text:
    Dudley Joseph CAMPBELL, Plaintiff-Appellee, v. Edmond MOUTON and Pete Reaux, Defendants-Appellants.
    No. 8696.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.
    Writ Denied June 11, 1982.

      J. Barry Mouton, Lafayette, for defendants-appellants.
    D. Warren Ashy, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This is a suit for personal injuries sustained by the plaintiff allegedly as a result of a barroom brawl. The case was originally dismissed by the trial court when it granted defendants’ motion for a directed verdict. This court reversed that dismissal and remanded the case for a new trial. Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979). A jury trial was held on remand in which the jury rendered a verdict against the defendants, Edmond Mouton and Pete Reaux, in solido, for $125,000. The trial court denied defendants’ motion for new trial and remittitur and assigned written reasons for the denial. Defendants appeal the judgment of the trial court, alleging as error that (1) the jury verdict is contrary to the evidence and the law; and that (2) the award is excessive and not supported by damages proven by a preponderance of the evidence at trial.

The facts brought out in this trial are essentially the same as those elicited in the first trial of this matter which are related in our earlier decision. Plaintiff Dudley Campbell was a patron of Star Mist Lounge, owned by defendant Edmond Mouton, on February 26, 1977, in Abbeville, Louisiana. On that evening plaintiff sustained injuries in a fight with defendant Pete Reaux who was tending bar at the lounge at the time. Plaintiff contends that Pete Reaux inflicted his injuries with a knife, but defendant tried to show that it was more likely that plaintiff’s injuries were caused by his falling against some wrought iron grillwork in the lounge during the scuffle.

LIABILITY OF PETE REAUX

Three witnesses to the incident, Barbara Plummer, Dudley Guidry, and Riley Trahan, testified for the plaintiff that they saw a knife in Pete Reaux’s hand during the fight. One witness, Barbara Plummer, said she saw Reaux stab plaintiff in his armpit. Plaintiff claims to have seen the knife in Reaux’s hand only after the fight. Donald Miller, one of the police officers who arrived on the scene after the fight, testified that Reaux gave him a knife on that occasion with what appeared to him to be blood on the blade.

Pete Reaux, the defendant involved in the fight, claims that he did not pull his knife out of his pocket until after the fight was over, and that he did so only to protect himself from further attack. Furthermore, Reaux was the only witness who claims that the plaintiff fell against the wrought iron grillwork. None of the other witnesses to the fight, including two who testified for the defendants, saw Reaux or the plaintiff fall against the grillwork. Thus, the only substantial evidence that plaintiff was injured by any means other than by Reaux’s stabbing him with a knife is the testimony of Reaux himself. The jury was justified in its conclusion that plaintiff’s injuries resulted from Reaux’s tortious conduct.

Defendants further contend that plaintiff cannot recover for his injuries because he was the aggressor. There was ample evidence produced at trial from which the jury could conclude that Reaux, and not the plaintiff, was the aggressor. However, even assuming that plaintiff was the aggressor, Reaux was not privileged to respond with unnecessary force. Even where there is an aggressive act justifying a battery, the person retaliating may use only so much force as is necessary to repel the aggression, and he is liable for damages for injury caused by his use of force in excess of what was reasonably necessary. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (La.1969) and Curry v. Bagwell, 379 So.2d 1163 (La.App. 2nd Cir. 1980), writ denied, 383 So.2d 782. Resort to the use of a dangerous weapon in order to repel an attack on one’s person is not justifiable except in exceptional cases in which the actor’s fear of danger is not only genuine, but is founded on facts which would likely produce similar emotions in men of reasonable prudence. Curry v. Bagwell, supra, and Davis v. Marie, 339 So.2d 370 (La.App. 1st Cir. 1976), writ refused, 341 So.2d 5 (La.1977). There was no evidence in the instant case that Reaux was in genuine fear for his health or life from plaintiff’s actions to justify his use of a knife against plaintiff.

For the foregoing reasons, we find no manifest error in the trial court’s finding of defendant Reaux’s liability.

LIABILITY OF EDMOND MOUTON

Defendants contend that, even if defendant Pete Reaux is liable for damages to plaintiff, that defendant Edmond Mouton, Reaux’s employer, should not be liable for the actions of his employee. Defendants cite the last paragraph of LSA-C.C. art. 2320 which makes masters or employers responsible for damages occasioned by their servants and overseers only when the masters or employers “might have prevented the act which caused the damage, and have not done it.” Defendants contend that Mouton could not have prevented the act which caused the damage to plaintiff and therefore should not be responsible for the damage his employee caused.

This argument ignores the fact that the extent of liability of employers for their employees has been expanded jurisprudentially beyond the limits of Article 2320. In Louisiana, an employer (master) is liable for torts committed by his employee (servant) if, at the time, the servant is acting within the scope of his employment-acting as Civil Code article 2320 phrases it, “in the exercise of the function in which . . . employed.” LSA-C.C. art. 2320; LeBrane v. Lewis, 292 So.2d 216 (La.1974); Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (La.1968); Comment, 33 La.L.Rev. 110 (1972).

Defendants further contend that Reaux was not acting within the scope of his employment when he fought with and stabbed plaintiff, but that Reaux’s motives at the time were strictly personal. Defendants cite the following language from LeBrane v. Lewis, supra, as quoted in Mays v. Pico Finance, 339 So.2d 382 (La.App. 2nd Cir. 1976), writ denied, 341 So.2d 1123 (La. 1977):

“The determinative question is whether the tortious conduct of the employee ‘was so closely connected in time, place, and causation to his employment-duties, as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests.’ ”

In LeBrane v. Lewis, the court applied this test and found that an employer was liable for the act of its supervisor in stabbing a discharged employee who was still on the premises, because the fight was reasonably incidental to the performance of the supervisor’s duties in connection with firing the employee and causing him to leave the place of employment. Also, the fight occurred on the employment premises and during the hours of employment.

The fight between Reaux and plaintiff in the instant case also occurred on the employment premises during the hours of employment. Furthermore, the fight was reasonably incidental to the performance of Reaux’s duties as bartender. It is not unusual for a bartender to be charged with the responsibility of maintaining order in the bar as part of his duties. The evidence shows that Reaux became involved in the altercation with the plaintiff when he was attempting to break up another fight in the bar already underway. Thus, the fight between Reaux and plaintiff was “primarily employment-rooted” as was the fight in LeBrane v. Lewis, supra.

Defendants argue that Reaux was not hired as a “bouncer” and did not have the duty of maintaining peace in the bar. Edmond Mouton testified that he called the law when trouble occurred in the bar. (Tr. 315) This defense alone, however, will not absolve the employer of liability. The fact that Reaux’s action was designed to promote the interest and welfare of his employer makes the action one within the scope of his employment, even if the action was ineffective for this purpose or contrary to the employer’s orders. See Bordelon v. Great American Indemnity Co., 124 So.2d 634 (La.App. 3rd Cir. 1960), and Starnes v. Monsour’s No. 4, 30 So.2d 135 (La.App. 2nd Cir. 1947). In the Starnes case, a bartender’s employer was held liable for harm caused by the bartender’s forceful ejection of a patron, despite the fact that in doing so the bartender disobeyed direct orders of his employer to always call a policeman to eject obstreperous patrons. Therefore, even if Reaux acted against Mouton’s instructions in attempting to break up the fight in the bar, he still was acting within the scope of his employment.

The trial court’s finding that Edmond Mouton is solidarily liable with his employee for the latter’s tortious conduct is not manifestly erroneous and is hereby affirmed.

QUANTUM

Lastly, defendants contend that the jury verdict awarding $125,000 to plaintiff is an abuse of its discretion because the award., is not supported by the evidence. The jury award was a general verdict and we cannot know what value they assessed to any element of plaintiff’s injury. However, as pointed out in the trial court’s written reasons for judgment denying defendants’ motion for a new trial and remittitur, the jury in arriving at a figure must have considered the testimony of the expert witnesses and of the plaintiff himself as to his pain and suffering and disability, especially his inability to hold a job as a welder.

