text:
    Bobbye T. FOX et al., Plaintiffs-Appellants, v. COMMERCIAL UNION INSURANCE COMPANY et al., Defendants-Appellees.
    No. 7947.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Kramer & Laird, Bernard Kramer, Alexandria, for plaintiffs-appellants.
    Trimble, Randow, Smith & Wilson, Alonzo P. Wilson, Alexandria, and Bryant W. Conway, Baker, for defendants-appellees.
    Before CULPEPPER, FORET and SWIFT, JJ.
   FORET, Judge.

This is a wrongful death action. Bobbye T. Fox, Michael Fox, and Kim Fox Crooks (Plaintiffs) are the surviving widow and children of James R. Fox. Plaintiffs’ decedent was killed when a pickup truck driven by George M. Burns (Defendant) and insured by Commercial Union Insurance Company (Commercial) was struck by a train. Plaintiffs appeal from a summary judgment dismissing their action against Burns and Commercial. The issues on appeal are:

(1) Whether the trial court erred in granting summary judgment to Burns predicated on the exclusive remedy provisions of the Workmen’s Compensation Act.
(2) Whether the trial court erred in granting summary judgment to Commercial predicated on plaintiffs’ failure to state a cause of action against the tortfeasor.

FACTS

The undisputed facts are set forth in an affidavit by J. W. McDonald, which was filed into the record. That affidavit reads in part:

“... That he does business as J. W. MCDONALD CONTRACTOR out of Glenmora, Louisiana; that on or about August 10th, 1979 he was the employer of JAMES R. FOX and GEORGE BURNS: that the said JAMES R. FOX and GEORGE BURNS were working on a road construction project south of Lake Charles, Louisiana in Cameron Parish, Louisiana prior to and on August 10th, 1979; that the employment agreement between J. W. McDONALD d/b/a J.W. MCDONALD CONTRACTOR and JAMES R. FOX and GEORGE BURNS provided that J. W. MCDONALD d/b/a J. W. MCDONALD CONTRACTOR would provide transportation, including a vehicle and gasoline, to the job site in Cameron Parish, Louisiana and back to Glenmora, Louisiana; that on or about August 10th, 1979 at approximately 6:15 P.M. GEORGE BURNS and JAMES R. FOX were traveling in a pickup truck furnished by J. W. MCDONALD d/b/a J.W. MCDONALD CONTRACTOR for returning to Glenmora, Louisiana from the job site in Cameron Parish, Louisiana; that the said pickup truck and the gasoline being used were furnished to the said GEORGE BURNS and JAMES R. FOX by J.W. MCDONALD d/b/a J.W. MCDONALD CONTRACTOR as an incident to their employment contract for their transportation from the job site back to Glenmora, Louisiana; that on or about August 10th, 1979 at approximately 6:00 P.M. JAMES R. FOX and GEORGE BURNS were involved in a collision between the pickup truck they were in and a train...”

Plaintiffs instituted this action on October 31,1979, alleging that the negligence of Burns and the negligence of the railroad employees operating the train were the proximate cause of the collision.

Burns and Commercial then filed motions for summary judgment. The trial court heard the motions and rendered judgment on April 25, 1980, sustaining the motions and dismissed the plaintiffs’ action against these two defendants. Plaintiffs were granted a devolutive appeal.

SUMMARY JUDGMENT IN FAVOR OF BURNS

Plaintiffs first argue that a distinction must be made between the test used to determine if an employee is in the course and scope of his employment so as to create vicarious liability for his employer (under the doctrine of respondant superior) and the test used to determine if he is entitled to workmen’s compensation benefits because he has suffered an accidental injury arising out of and in the course of his employment. We fail to see how this distinction is beneficial to plaintiffs’ position in the action before us.

Here, plaintiffs are attempting to maintain a tort action against a co-employee of the decedent. They bring no action against the common employer nor do they bring an action for workmen’s compensation benefits based on the accidental death of the decedent. The cases cited by plaintiffs in which the above distinction is made, have no bearing on the issues before us.

Plaintiffs next argue that the immunity from civil liability provided by LSA-R.S. 23:1032 to employees who negligently injure a co-employee is more restrictive than that granted to employers or principals who negligently injure their employees. Plaintiffs cite no jurisprudence in support of this contention and simply point to the last paragraph of LSA-R.S. 23:1032, supra, which reads:

“The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.” (Emphasis provided.)

