve merely to protect the funds contributed into the public retirement system by the employee and preserve the integrity of said funds and the benefits accrued thereon for the purpose of providing a pension for the public employee in retirement.

On the basis of Montgomery and Sims we hold that in the instant case the retirement benefits acquired during the marriage are community property and the divorced husband has a one-half interest in that portion of the wife’s state teachers retirement benefits acquired during the marriage which may be calculated as follows:

Portion of pension attributable to creditable service during existence of community monthly _(31 years)_= 77.5% x V2 x annuity
Pension attributable to total creditable service (40 years)

Reverend Thrash is therefore entitled to 38.75% (77.5% X V2) of every pension check that Mrs. Thrash has received since the dissolution of the community and will hereafter receive.

With regard to the $14,000.00 certificate of deposit we affirm the trial court’s determination as to the community status of this item of property. We do so, not on the basis of the trial court’ opinion that Mrs. Thrash had failed to comply with LSA-C.C. Article 2386 et seq., rather we hold, based upon our review of the record, that Mrs. Thrash failed to overcome the presumption set forth in LSA-C.C. Article 2405.

For the above and foregoing reasons we reverse that part of the judgment appealed from limiting Willie Thrash’s interest in his former wife’s retirement benefits to one-half the community fund contributed to same, and order, adjudge and decree that Willie Thrash is entitled to 38.75% of every pension check Thelma Leroy Thrash has received or will receive from the Louisiana Teachers Retirement System since the dissolution of the community. In all other respects the trial court judgment is affirmed. Costs of this appeal are to be paid one-half (Vi) by plaintiff and one-half (Vi) by defendant.

REVERSED IN PART; AFFIRMED IN PART.

      . LSA-R.S. 17:573 provides as follows:
      “The right of a person to a pension, an annuity, or a retirement allowance, or to the return of contributions; the pension, annuity or retirement allowance itself; any optional benefit or any other right accrued or accruing to any person under the provisions of this Part; and the moneys in the various funds created by the Part are exempt from any state or municipal tax, all state income tax, and exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable except as otherwise specifically provided in this Part.”

      . As to the inappropriateness of the analogy of rights under the retirement system to life insurance see Judge Marvin’s forceful dissent in Roberts v. Roberts, 325 So.2d 674 (La.App. 2nd Cir. 1976); and the discussion in The Work of the Louisiana Appellate Courts for the 1965-1966 Term-Matrimonial Regimes, 27 La.L.Rev. 457-58 (1967).

      . 5 U.S.C. § 8346 provides as follows:
      “(a) The money mentioned by this subchap-ter is not assignable, either in law or equity, except under the provisions of subsections (h) and (j) of section 8345 of this title, or subject to execution, levy, attachment, garnishment, or other legal process, except as otherwise may be provided by Federal laws. . . ”

      . It is without dispute that Mrs. Thrash had forty (40) years of service in the State’s school system, nine of which were served prior to her marriage to Rev. Thrash. Although, according to exhibit 2 attached to the stipulation of the parties, Mrs. Thrash accrued an additional 1.50 years of creditable service, by reason of accumulated sick leave, during the existence of the community, we adopt the fraction 31Ao as the basis of community participation because the record does not set forth with exactness Mrs. Thrash’s total creditable service and we presume that she would be entitled to a proportional additional service credit for accumulated leave during the nine year period antedating her marriage.

      . LSA-C.C. Article 2405, at the date of dissolution, provided as follows:
      “At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess, are presumed common effects or gains, unless it be satisfactorily proved which of such effects they brought in marriage, or which have been given them separately, or which they have respectively inherited.”
      We note that Articles 2386 and 2405 have been repealed and replaced by Acts 1979, No. 709 § 1, eff. 1/1/80, in the form of Articles 2336, 2338, 2339 as to the substance of the former Article 2386 and the presumption of community is now set forth in Article 2340.