Plaintiff testified that he first became aware of his wounds after the fight at the police station because of a sudden pain underneath his arm. (Tr. 134) Dr. Sydney Crackower testified that it was not unusual to experience a delayed sensation of pain from a wound inflicted when the victim is excited and distracted by other sensory input. (Tr. 291) Dr. Crackower examined the plaintiff on March 4, 1977, six days after the fight, and plaintiff complained at that time of pain and numbness in the left arm extending to the fingers of the left hand. Plaintiff was still affected by this numbness at the time of trial, according to his testimony. While both doctors who testified discounted the possibility of damage to major nerves in plaintiff’s arm (Tr. 295 & 303), Dr. J. Lee Leonard, a specialist to whom plaintiff was referred by Dr. Crackower, stated that damage to unnamed sensory nerves under the skin could cause numbness. (Tr. 304) Dr. Leonard last saw plaintiff on June 16, 1977, at which time he was still complaining of numbness. (Tr. 304) Dr. Leonard testified that plaintiff’s problems were consistent with injury from a knife. (Tr. 305) He also stated that the damage was probably permanent, considering that plaintiff was still complaining of numbness at the time of trial. (Tr. 305, 306)

As to his permanent disability, plaintiff testified that the continuing numbness of his arm rendered him unable to continue his occupation as a pipe welder. Welders have to be certified for each job they seek by passing a test before employment. Welding requires the use of both hands, and plaintiff testified that the numbness in his arm caused him to fail or “bust” every pipe welding test he had taken since the injury occurred. (Tr. 141, 144) Plaintiff testified that during one test his left arm caught fire twice. (Tr. 142) Other welders testified as to the need of welders to use both arms effectively in their work. (Tr. 254) Two welders testified that they knew that plaintiff had passed welding tests prior to the injury (Tr. 253, 261), but one had seen him “bust” a test after the injury. (Tr. 254) A former employer of plaintiff testified that plaintiff had passed two tests for his company in 1975 (Tr. 268), but he had to fire plaintiff for inferior work in 1978 because he was unable to perform even simple welding tasks at that time. (Tr. 269) Also, Dr. Leonard testified without objection as to his understanding of how an affliction such as that complained of by plaintiff could adversely affect his ability to weld. (Tr. 311-312)

Defendants argue that the only evidence of plaintiff’s pain and suffering, numbness, and permanent disability from the numbness is the “subjective” testimony of the plaintiff. The numbness of which plaintiff complains is not provable by objective medical tests. However, neither doctor who testified found that plaintiff’s complaints of numbness were inconsistent with his injury. Furthermore, medical testimony is not necessary to prove pain and suffering or disability. Lay testimony is always admissible to prove that which the witness knows about and about which he is legally capable of testifying. Leavitt v. St. Tammany Parish Hospital, 396 So.2d 406 (La. App. 1st Cir. 1981); Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir. 1979), writ refused, 380 So.2d 102 (La.1980); Arthur v. McConnell, 286 So.2d 499 (La.App. 2nd Cir. 1973). The testimonies of the welders, of plaintiff’s former employer, and of Dr. Leonard adequately corroborate plaintiff’s claim of disability to perform as a welder.

Defendants make much of the evidence educed at trial that tended to show that plaintiff retained the use and strength of his left arm. However, plaintiff complained not of the lack of strength, but of the lack of sensitivity and feeling in his left arm which his work required. Under these circumstances, we feel that the jury had sufficient evidence before it to find that plaintiff was permanently disabled as a welder.

Defendants contend further that plaintiff did not prove damages in the amount awarded by the jury. Defendants specifically complain that plaintiff did not show his inability to work at other jobs and he did not introduce evidence to sustain his claim for medical damages.

The testimony of the welders established that pipe welders with their own equipment (which plaintiff had at the time of his injury) made $25.00 per hour at the time of the trial. Plaintiff in his brief before this court provides a competent defense of the jury’s verdict based on this fact, as follows:

“The defendants have urged that plaintiff’s damages should be reduced based on the fact he could find another type of employment. However, plaintiff went to work as a welder’s helper when his education terminated in the eighth grade. He has no formal training in any other trade (Tr. 181). Simple computations will show that the jury could have returned a much higher award and still be within their discretion. Without education or formal training, plaintiff would likely be limited to a minimum wage job, or approximately Three Dollars and Sixty Cents ($3.60) per hour. For the purposes of simplicity, this is about twenty ($20.00) Dollars per hour less than he could make as a certified pipe welder. Assuming the plaintiff worked only six (6) months out of the year, the following figures became apparent. This would be a loss of One Hundred Sixty ($160.00) Dollars a day, based on eight hours a day. On a five day week, this would be a loss of Eight Hundred ($800.00) Dollars per week. Based on six (6) months or twenty-four (24) weeks, this would be approximately Nineteen Thousand Two Hundred ($19,200.00) Dollars lost wages per year.”

Based on the fact that plaintiff was 28 years old at the time of the trial, the general jury award of $125,000 to compensate the plaintiff for pain and suffering and future loss of earning capacity does not appear to be an abuse of the jury’s discretion, even eliminating plaintiff’s special claim of medical damages for lack of proof.

Therefore, we affirm the judgment of the trial court.

AFFIRMED.

      . Article 2320 states:
      “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
      “Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
      “In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.”

      . When the case was previously before us on the issue of the directed verdict, 373 So.2d 237, we gained the impression from the evidence in that case that the altercation took place outside of lounge premises. We understood that Reaux invited Campbell outside and the stabbing occurred there. The evidence in the new trial after the remand indicates that the fight took place inside the lounge or bar and followed immediately or soon after the quelling of the fight between the other parties.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Roy HRYHORCHUK, Plaintiff-Appellee, v. Roy M. SMITH, et al., Defendants-Appellants.
    No. 8733.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.
    Thomas Halligan, William J. Doran, Baton Rouge, for defendant-appellant.
    Robert Thomas, Lake Charles, for plaintiff-appellee-appellant.
    Plauche, Smith, Hebert & Nieset, Reid Hebert, Stockwell & Associates, John S. Bradford, David Frohn, Woodley, Barnett, Cox, Williams & Fenet, Terry Thibodeaux, J.Michael Veron of Scofield & Associates, Alvin King, Lake Charles, Raymond M. Allen, Lafayette, H. O. Lestage, De Redder, for defendant-appellee.
    John L. Van Norman, Lake Charles, for intervenor-appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

The above numbered and entitled matter is consolidated with a companion suit entitled Roy Hryhorchuk versus Calcasieu Parish Police Jury, et a1, 390 So.2d 497. We this day render a separate decree in the matter last referred to.

These consolidated matters are on appeal to this court following further trial in the district court on remand from the Louisiana Supreme Court. We here refer to our original opinion in these consolidated cases, which is reported at 379 So.2d 281 (La.App. 3rd Cir. 1979) and to the Supreme Court opinion, following grant of writ applications, which is reported at 390 So.2d 497 (La.1980) for a complete history of this litigation, including an analysis of the facts and the Supreme Court’s conclusions on the issues presented on appeal. The Supreme Court judgment, reported as aforestated, decreed as follows:

“For the foregoing reasons, the judgment of the Court of Appeal is affirmed in favor of the Calcasieu Parish Police Jury and the Calcasieu Parish Sheriff’s Department and their insurers. The judgment of the Court of Appeal is reversed insofar as it affirmed the directed verdicts in favor of the State of Louisiana, Through the Department of Public Safety, and the State of Louisiana, Through the Department of Transportation and Development. The judgment of the Court of Appeal reducing the quantum of damages is vacated and set aside. The judgment of the trial court in favor of plaintiff against Smith and Clifton and their insurers is affirmed but it is ordered that there be further trial on the issue of the liability of the State of Louisiana. The question of the liability of State Farm in its capacity as Hryhorchuk’s uninsured motorist carrier remains open pending further disposition in the trial court.” (footnote omitted)

Pursuant to the Supreme Court’s decree a further trial was held in the district court resulting in a judgment in favor of Roy Hryhorchuk and against the defendants, Roy M. Smith, William Clifton, State Farm Mutual Automobile Insurance Company, Pennsylvania General Insurance Company and the State of Louisiana, insólido in the sum of $627,389.24 together with legal interest from date of demand until paid and for all costs. The judgment rendered by the trial court as aforesaid limited the liability of the insurers to the limits of their respective policies and granted State Farm Mutual Automobile Insurance Company a right of reimbursement from Roy Hryhor-chuk for any amount which he might recover from any of the other defendants and recognized the intervention of Lawanda Hryhorchuk to the extent of $34,360.10. The trial court judgment further ordered a dismissal of plaintiff’s demands against the Department of Public Safety and its insurer, Travelers Insurance Company, and the Department of Transportation and Development. The State of Louisiana has appealed from this latter judgment. The other defendants have not appealed nor did plaintiff answer the appeal of the State of Louisiana, however, plaintiff-appellee has filed a motion seeking dismissal of the appeal of the defendant-appellant, State of Louisiana. We will first consider this motion.