Plaintiffs argue that Bums was “not engaged at the time of the injury in the normal course and scope of his employment” which, according to them, is more restrictive than simply acting in the course and scope of one’s employment.

The problems which may arise if plaintiffs’ argument is accepted were noted in 14 La. Civil Law Treatise: Workers’ Compensation; Malone and Johnson, § 364, where the author stated:

“The section further provides that the immunity does not extend, however, to ‘any officer, director, stockholder, partner or employee * * * who is not engaged at the time of the injury in the normal course and scope of his employment,’ or to the liability of any partner in a partnership formed for the purpose of evading the Act.74 It is not clear whether the use of the word ‘normal’ is intentional and is meant to convey some meaning other than that officers may not use this immunity as a shield in a tort suit involving a non-work-related injury. It remains at least theoretically possible to argue that an officer who goes outside of his ‘normal’ duties and negligently injures an employee might be liable in tort. Such an officer might well still be insured under the standard liability policy issued to an employer, which often insures an executive officer, director or stockholder ‘while acting within the scope of his duties as such. * * * ’75 The argument, of course, would be that his duties are broad, but his ‘normal’ duties, as to which he has immunity, might be more specific. One hopes that this rather tenuous argument, which would open another amorphous loophole, will not be accepted.”

The same problems would arise in attempting to determine when an employee who injures a co-employee was engaged, at the time of the injury, in the performance of his “normal” employment duties.

We find that the last paragraph of LSA-R.S. 23:1032, supra, simply means that an employee will be granted immunity from civil liability when he negligently injuries a co-employee if, at the time of the injury, he was engaged in the course and scope of his employment. Braxton v. Georgia-Pacific Corporation, 379 So.2d 1150 (La.App. 2 Cir. 1980); Shepard v. Louisiana Power & Light Company, Inc., 369 So.2d 1196 (La.App. 2 Cir. 1979).

Plaintiffs’ last argument is that an employee going to and from his place of employment in transportation furnished by his employer is not acting within the course and scope of his employment. We disagree.

The general rule is that an accident that befalls an employee while he is going to or returning from work does not occur in the course of his employment. However, 13 La. Civil Law Treatise: Workers’ Compensation; Malone and Johnson, § 170 states the following rule with regard to accidents which happen in the same circumstances as those present in the case before us:

“An accident that happens while an employee is being transported to or from work by his employer is compensable under the Act if the transportation is furnished as an incident of the employment. 95 This is,a widely recognized exception to the general rule, and it has given rise to considerable litigation in Louisiana. The rule applies whenever the employer has interested himself in the transportation to and from work as an incident to the employment agreement, and it is immaterial whether he provides a conveyance and driver, provides a vehicle for the employee’s use, or merely pays the cost of fuel for the employee’s own vehicle.96” See also Flynn v. Devore, 373 So.2d 580 (La.App. 3 Cir. 1979); Jagneaux v. Marquette Casualty Company, 135 So.2d 794 (La.App. 3 Cir. 1961).

It is clear that both plaintiffs’ decedent and Burns would be considered as having been acting in the course and scope of their employment for purposes of LSA-R.S. 23:1031, at the time the accident occurred and plaintiffs admit that this is so.

We find that Burns was engaged, at the time of the injury to plaintiffs’ decedent, in the normal course and scope of his employment for purposes of LSA-R.S. 23:1032, supra, based on the undisputed facts giving rise to this action.

We note the case of Manuel v. Liberty Mutual Insurance Company, 236 So.2d 807 (La.1970), where the Supreme Court had occasion to apply an exclusion provision found in an insurance policy which is similar to the civil immunity provision of LSA-R.S. 23:1032, supra. That provision read:

“The insurance with respect to any person or organization other than the named insured does not apply:
“(c) to any employee with respect to injury * * * of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of an automobile in the business of such employer.” (Italics ours)”

The facts in Manuel, supra, were similar to the facts in the case before us. There, two employees went to Lafayette, Louisiana, in a car furnished by their employer. They were returning to Opelousas, Louisiana, after having completed their mission for their employer in Lafayette when the accident occurred. The plaintiff attempted to bring a tort action against the insurer of his employer based on the alleged negligence of his co-employee who was driving the vehicle. There, plaintiff attempted to make a distinction much like the one plaintiffs in the case before us are trying to make. However, the court, in Manuel, supra, rejected plaintiff’s argument and stated, on page 811, that:

“Our research of the matter, however, reveals that there are some cases which do hold that in tort actions, where the issue is whether an alleged tort feasor is in the course of his employment, the same considerations are not given to holdings involving the same issue in compensation suits, because a stricter rule applies in tort actions. But those decisions were rendered in suits by third parties against the employer of the tort feasor, and recovery depended on the application of the doctrine of respondeat superior. Even so, there are cases in the jurisprudence to the contrary.”