MOTION TO DISMISS

The plaintiff-appellee, Roy Hryhorchuk, moves to dismiss the appeal of the defendant-appellant, State of Louisiana. The motion is based on the contention that the issue on appeal, the state’s liability to Hry-horchuk for damages allegedly caused in part by negligence of a parish ward constable, was previously adjudicated and determined by a non-appealable final judgment.

The case is before this court on a devolu-tive appeal from a district court judgment following a remand by our Supreme Court. At the first'trial the district court sustained motions under LSA-C.C.P. art. 1810(B), for dismissal of the plaintiff’s case against the State of Louisiana, through the Department of Public Safety and Department of Transportation, and also other defendants. The trial proceeded with respect to the remaining defendants who were found to be liable to the plaintiff and were so east in a judgment for damages. One of these was Constable Roy Smith.

On appeal, this court in Hryhorchuk v. Smith, 379 So.2d 281 (La.App. 3rd Cir. 1979), reduced the damages awarded, but affirmed the liability holdings. The Supreme Court granted writs and reversed the C.C.P. 1810(B) motion of the State and also the reduction of the award. Its decree remanded the case to the district court for further trial on the issue of the liability of the State. 390 So.2d 497 (La.1980).

On remand the district court rendered judgment in favor of the plaintiff Hryhor-chuk against the State and the latter has appealed.

Plaintiff-appellee has filed this motion to dismiss, contending that the decision of the Supreme Court was a final judgment as to the liability of the State for the acts of Constable Roy Smith. His argument is based upon the following language in that court’s decision in Hryhorchuk:

When a constable is acting in his capacity as a public officer, the State of Louisiana is liable for a tort resulting from his negligent performance of an official duty. Constable Smith was at the scene of this accident in discharge of the duties of his office. Therefore, the State of Louisiana is liable for the negligence of Smith in the course of his employment. Foster v. Hampton, 381 So.2d 789 (La.1980)."

This statement by the Supreme Court is, of course, correct, but it is not the complete holding of the court. It was made in the context of deciding whether or not the State is legally responsible for negligent conduct of a constable, in order to rule on the State’s motion for a directed verdict at the close of the plaintiff’s evidence. The language certainly does not mean that the Supreme Court was rendering a final judgment on the merits of the issue of the State’s liability to the plaintiff, because no evidence had been presented by the State regarding Constable Smith’s negligence vel non and that issue had not been fully adjudicated between the plaintiff and the State.

Furthermore, reasons expressed by a court in its opinion are separate and distinct from and form no part of the decree, which is the definitive judgment. Petty Realty Co. v. Continental Cas. Co., 47 So.2d 446 (La.App. 2nd Cir. 1950). Therefore, only the decree itself constitutes the appellate judgment. The Supreme Court expressly said in its decree:

“The judgment of the trial court in favor of plaintiff against Smith and Clifton and their insurers is affirmed but it is ordered that there be further trial on the issue of the liability of the State of Louisiana.” (Emphasis added.)

It is clear to us that the judgment did not decide the issue of the State’s liability, but merely remanded the case to complete the trial of plaintiff’s alleged cause of action against the State of Louisiana.

For the above and foregoing reasons, the motion to dismiss is denied.

MERITS

Appellant principally contends on appeal that the evidence presented at the trial of this matter following remand, produced a set of facts significantly different from those presented at the previous trial. Appellant argues that this new evidence reflects error in the previous conclusions reached by the several courts as to the negligence of Smith; the lack of negligence on the part of Hryhorchuk; and this court’s conclusion that at the time of the accident Smith was neither the employee or agent of the Department of Public Safety and the Department of Transportation and Development. In this same vein, the State of Louisiana argues that the learned trial judge did not give proper weight to this new evidence but merely accepted the facts as found by the several courts following the initial trial.

We find no merit in appellant’s contention. The trial judge, in his written reasons for judgment, makes clear that he felt constrained to make a further finding on the issues of fact initially found in order that a judgment might be properly rendered insofar as the State of Louisiana, the Department of Public Safety and its insurer, and the Department of Transportation and Development are concerned. The trial court then made clear that the evidence adduced at the second trial was not such as to warrant any change in the determined facts surrounding the accident or in the conclusions of law' based upon such facts. Our careful review of the evidence adduced at the second trial prompts the same conclusion.

In sum, for the reasons previously assigned by us and reported at 379 So.2d 281 and in conformity with the decision of the Louisiana Supreme Court reported at 390 So.2d 497, we conclude that on the occasion in question Smith was not acting as an agent or employee of the Department of Public Safety or the Department of Transportation and Development; that he was acting in his capacity as a public officer of the State of Louisiana; that his actions on the occasion in question were negligent and caused Hryhorchuk’s injuries; and, that Hryhorchuk was not guilty of any contributory negligence. Accordingly, the trial court judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

      . It is observed that the Supreme Court in its decision reported at 390 So.2d 497 pretermitted consideration of whether Smith was acting as agent of the two departments and reversed the judgment of this court insofar as it affirmed the directed verdicts in favor of those departments.


text:
    Roy HRYHORCHUK, Plaintiff-Appellee, v. CALCASIEU PARISH POLICE JURY, et al., Defendants-Appellees-Appellants.
    No. 8734.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.
    Thomas Halligan, William J. Doran, Baton Rouge, for defendant-appellant.
    Robert Thomas, Lake Charles, for plaintiff-appellee-appellant.
    Plauche, Smith, Hebert & Nieset, Reid Hebert, Stockwell & Associates, John S. Bradford, David Frihn, Woodley, Barnett, Cox, Williams & Fenet, Terry Thibodeaux, J. Michael Veron of Scofield & Associates, Alvin King, Lake Charles, Raymond M. Allen, Lafayette, H. O. Lestage,. De Redder, for defendant-appellee.
    John L. Van Norman, Lake Charles, for intervenor-appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

For the reasons assigned in' the companion matter entitled Roy Hryhorchuk versus Calcasieu Parish Police Jury, et al., 390 So.2d 497, our docket number 8733, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


author: LABORDE, Judge.

text:
    Nell Rose GIDDINGS, Plaintiff-Appellee, v. Edward Lee GIDDINGS, Defendant-Appellant.
    No. 8741.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Lyman S. Gore of Gore & Shields, Vida-lia, for defendant-appellant.
    Marilyn Castle, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

Edward Lee Giddings appeals an adverse judgment in favor of his former wife, Nell Rose Giddings, awarding her past due child support in the amount of $2,100. Appellant urges the trial court erred in 1) awarding Nell past due support after the litigants had allegedly entered into a stipulated judgment, and 2) failing to credit him for payments made under the original judgment awarding child support.

Finding the trial judge’s ruling supported by the record, we hold that the trial judge was correct in making the award to appel-lee. We amend the award to add attorney fees, and affirm as amended.

The litigants were divorced by judgment of court dated December 17, 1975, which ordered Edward to pay $300 per month for support of his minor children.

All parties agreed and the trial court found that Edward failed to pay child support for a period of seven (7) months, from October, 1979, through April, 1980. Accordingly, judgment was granted in favor of Nell in the amount of $2,100 plus interest at the rate of ten (10%) percent from date of demand until paid. Nell’s request for attorney’s fees was denied.