The Supreme Court went on to hold that, “inasmuch as the plaintiff herein would clearly have been entitled to receive compensation benefits, that is his only remedy....”

See also Jagneaux v. American Automobile Insurance Company, supra; Myers v. Fidelity & Casualty Company of New York, 152 So.2d 96 (La.App. 3 Cir. 1963), writ denied, 244 La. 629, 153 So.2d 775 (1963).

We find that there is no genuine issue as to material fact and that Burns is entitled to judgment as a matter of law.

SUMMARY JUDGMENT IN FAVOR OF COMMERCIAL

Commercial issued a policy of insurance to J. W. McDonald which covered the pickup truck involved in the accident here. That policy contained the following exclusion:

“Bodily injury to any employee of the insured arising out of and in the course of his or her employment by the insured. However, this exclusion does not apply to bodily injury to domestic employees not entitled to worker’s compensation benefits. ...”

We have already determined that plaintiffs’ decedent was injured in an accident arising out of and in the course of his employment. However, plaintiffs argue that the above exclusion is inapplicable because decedent was injured by a co-employee. We fail to see any basis for plaintiffs’ argument.

The trial court, in addition, held that under the Workmen’s Compensation Act an employee whose fault causes damage to a co-employee is not required to repair the damages. Therefore, the injured co-employee has no cause of action under LSA-C.C. Article 2315 for injuries sustained when both are acting in the course and scope of their employment due to the other employee’s fault.

The trial court then held that Commercial’s liability is predicated upon the liability and tort of McDonald, the employer, or Burns, the co-employee. Therefore, plaintiffs cannot assert a cause of action in tort against Commercial because LSA-R.S. 23:1032 eliminates that cause of action against McDonald or Burns.

The trial court, in so holding, extended the rationale of Cripe v. Haynes, 350 So.2d 956 (La.App. 2 Cir. 1977), where the court stated, at page 960:

“LSA-C.C. Art. 2315 creates the substantive liability of those whose fault causes damage to another and a substantive cause of action in favor of persons injured by the fault of another to be compensated for their damages.
The Workmen’s Compensation Act provides a substantive exception to the rule of Article 2315. An employer whose fault causes damage to an employee is not required to repair the damages. The employee has no cause of action under Article 2315 against the employer for damages for injury sustained in the course and scope of his employment due to the employer’s fault. LSA-R.S. 23:1032; Dandridge v. Fidelity & Casualty Co., 192 So. 887 (La.App.2d Cir. 1939); Shumake v. Home Indemnity Co., 68 So.2d 789 (La.App.2d Cir. 1953). The Workmen’s Compensation Act creates an entirely different, distinct, and separate cause of action in favor of an employee against an employer for specific statutory benefits, regardless of fault on the part of the employer.”

We hold that the trial court properly sustained Commercial’s motion for summary judgment. For the above and foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . Plaintiffs also named the Missouri-Pacific Railroad Company, the Texas & Pacific Railroad Company, and their employees, Charles R. Bailey and Terry Basco as defendants. In addition, the State of Louisiana, through the Dept, of Transportation & Development was also named as a defendant. The presence of these defendants is of no consequence on this appeal. However, we do note that on December 20, 1979, the trial court rendered a judgment of partial dismissal as to the State of Louisiana, through the Dept, of Transportation & Development.

      . Babineaux v. Lavergne, 321 So.2d 401 (La. App. 3 Cir. 1975) and Miller v. Keating , 339 So.2d 40 (La.App. 3 Cir. 1976), writ issued 341 So.2d 901 (La. 1977), amended and affirmed, 349 So.2d 265 (La. 1977), both concerned situations involving the employer-employee relationship and the vicarious liability of the employer for torts committed by the employee while acting within the course and scope of his employment.

        Williams v. Sewerage & Water Board of New Orleans, 90 So.2d 582 (La.App.Orl. 1956) involved an action brought by plaintiff for workmen’s compensation benefits when he injured himself.

        Ivory v. Philpot Const. Co., 145 So. 784 (La. App. 2 Cir. 1933) involves an action brought by plaintiff for workmen’s compensation benefits when he was injured by an unknown third party.