Edward appeals. Nell answered the appeal requesting affirmance and attorney’s fees.

Edward does not deny he failed to pay support for the period in question. However, he contends that the judgment of December 17,1975, was modified by stipulation in a criminal non-support hearing held October 16, 1980. The entire non-support transcript was as follows:

“Court met this date pursuant to adjournment with the Honorable Lucien C. Bertrand, Jr., Judge presiding; Sally Lane, Deputy Clerk of Court; Diana Simon, Special Assistant District Attorney; Barbara Hebert, Secretary to the District Attorney; Gerald Faul and Charles Bordelon, Child Support Enforcement Officers; Joe DiCarlo and Paul Pitt, Deputy Sheriffs all being in attendance.
STATE OF LOUISIANA ) NON-SUPPORT
VS ) The accused was
EDWARD LEE GIDDINGS ) present in open Court, represented by Lyman Gore. This matter previously set for trial this date is now being taken up. The State presented evidence and testimony to the Court by calling Nell Giddings, petitioner, who after being duly sworn by the Clerk presented testimony to the Court. The State then called Edward Giddings, who after being duly sworn by the Clerk presented testimony to the Court. The Defense then offered to file and introduce into evidence Defense Exhibit #1 (W-2 Wage and Tax Statement of 1979), to which the State had no objection and the Court will so allow. After a brief discussion between the State and the Defense, the State stated that the defendant has entered into a 14:75 Oral Agreement, whereby he will pay $300.00 per month for the support of his 2 minor children until the oldest child, Sandra, reaches the age of 18, at which time payments will be reduced to $200.00 per month until the youngest child, Monica, reaches the age of 18 and then payments will be terminated. The agreement was then made an order of the Court.”

Since the non-support hearing was held in October of 1980, and Edward was already in arrears for failure to pay support for the period from October 1979 through April 1980, we find no merit to his contention. In our view the non-support agreement only re-affirmed Edward’s obligation under the December 17, 1975, child support judgment. Certainly the trial judge in the October, 1980, criminal non-support hearing had no authority to alter the December 17, 1975, judgment.

Edward next contends that he was not given credit at the rate of $25.00 per week for each child for each week of visitation with him as provided in the December 17, 1975, judgment. Edward, who was present, did not testify at trial. The only testimony of the children spending time outside the immediate custody of the mother was Nell’s. She testified that her daughter had visited her older daughter during the summer. No evidence was introduced showing the children ever spent any time with Edward, therefore, he failed to show that any credit was ever earned.

Conclusions and findings of fact reached by the trial court should be given great weight and they will not be disturbed absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We conclude that the findings of the trial court are clearly correct.

Nell answered the appeal seeking attorney’s fees, citing LSA-R.S. 9:305 which provides:

§ 305. Attorney fees in alimony and child support proceedings
When the court renders judgment in an action to make past due alimony or child support executory, except for good cause, the court shall award attorney fees and court costs to the prevailing party.

Since Edward failed to testify or failed to offer any reasonable explanation why he was in arrears when Nell filed her motion, Nell is entitled to a reasonable attorney fee. We fix the fee at $500.00. Thompson v. Courville, 372 So.2d 579 (La.App. 3rd Cir. 1979).

For the above and foregoing reasons the judgment of the trial court is amended to award $500.00 in attorney’s fees to Nell Rose Giddings and as amended it is affirmed. All costs to be paid by Edward Lee Giddings.

AMENDED AND AFFIRMED AS AMENDED.


author: FORET, Judge.

text:
    L. Russell KEENE, II, Plaintiff-Appellee, v. Warren S. WILLIAMS, et al, Defendants-Appellants.
    No. 8746.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.

      Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, Camp, Carmouche, Palmer, Barsh & Hunter, A. J. Gray, III, Stockwell & Associates, Oliver P. Stockwell, Lake Charles, for defendants-appellants.
    Anderson, Anderson, Steffes & Hawsey, L. E. Hawsey, III, Baton Rouge, and William Ledbetter, Bossier City, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

L. Russell Keene, II (Plaintiff), brought this action to have a certain sale of immovable property rescinded and set aside, and for specific i>erformance of a contract granting him a right of first refusal on that property. Defendants are First Federal Savings & Loan Association of Alexandria (First Federal), the owner and vendor of the property, and the purchasers of the property, the Bayou Partnership and its individual partners, Warren S. Williams (Williams), F. William Johnson, Jr. (F. Johnson), Edward B. Wilkey (Wilkey), James Woodard Johnson (J. Johnson), and James Robert Adams (Adams).

The trial court, after trial, rendered judgment in favor of plaintiff ordering the sale entered into between defendants rescinded and set aside. The judgment further ordered First Federal to convey the ownership of the projjerty to plaintiff on the same terms and conditions as those contained in the sale between it and the other defendants.

Defendants appeal suspensively and de-volutively from the trial court’s judgment and raise the following issues:

(1) Whether the trial court committed manifest error in finding that plaintiff had acquired a valid right of first refusal from First Federal;
(2) Whether the trial court committed manifest error in finding plaintiff to be entitled to the remedy of specific performance;
(3) Whether defendants, who purchased the property, were entitled to rely on the “public records doctrine”.

FACTS

The property in question consists of an apartment complex named the “Bayou Wood Villa Apartments”, located near Sul-phur in Calcasieu Parish, and the land on which it was built. First Federal financed construction of the complex by means of a loan of $850,000 made to Joe E. Schaeffer (Schaeffer) and Wilbert R. Wilder (Wilder), the original owners and developers of the property. Schaeffer and Wilder defaulted on the loan shortly after construction was completed and they executed an assignment of the rents and revenues to First Federal in March, 1975. The property was then placed under the supervision of Henry C. Voorhies, III (Voorhies), one of First Federal’s vice presidents, who employed Darrell Felds of Pacemaker Realty to manage it.

Plaintiff learned of the financial problems associated with the property and began negotiating with Voorhies for its purchase. First Federal attempted to arrange a sale from the owners to plaintiff, but problems developed regarding title to the property and the sale was never completed. First Federal then brought an action for a declaratory judgment in an effort to cure the defects in title. However, before that action was tried, First Federal brought an action to enforce its mortgage by executory process, and the property was subsequently seized and sold to it at a sheriff’s sale.

First Federal and plaintiff had entered into an agreement on November 4, 1975, in which it granted plaintiff a right of first refusal to purchase the property should foreclosure become necessary. After the sheriff’s sale, First Federal notified plaintiff that it would be actively soliciting bids for the purchase of the property. It placed advertisements in several newspapers around the State setting May 10, 1976, as the deadline for submitting such bids, but later rejected all bids received.

It was during this period of time that First Federal began negotiations with Adams for the purchase of the property by Bayou Partnership, on whose behalf he was acting. An agreement to purchase and sell was entered into by Adams and First Federal on June 4, 1976. Voorhies notified plaintiff on June 7, 1976 of this agreement by handing plaintiff a letter with the agreement attached thereto. The letter stated that plaintiff would have until June 14, 1976 to exercise his right of first refusal. An attorney representing First Federal extended that deadline by one day. Plaintiff was unable to exercise his right of first refusal within that time period, and notified First Federal that he would decide whether to do so by 5:00 P.M. on June 23, 1976. First Federal refused to allow plaintiff this extra time within which to make his decision, and sold the property to Bayou Partnership on June 21, 1976.

Plaintiff instituted this action on August 5, 1976, alleging that variations existed between the terms and conditions for the purchase of the property by him, contained in the letter delivered to him by Voorhies, and those contained in the agreement to purchase and sell executed by Voorhies and Adams. He further alleged that First Federal had acted unreasonably in allowing him just seven days, including one weekend, to: obtain a clarification of the terms and conditions under which the property was being offered for sale to him; obtain financing for the purchase; and, to determine the condition of the property at that time.

Several defendants filed exceptions that were either cured by actions of the plaintiff, or overruled by the trial court. Defendants’ answers contained various allegations concerning the validity of any agreement entered into by plaintiff and First Federal purportedly granting him a right of first refusal on the property, and that any such agreement could be avoided on the basis of the public records doctrine. Defendants also alleged that plaintiff had failed to timely and/or effectively accept any offers to sell the property made to him. Finally, several defendants filed a motion for summary judgment that was denied by the trial court.

VALIDITY OF PLAINTIFF’S RIGHT OF FIRST REFUSAL

Defendants contend that the trial court committed manifest error in finding that plaintiff had acquired a valid right of first refusal from First Federal. They argue that the agreement entered into by plaintiff and Voorhies on November 4,1975, fails to state the price at which the property would be offered for sale to him, if First Federal decided to sell it. That agreement provides the following with respect to plaintiff’s right of first refusal:

“5. If First Federal forecloses on the Bayou Wood Villa project. Mr. Keene will have the right of first refusal on purchasing and financing the project with First Federal.”

Defendants rely on the provisions of LSA-C.C. Articles 2462 and 2464, arguing that these articles require that the price of an option or right of first refusal agreement be fixed, certain and determined by the parties. However, Crawford v. Deshotels, 359 So.2d 118 (La.1978), found that there were differences between an option and a right of first refusal, and that the provisions of LSA-C.C. Article 2462 were inapplicable to situations involving such a right. Crawford stated, on page 122, that:

“The article and the jurisprudence on which relator relies, however, are not applicable here, for there is not here following “the purchase of such option” — or in this case entry of the contract — a continuing right or option to accept (or reject) an extant offer or promise to sell — as contemplated by Article 2462. Rather there is here what is more commonly described as a right of first refusal, or as the contract says, a right to be afforded a “first chance to buy” at a price equal to any bona fide offer which McDaniel should receive and be interested in accepting.” (emphasis ours)

LSA-C.C. Article 2464 is also inapplicable to agreements involving a right of first refusal as that article deals specifically with the element of price in contracts of sale. Thus, we find no merit to defendants’ contention.

As was noted in Crawford, the common meaning of a right of first refusal is that the holder of the right will be afforded a first chance to buy the property, on which the right was granted, at a price equal to any bona fide offer which the grantor of the right should receive and be interested in accepting for that property.

Defendants make much of the fact that Voorhies sent plaintiff a letter on February 13, 1976, in which he stated that plaintiff would be given a copy of the highest bona fide bid and given, “. . . the opportunity to exceed the amount or cancel your right of ‘first refusal’ ”. They argue that this shows that there was no meeting of the minds between Voorhies and plaintiff as to what the agreement entailed. However, both plaintiff and Voorhies testified that it was their understanding that under the right of first refusal all plaintiff had to do was wait until a bona fide offer, acceptable to First Federal, was made by a third party, and then announce whether he would go ahead and exercise his right by matching that offer or decline to do so.

Plaintiff introduced in evidence a letter dated June 7, 1976, addressed to him and signed by Voorhies. That letter acknowledges the existence of plaintiff’s right of first refusal, and offers to sell him the property under the identical price, terms and conditions as stated in the agreement to buy and sell executed by Adams and First Federal. The agreement to buy and sell itself contains a provision recognizing the existence of plaintiff’s right of first refusal. Finally, the minutes of a meeting of the Board of Directors for First Federal held on June 4, 1976, shows that the Board recognized the right of first refusal given plaintiff and that he should be allowed time to match the offer made by Adams.

The trial court’s finding that a valid right of first refusal had been granted plaintiff by First Federal is not clearly wrong. We find that defendants’ contention that the letter of June 7, 1976 contained a new offer to sell made to plaintiff, independent of the right of first refusal granted to him, is without merit. Thus, there is no need for any discussion of defendants’ arguments concerning the law of “offer and acceptance”.

PLAINTIFF’S RIGHT TO SPECIFIC PERFORMANCE OF THE RIGHT OF FIRST REFUSAL

Defendants contend that the trial court committed manifest error in granting plaintiff specific performance of his right of first refusal because he had given First Federal $3,000 at the time the agreement granting him the right was executed. They argue that this deposit was earnest money giving either party the liberty to recede from the agreement under the provisions of LSA-C.C. Article 2463.

A review of the pleadings filed by defendants shows that they failed to raise this issue therein, and that the trial court was neither asked to make, nor made, any finding regarding this issue. Ordinarily, we will review only those issues submitted to the trial court. However, in the interest of justice, we will exercise the authority given us by LSA-C.C.P. Article 2164 and decide this issue.

LSA-C.C. Article 2463 provides:

“Art. 2463. Earnest money, effect
Art. 2463. But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to wit: he who has given the earnest, by forfeiting it; and he who has received it, by returning the double.”

We find that LSA-C.C. Article 2463 is inapplicable to a unilateral contract such as the one granting plaintiff a right of first refusal. The article, by its very terms (“each of the contracting parties”), appears to contemplate situations involving a bilateral contract to sell and purchase.

An argument, similar to that made by defendants, was rejected by this Court in Edco Properties v. Landry, 371 So.2d 1367 (La.App. 3 Cir. 1979), writ denied, 375 So.2d 945 (La.1979). Edco involved a lease-option agreement which provided that the monthly lease payments made by Edco Properties were to be applied to the sale price, if it exercised its option to buy the immovable property from Landry. Edco Properties decided to exercise its option, but Landry refused to sell the property to it. The trial court ordered Landry to convey the property to Edco Properties under the terms contained in the lease-option agreement, and Landry appealed. In this Court, Landry argued that the monthly lease payments constituted earnest money, under LSA-C.C. Article 2463, allowing either party to recede from the agreement.

Edco noted the following observations made in Moresi v. Burleigh, 170 La. 270, 127 So. 624 (1930), found at 127 So. 627:

“ ‘In an option contract, the optionee acquires no rights in the land or the subject-matter optioned. There is no transfer of title. It is simply a contract by which the owner grants the optionee the right to purchase the thing at a fixed price and within a fixed time. Davis v. Roseberry, 95 Kan. 411, 148 P. 629, 3 A.L.R. 566; Ide v. Leiser, 10 Mont. 5, 24 P. 695, 24 Am.St.Rep. 17.
‘The option is a contract preliminary to an agreement to purchase. When exercised it ceases to exist, a new contract arising, which is enforceable against either party. There is no provision for the giving of earnest money with an option. The right acquired by an optionee is an unqualified right to purchase if he so elect. He can release himself without a forfeit by simply failing to exercise the right acquired.’ ” (emphasis ours)

Edco then stated, on page 1370 that:

“..., it is clearly inconsistent with the nature of an option agreement to presume that — in the absence of an express stipulation to the contrary — the parties to the contract intend for the price paid for the option to represent a relinquishment of the option holder’s right to specific performance, and a reservation of the option grantor’s right to recede from the contract. A party who secures an option to buy is merely securing the right to compel the grantor to sell at his (the option holder’s) discretion. If the consideration paid for such an option was to be presumed to give the grantor the right to refuse to sell, the option would serve no legal function.” (citations omitted)

This reasoning applies with equal force to situations involving the right of first refusal. The right of first refusal would serve no legal function, if it were presumed that the consideration paid for that right gave the grantor the ability to withdraw from the agreement and sell the property to a third party.

It is our opinion that LSA-C.C. Article 2463 does not apply to an agreement granting a right of first refusal in the absence of an express stipulation that the consideration therefor is intended to represent earnest money. There was no such stipulation in the agreement entered into by plaintiff and First Federal.

Specific performance of a right of first refusal was allowed in both Crawford, supra, and Price v. Town of Ruston, 171 La. 985, 132 So. 653 (1931), where the latter court stated at 132 So. page 656 that:

“Article 1926 gives the obligee the option, in case of a breach of contract, either to sue for damages or to sue for specific performance if the case is one which admits of specific performance. Article 1927 declares that ordinarily a breach of contract entitles the party aggrieved to an action only for damages, but that, where damages would not be adequate compensation, and the party breaching the contract has the power to perform it, he may be constrained to a specific performance. There is nothing in these articles of the Code to deprive the plaintiffs of a right of action for specific performance of the contract in question. An action for damages would not be appropriate, because it would be impossible to calculate the amount of damages that would compensate the plaintiffs for a breach of the contract. But, as a matter of fact, the plaintiffs are not complaining of a breach of the contract. They are merely trying to avail themselves of a right given to them by the contract.”