      . “§ 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws
      The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.
      Amended by Acts 1976, No. 147, § 1.”

      . There are a large number of cases from the jurisprudence cited in this section of the Treatise.

      . LSA-R.S. 23:1031 provides, in pertinent part:
      “§ 1031. Employees’ right of action; joint employers, extent of liability
      If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.”

      . “Art. 966. Motion for summary judgment; procedure
      The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      The motion for summary judgment shall be served at least ten days before the time specified for hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. As amended Acts 1966, No. 36, § 1.”


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Edwin BERNARD, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellants.
    No. 7989.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Davidson, Meaux, Sonnier & Roy, M. Candice Hattan, Lafayette, for defendants-appellants.
    McBride & Brewster, Elizabeth Dugal, Glynn Rozas, Voorhies & Labbe by D. Mark Bienvenu, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, FORET and SWIFT, JJ.
   FORET, Judge.

Allstate Insurance Company suspensively appeals from a judgment of the trial court granting plaintiff’s motion to strike a request for a jury trial from defendants’ answer.

FACTS

The trial court signed an order allowing defendants to file an amending and supplemental answer pleading the affirmative defense of assumption of the risk on January 31,1980. The trial court then signed another order allowing defendants to file an amending and supplemental answer containing a request for trial by jury on February 8,1980. This second order also directed that the case be placed on the jury docket for trial by jury upon defendants’ furnishing bond as required by law.

Subsequently, Edwin Bernard (Plaintiff) filed a motion to strike defendants’ request for a jury trial, alleging that defendants filed their first amending and supplemental answer for the sole purpose of requesting a trial by jury, thereby circumventing the provisions of LSA-C.C.P. Article 1732. The trial court ordered defendants to show cause why plaintiff’s motion should not be granted. The motion was heard and the trial court rendered its judgment on May 27, 1980, in favor of plaintiff.

Allstate filed an application for supervisory writs with this Court on June 10,1980, in which it sought review of the trial court’s judgment granting plaintiff’s motion to strike. We denied the writ on June 18, 1980, stating that:

“From the pleadings filed, there appears to be no error or abuse of discretion in the ruling complained of”.

Allstate also filed a motion for a suspen-sive appeal on June 9, 1980, and, by that appeal, once again seeks to have this Court review the judgment of the trial court granting plaintiff’s motion to strike.

APPEALABILITY OF THE INTERLOCUTORY JUDGMENT

A judgment denying a jury trial is an interlocutory judgment. LSA-C.C.P. Article 1841; Sonnier v. Gray Tool Company, 359 So.2d 1111 (La.App. 3 Cir. 1978). The Louisiana Code of Civil Procedure retains the test of irreparable injury with the respect to the appealability of interlocutory judgments. LSA-C.C.P. Article 2083 and Official Revision Comment(d) thereto.

Therefore, there can be no appeal from a judgment of the trial court denying a jury trial unless a showing of irreparable injury is made. Sonnier v. Gray Tool Company, supra; Hunter v. Health & Social & Rehabilitation Services, 372 So.2d 577 (La. App. 2 Cir. 1979); Ruston State Bank & Trust Co. v. Theodus, 366 So.2d 218 (La. App. 2 Cir. 1978); Sanford v. Hair, 373 So.2d 1371 (La.App. 1 Cir. 1979), writ denied, 376 So.2d 320 (La.1979); Triche v. City of Houma, 342 So.2d 1155 (La.App. 1 Cir. 1977); In re Martin, 361 So.2d 1315 (La.App. 1 Cir. 1978); Guidroz v. State Farm Fire and Casualty Company, 334 So.2d 535 (La.App. 1 Cir. 1976). See also Millet v. Johnson, 352 So.2d 1301 (La.App. 4 Cir. 1977).

The review and correction of every claimed trial court procedural error by the appeal process is neither desirable nor necessary, and the result of that process would be piecemeal appeals and undue delay. Succession of Kilpatrick, 381 So.2d 586 (La. App. 2 Cir. 1980); Hunter v. Health & Social & Rehabilitation Services, supra; Cheramie v. Vegas, 385 So.2d 453 (La.App. 1 Cir. 1980).

We believe that a better procedure for appealing from an order denying a jury trial and other orders involving trial court procedure is by application for supervisory writs. Review is much more expeditious and stay of trial court proceedings pending the application is within the discretion of the trial court and the court of appeal. Sonnier v. Gray Tool Company, supra; Hunter v. Health & Social & Rehabilitation Services, supra; Guidroz v. State Farm Fire and Casualty Company, supra.