There is no merit to defendants’ contention that the remedy of specific performance is unavailable to plaintiff because the property was sold to a third party. Price granted specific performance to plaintiffs therein where the immovable property, the top floor of a building, had been sold at a sheriff’s sale to a third party. Here, the trial court found that the remedy of damages would be inadequate and that First Federal could still comply with its contract with plaintiff. We agree.

BAYOU PARTNERSHIP’S ALLEGED RELIANCE ON THE “PUBLIC RECORDS DOCTRINE”

Defendants allege that Bayou Partnership was entitled to rely on the “Public Records Doctrine” in purchasing the property from First Federal. We agree. However, we fail to see how this benefits defendants in any manner. The evidence clearly shows that the agreement granting plaintiff a right of first refusal was properly recorded in the • conveyance records of Calcasieu Parish on January 21, 1976, some five months before Bayou Partnership attempted to purchase the property. Defendants admit this in their brief. There is no merit to defendants’ contention.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against defendants-appellants.

AFFIRMED.

      . Plaintiff, in his petition, also attempted to set forth a cause of action for monetary damages and an accounting of the revenues produced by the property. However, pursuant to an agreement between all parties involved in this litigation, the trial court dismissed these claims without prejudice.

      . Rule IX-A of the Uniform Rules — Court of Appeal provides:
      “RULE IX-A. SCOPE OF REVIEW
      The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by Art. 5, § 10(B) of the Louisiana Constitution of 1974 and Article 2164 of the Louisiana Code of Civil Procedure. Ordinarily, however, the Courts of Appeal will review only issues which were submitted to the trial court and which are contained in the specification of errors in the briefs or in an application for writs, unless the interest of justice clearly requires otherwise. Adopted, effective Dec. 1, 1977.”


author: STOKER, Judge.

text:
    Deborah Kaye HARDY, et al., Plaintiff-Appellants-Appellees, v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, et al., Defendants-Appellees-Appellants.
    No. 8662.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 1982.
    Writ Denied May 7, 1982.
    William Doran, Jr., Baton Rouge, for defendants-appellees-appellants.
    Troy E. Bain, Shreveport, for plaintiffs-appellants-appellees.
    William P. Crews, Jr., Natchitoches, for defendants-appellants.
    Bolen & Erwin, James A. Bolen, Jr., Alexandria, Robert L. Salim, Brittain & Williams, Jack O. Brittain, Whitehead & McCoy, Charles R. Whitehead, Jr., Natchi-toches, for defendant-appellee.
    Thomas & Dunahoe, Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This is a suit for damages brought on behalf of James Donald Campbell resulting from personal injury sustained by him in which his wife Shirley Campbell seeks to be compensated for “mental anguish and the adverse effect on her life caused by the injuries to her husband.” The case was heard in the district court in a consolidated trial of cases. After judgment was rendered in the trial court, all cases other than this, the Campbell case, were appealed to this court, the main opinion being reported at 404 So.2d 981 (La.App. 3rd Cir. 1981), writs denied, 407 So.2d 741 (La.1981) on December 14, 1981.

In the trial court all plaintiffs prevailed. Sole liability was imposed on the State through the Department of Transportation and Development. The trial court did not find liability on the part of the City of Natchitoches and its insurer, Hartford Accident and Indemnity Company. We affirmed as to the State and reversed as to the City and Hartford and cast them in solido with the State. As noted in footnote 1 of our opinion in this case, Hardy v. State, Through Dept. of Highways, supra, (404 So.2d 981 at 983), the claim of James D. Campbell and Shirley Campbell did not come up on appeal. The Campbell case was held open for additional evidence relating to Mr. Campbell’s physical and medical condition. After this case of the Campbells was completed, the trial court rendered judgment in favor of the City of Natchi-toches (without mention of Hartford) denying the demands of both Mr. Campbell and Mrs. Campbell. Judgment was rendered in favor of James D. Campbell (through Shirley D. Campbell as his provisional curator) against the State. All claims of Shirley D. Campbell were rejected. The workmen’s compensation claims of Liberty Mutual Insurance Company paid or due to be paid to James D. Campbell were recognized and judgment was rendered in its favor against the State.

APPEALS

This appeal brings up appeals by Shirley D. Campbell (devolutive) and by the State (suspensive). The State specifies only one error: that the court awarded an excessive amount of damages in favor of James D. Campbell. Shirley D. Campbell specifies two errors of the trial court: (1) that the trial court erred in failing to find that the City of Natchitoches had been negligent (and therefore liable to plaintiffs) and (2) the trial court erred in failing to award damages to Shirley D. Campbell for her mental anguish and the devastation of her life.

LIABILITY OF THE CITY OF NATCHITOCHES

For the reasons stated in our opinion in 404 So.2d 981, that portion of the district court’s judgment which absolved the City of Natchitoches was error. The City should be cast in judgment in the same manner as in the other cases already decided.

QUANTUM OF THE AWARD TO JAMES D. CAMPBELL

The trial court awarded damages in favor of James D. Campbell in the total amount of $5,251,089.85 consisting of the following: Medical expenses through

March 17,1981 $ 303,892.61
Future medical expenses 2,568,651.35
Lost wages 55,574.63
Future lost wages 822,971.26
Pain, suffering and disability 1,500,000.00
TOTAL $5,251,089.85

The State and the City do not complain in their briefs or arguments before us.on the awards accrued at the time of trial for medical expenses in the amount of $303,-892.61 or for lost wages in the amount of $55,574.63. The State’s brief, which the City adopts, concentrates its principal attack on the awards for future loss of wages of $822,971.26, for future medical expenses of $2,568,651.35 and the award for general damages of $1,500,000.00. We will confine our review to these last three items of damage.

Damages for Pain, Suffering and Disability.

At the time of his accident Mr. Campbell was 39 years of age. He was married and had a family consisting of two sons who were 15 and 18 years of age. He worked as an automobile salesman for the Natchitoch-es Motor Company. He suffered a brain stem injury which makes him completely helpless physically, probably affects his mental capacity, causes him to suffer pain from muscle spasms, and affects some of his vital functions.

Initially a tracheotomy had to be performed to assist Mr. Campbell in breathing.

He was taken to the Schumpert Hospital in Shreveport on June 18, 1979, the date of the accident. He remained in intensive care for some 43 days during which time he was unconscious.

On September 4, 1979, Mr. Campbell was discharged to Memorial Hospital in Houston for the purpose of undergoing rehabilitation. He remained in Houston from September 4,1979, until February 15,1980. He returned to his home in Provincal, Louisiana, on February 16, and remained there until August 19,1980. During this period he showed some improvement but his condition worsened in August 1980. He then was returned to Houston on August 19, where he stayed until September 6, 1980. He was at home for three days from September 9 to 10, 1980, and was then returned to Schum-pert Hospital where he remained from September 10,1980, until January 21,1981. He has been at home since January 21, 1981.

Presently, the prognosis for the future is that there will be no improvement in his present condition. Perhaps the most discouraging and disturbing thing concerning Mr. Campbell’s condition is that, although his brain stem injury has rendered him physically helpless, it has apparently not significantly disturbed his ability to see, hear, and understand. He engages in a little or no communication. Occasionally he makes one word responses to questions. He never initiates any conversation.

Mr. Campbell occupies a wheel chair for less than two hours a day but cannot be left alone in a wheel chair as he may slide out of the chair. He can draw his legs up and down but cannot turn himself or change positions. Therefore, nurses are required to turn him and change positions. He cannot change from a prone position to a sitting position. He must be fed by a tube. He cannot assist in any functions such as shaving, brushing his teeth or bathing. He cannot even drink water by himself. He must be fed by a syringe. He has no control over his bladder or bowels. He wears an external catheter for urination and he receives a tap water enema every other day to stimulate his bowels.

During the periods that Mr. Campbell underwent treatment for rehabilitation in Houston he appeared to show some slight signs of improvement. After plateauing in early November of 1979, he showed little improvement thereafter and finally slipped into what is evidently a condition of depression. His physicians and nurses consider that he simply found the mental effort to attempt to cooperate too great, the results too meager and discouraging, and he simply gave up.

That he suffers from frequent pain is evidenced by muscle spasms and other manifestations that make it plain that he is suffering such pain.

After efforts from his initial hospitalization for rehabilitation in Houston which began on September 4, 1979, until January 21, 1981, his condition may be described as having improved slightly and then having steadily regressed. As indicated above, no other improvement is expected and he has been at home under some care since January 21, 1981.

After reviewing Mr. Campbell’s residual condition and considering that he would have a life expectancy of 31.6 years, the trial court awarded him for his pain and suffering and disability the sum of $1,500,-000.00.

From the description of Mr. Campbell’s condition it is evident that no amount of money will have significant meaning for him. He may be able to understand that he is being compensated, but he can do little or nothing with a monetary award to improve his enjoyment of life or ameliorate his lifeless but painful existence. Defendants have cited cases in which claimants with injuries approaching Mr. Campbell’s have been awarded sums for their pain, suffering and disability ranging generally between $200,000.00 and $300,000.00. Trahan v. Girard Plumbing & Sprinkler Co., 299 So.2d 835 (La.App. 4th Cir. 1974), writs denied, 302 So.2d 618, 619, 620 (La.1974); Morgan v. Liberty Mutual Insurance Company, 323 So.2d 855 (La.App. 4th Cir. 1975); Carollo v. Wilson, 353 So.2d 249 (La.1977), a Louisiana Supreme Court case in which $1,000,000.00 in damages was reduced to $600,000.00, but which probably represented both general damages and loss of wages; Faulk v. Power Rig Drilling Company, 348 So.2d 219 (La. App. 3rd Cir. 1977), writ dismissed, 350 So.2d 1210 (La.1977), and Hebert v. Missouri Pacific Railroad Company, 366 So.2d 608 (La.App. 3rd Cir. 1978), writ denied, 369 So.2d 153, 155 (La.1979).

In Dupas v. City of New Orleans, 361 So.2d 911 (La.App. 4th Cir. 1978), writ refused, 364 So.2d 121 (La.1978), $50,000.00 was awarded where the plaintiff suffered little initial pain and experienced no residual pain and the court said it was “not disposed to award him (plaintiff) any amount for his alleged loss of cohabitation and companionship of his wife, because the evidence shows that his previous life style was such that he enjoyed no settled family life.” In Nichols v. Hodges, 385 So.2d 298 (La.App. 1st Cir. 1980), writ refused, 386 So.2d 355 (La.1980) a trial court award of $750,000.00 in general damages was approved for a plaintiff whose injuries left her with a permanent residual condition somewhat similar to that of Mr. Campbell.

The trial court appears to have approached this highly subjective question on the worth of plaintiff’s suffering on a daily basis. In its reasons for judgment the trial court said: “For pain, suffering and disability, Mr. Campbell can expect to live 31.6 years; if awarded $150.00 per day, he would receive $1,730,100.00. If awarded $200.00 per day, he would receive $2,306,800.00.”

We do not know whether the trial court was attempting to apply a mathematical formula or simply giving an indication of the value of $1,500,000.00 to Mr. Campbell on a daily basis given his life expectancy. In this particular situation our position is paradoxical. Mr. Campbell is suffering damages of the highest magnitude, but money damages are all that can be awarded to him and money will have little meaning to him. Nevertheless, we must discharge our prescribed duty and consider an award of money in a fair amount. It is our opinion that the trial court abused its discretion in awarding Mr. Campbell the sum of $1,500,000.00. We feel that the highest sum the trial court could have awarded him for pain, suffering and disability is $750,000.00.

Damages for Loss of Future Wages.

The trial court awarded Mr. Campbell the sum of $822,971.26 for future lost wages.

James D. Campbell was thirty nine years old when he was injured on June 18, 1979. He had been employed as a salesman for Natchitoches Motor Company since 1962, a period therefore of approximately seventeen years. His employer testified that Campbell was the best salesman and produced the highest sales volume of any salesman that had worked for him in thirty years. In 1978 Campbell earned $22,814.18. In 1979, through the date of the accident, Campbell earned $12,800.64. Campbell’s employer felt that Campbell’s earnings would grow steadily because he was continually building a core of satisfied customers who would return to him in the future.

Dr. Luvonia Casperson, who holds a PhD in Economics and is a Professor of Economics at Louisiana State University in Shreveport, projected Mr. Campbell’s future medical expenses over his life expectancy of 31.6 years and his future earnings over his work life expectancy of 23.2 years. This expert witness calculated Mr. Campbell’s lost wages from the date of the accident to March 31, 1981, to be $55,574.63. On the basis of Mr. Campbell’s 1979 earnings up to the date of his accident, Dr. Casperson estimated that Campbell’s earnings for the full year would have been $29,083.82. Based on this yearly estimate, Dr. Casperson projected Campbell’s future lost wages over the rest of his life expectancy to be $822,971.26. These amounts were awarded to Mr. Campbell by the trial court. In projecting the future wages loss, Dr. Casperson included as factors a 2.8 per cent per year increase for productivity, a 4 per cent increase per year for inflation, and a discount of 5.5 per cent per year. No specific challenge is made by defendants to these awards for lost wages and we do not find that the trial court erred in making them. The State argues that the award to Mr. Campbell is disproportionate to the amount awarded in Morgan v. Liberty Mutual Insurance Company, supra, considering Morgan’s earnings and life expectancy as compared to that of Campbell. Such comparisons are not controlling where a trier of fact has before it expert testimony reasonably justifying projections.

The State also urges that:

“. . . $822,971.26 invested at 6% per year, which is an insurable, safe type of investment, would yield over $49,000.00 per year in interest. This is more than twice the amount Campbell earned per year. Depending on how much was withdrawn from this, the amount could be compounded over the years and the principal never touched.”

After carefully considering the testimony of Dr. Casperson, we conclude that the force of the State’s argument is more apparent than real. In fact, the figure of $822,971.26 projected by Dr. Casperson contemplates and assumes that the fund will be invested. This amount actually represents a figure which, with addition of investment earnings annually, will yield the necessary funds to compensate Campbell for his lost earnings increased year by year by the inflation factor (4%) and increased productivity factor (2.8%). What the State overlooks is that the sum of $822,971.26 is actually a figure which is fair to both sides. The concept employed is designed to provide probable lost wages each year over the work life expectancy of 23.2 years but in a manner which will exhaust the fund awarded, as annually augmented by investment earnings, at the end of the 23.2 year period.

Our understanding of the methodology of Dr. Casperson may be illustrated by the following discussion. If a straight line projection were to be made of Campbell’s income at the time of his injury, ($29,083.82 as found by Dr. Casperson) multiplied by 23.2, the result would be $674,744.62. This is a figure which contains no allowance for annual inflation or increased productivity. Yet, the figure of $674,744.62 is not out of the range of Dr. Casperson’s projection of $822,971.26. When one considers that the factors for inflation and increased production would not be uniformly applied to the base wage of $29,083.82, but would be applied each year to the figure for the previous year, which itself had been increased to the extent of 6.8 per cent over the previous year, it becomes obvious that an exceptionally large figure would result. Dr. Casper-son does not suggest that such a large amount be awarded. Instead she applies a reducing factor in her discount at the rate of 5.5 per cent per year. By this means Dr. Casperson arrives at what she considers to be the present value of future wages losses.

Dr. Casperson explained the function of the 5.5 per cent annual discount factor as follows:

“Q. Now, explain what discount is and why you used the figure you used of 5.5 percent.
A. We all know if we have a dollar today that we can use it to buy goods and services. A dollar in the future is not worth as much as a dollar is today. We use discounts so that money received in the future can be used today to buy the goods and services.
In other words, if I have $100 today, I can invest that and receive a stream of income for, for example, 23 years. So that at the end of that 23 years the income . . . the principal will have been absorbed, as well as the interest.
Q. So the 5.5 percent is so that a person can take his money and put it in the bank and earn interest on it, and since he is doing that he shouldn’t get the full amount?
A. Right.
Q. And you have calculated his future lost wages over his work life expectancy using those figures?
A. Yes.
Q. And they came out to be the amount shown on PA-4 as $822,971.26, did they not?
A. Yes, sir.”

Considering the explanation of Dr. Cas-person and our understanding of the interrelationship of the factors employed (inflation, productivity, and discount) we conclude that there is no merit to the State’s conclusion that the principal of the fund of $822,971.26 will never have to be invaded because it will produce over $49,000 per year in interest.

We conclude that the trial court did not err in awarding $822,971.22 in lost wages. While triers of fact are not bound to follow the opinion testimony of expert witnesses, we feel that the trial judge was justified in relying on the testimony of Dr. Casperson as an expert economist. Her inflation factor of 4 per cent per year is far below the present rate of inflation. She stated that her production increase factor of 2.8 per year was based on general experience and the trend over the past twenty-five years. The discount factor of 5.5 is likewise a conservative figure considering interest rates at the present time. Moreover, neither the State nor the City produced expert economists to give testimony in opposition to Dr. Casperson’s. Therefore, Dr. Casper-son’s opinion evidence was the only evidence on the issue of lost wages which the trial court had before it.

Our reason for going to considerable length to explain the fallacy in the State’s argument suggesting that the award for lost wages would provide an annual fund in excess of needs, obviating the necessity of invading the principal, is not because the sum of $822,971.26 is inordinate. Numerous cases could be cited to show that this amount is not out of line, given Campbell’s life-work expectancy and earnings at the time of his injury. Our motive in dwelling on the matter to some considerable extent is for the reason that an understanding of the method and elements of the economist’s projections also apply with respect to the projection for future medical expenses, which projection was fixed by the economist at $2,568,651.35.

Damages for Loss through Future Medical Expenses.

The trial court’s award of $2,568,-651.35 for future medical expenses is based on an estimated annual cost of $110,000.00 per year. The State and the City do not complain of the use of this estimate which has support in the record in expert testimony. Dr. Casperson testified that the present value of $110,000.00 per year over Mr. Campbell’s life expectancy of 31.6 years amounted to $2,568,651.35. In making this calculation, Dr. Casperson employed a 4 per cent inflation rate for medical costs. She then discounted the medical costs at 5.5 per cent annually to obtain the present value.

In view of our discussion of the projection process employed by Dr. Casperson with reference to future lost wages, which was similarly applied with reference to future medical expenses, we find no. abuse of discretion on the part of the trial judge in awarding $2,568,651.35 as damages for future medical expenses.

We should emphasize that Dr. Casper-son’s estimate of Mr. Campbell’s expectancy of 31.6 years at age forty is, we presume, based upon experience tables for normal healthy males of that age. (Her estimate of the work life expectancy was taken from U. S. Department of Labor sources.) We have accepted a life expectancy of 31.6 years as the trial court no doubt did, inasmuch as we have found no evidence or medical opinion, and none has been pointed out to us, that Mr. Campbell’s life expectancy will be any less than that of a normal, active, healthy human male. Under the circumstances, we are of the opinion that the award should be allowed to stand to cover the full 31.6 years.

THE CLAIM OF SHIRLEY D. CAMPBELL

The trial court rejected the claim of Shirley D. Campbell for mental anguish and the effect on her own life of the tragic consequences of her husband’s injury. The trial court assigned as the reason for the rejection the settled rule in Louisiana that, except in death cases, one person may not recover damages for mental pain and anguish suffered by him merely as a result of physical injuries sustained by another person.

The issue has been before our courts many times. Recently, this court again considered the question in Lanham v. Woodward, Wight, & Co., Ltd., 386 So.2d 131 (La.App. 3rd Cir. 1980), writ denied, 392 So.2d 668 (La.1980). With Judge Laborde dissenting, the panel in Lanham adhered to the settled rule. An application for writs was denied, 392 So.2d 668 (La.1980), with Justices Calogero, Dennis and Lemmon voting to grant the writ.

Counsel for Mrs. Campbell concede that the overwhelming authority in this state is against recovery by her. Counsel even cites to us the latest cases following the settled rule from the four circuits which then existed. However, counsel also point out that three of the cases contain criticism of the rule. Counsel state to us that thirty-eight states now permit a wife to recover her damages resulting from loss of consortium. It is our appreciation of the jurisprudence-that the Louisiana Supreme Court has never allowed anyone to recover for their own damages for mental anxiety of adverse affect on their lives resulting from injury to a third person. Apparently the Courts of Appeal are following the lead of the Supreme Court. Under the circumstances we regard Louisiana’s rule to be fixed despite evident and eloquent dissatisfaction with the rule.

On behalf of Mrs. Campbell it is urged that we should look only to our Civil Code in Article 2315 and ignore the jurisprudence, thus following the lead of Holland v. Buckley, 305 So.2d 113 (La.1974). The ground under consideration has been plowed so frequently and thoroughly without any resulting change that we regard any move in that direction to be up to the Supreme Court of Louisiana or to the Legislature. For these reasons we feel constrained to follow established rule and to affirm the trial court’s ruling on this phase of the case.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed except as to its holding relative to the City of Natchitoches and the amendment relative to the damages awarded to plaintiff James D. Campbell. As to the City of Natchitoches, the judgment of the trial court is reversed and it is cast in judgment in solido with the State of Louisiana, Department of Transportation and Development, and the trial court judgment is amended accordingly. The trial court judgment is further amended to reduce the total judgment in favor of Shirley D. Campbell, as provisional curator of James D. Campbell, of $5,251,089.85 by the sum of $750,000.00, so as to award on his behalf a total of $4,501,089.85, subject to the deduction mentioned in the trial court’s judgment.

In affirming the trial court’s judgment except as indicated we also confirm that portion of the judgment which recognizes the rights of Liberty Mutual Insurance Company for the recovery of amounts paid in workmen’s compensation benefits and medical benefits and for credits against future obligations which may be incurred in favor of James D. Campbell under the workmen’s compensation law, such recovery, however, to be effective only out of such portion of plaintiff’s recovery as may be paid by the State inasmuch as no appeal was taken by Liberty Mutual Insurance Company from the trial court’s judgment rejecting all demands of the City of Natchi-toches.

AMENDED AND AFFIRMED AS AMENDED.

      . The claims of James D. Campbell and Shirley Campbell were asserted through intervention in the Hardy suit. Consequently, the case carries the same caption as the Hardy suit, i.e., Deborah Kaye Hardy v. State of Louisiana, through Department of Highways, et al. That case, reported at 404 So.2d 981, bears our number 8276, whereas this case of the Campbells bears our number 8662.

      . Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir. 1979); Pierre v. Landry, 341 So.2d 891 (La.1977); Payne v. New Orleans Public Service, 374 So.2d 189 (La.App. 4th Cir. 1979), and Gleason v. City of Shreveport, 393 So.2d 827 (La.App. 2nd Cir. 1981).

      . Dr. Cecil C. Dopson, Jr., a psychiatrist, gave the only testimony we have found concerning whether Mr. Campbell’s condition might lessen his life expectancy below what would be normal. He admitted that such a result was possible, but stopped short of even stating a probability.

      . Waldrop v. Vistron Corp., 391 So.2d 1274 (La.App. 1st Cir. 1980), writ denied, 394 So.2d 281 (La.1980); Lanham v. Woodward, Wight & Co., Ltd., supra; Brauninger v. Ducote, 381 So.2d 1246 (La.App. 4th Cir. 1979) and Parker v. St. Paul Fire & Marine Ins. Co., 335 So.2d 725 (La.App. 2nd Cir. 1976), writ refused, 338 So.2d 700 (La.1976).

      .The writer of this opinion joins those who have expressed themselves as believing that a re-examination of the rule should be made at the appropriate level.