The case before us presents an example of the undue delay which can result when the suspensive appeal process is used for the review of claimed trial court procedural errors. Plaintiff filed his petition instituting this action on January 17, 1978, and now, some three years later, there is still no date set for the trial of this action. Such delays can only be detrimental to the proper administration of justice.

The test for determining whether an interlocutory judgment may cause irreparable injury is whether the procedural error will have such an effect on the merits of the case, that the appellate court cannot correct an erroneous decision on the merits. Succession of Kilpatrick, supra; Hunter v. Health & Social & Rehabilitation Services, supra; Cheramie v. Vegas, supra.

We find this test to be inadequate when applied to the determination of whether an interlocutory judgment denying a party a trial by jury may cause irreparable injury. The danger is that erroneous interlocutory judgments of the trial courts denying parties the right to trial by jury may be considered as never having such an effect on the merits of a case that an erroneous decision on the merits cannot be corrected on appeal.

Indeed, one court has already expressed the view that judges are at least as competent as juries to try cases and that the facts and law are subject to appellate review. Therefore, errors on the merits may be corrected whether a case is tried by a judge or a jury. See Hunter v. Health & Social & Rehabilitation Services, supra. We fail to see how a litigant could ever prove irreparable injury when denied a trial by jury under the above test and reasoning.

The right to a trial by jury is recognized by LSA-C.C.P. Article 1731, except as limited by the provisions of LSA-C.C.P. Article 1733. The problem presented is how to provide for a full realization of this important right while at the same time adhering to the mandate of LSA-C.C.P. Article 2083 requiring a showing of irreparable injury in order to appeal from an interlocutory judgment.

We adopt the following test in an attempt to solve this problem. A party appealing from an interlocutory judgment of the trial court denying it a trial by jury must show that it is clearly entitled to such under the appropriate statutes. See Wilson Sporting Goods Company v. Alwes, 17 So.2d 382 (La.App. 1 Cir. 1944). This Court will find no irreparable injury in the absence of such a showing.

We adhere to the jurisprudence to the effect that the mere denial of a jury trial, without more, does not, upon its face, result in irreparable injury such that it warrants a separate appeal, thereby disrupting orderly legal process and causing a commitment to the delays inherent in normal appellate procedure. Guidroz v. State Farm Fire and Casualty Company, supra; Sonnier v. Gray Tool Company, supra.

Defendant argues that its second amending and supplemental answer setting forth its request for trial by jury was filed timely, i. e., within ten days after the service of its first amending and supplemental answer pleading the affirmative defense of assumption of the risk. Therefore, it argues that under LSA-C.C.P. Article 1732 the trial court had no choice but to grant it a trial by jury. However, the Supreme Court, in Bar-berito v. Green, 275 So.2d 407 (La.1973), stated, on page 410, that:

“There is within the provisions of the Code of Civil Procedure the necessary safeguard against any abuse of the provisions of Article 1732 by the filing of amending pleadings. The trial judge, in the exercise of discretion may not allow the filing of such amending pleadings which he finds are proffered for the purpose of circumventing the limitations in this article. See C.C.P. Article 1151.”

The plaintiff specifically alleged, as the grounds for his motion to strike, that defendants’ first amending and supplemental answer “was filed solely for the purpose of requesting a trial by jury and thereby circumventing the provisions of LSA-C.C.P. Article 1732”. The trial court, in rendering judgment on plaintiff’s motion, stated that, “The court considering the law and evidence to be in favor of plaintiff ... IT IS ORDERED, ADJUDGED AND DECREED that the motion to strike be granted ... ”.

It is apparent that the trial court did indeed find that the defendants were attempting to circumvent the time limitations of LSA-C.C.P. Article 1732. We find the fact that the trial court failed to recall its order of January 31, 1980 allowing defendants to file their first amending and supplemental answer to be of no significance.

We hold that defendants have failed to show that they are clearly entitled to a trial by jury under the appropriate statutes. Therefore, we find no irreparable injury resulting to defendants from the interlocutory judgment of the trial court denying them a trial by jury, and, in the absence of this required showing, the judgment is not appealable.

An appellate court may dismiss an appeal on its own motion where there is no right to appeal. LSA-C.C.P. Article 2162; Sonnier v. Gray Tool Company, supra; Bunkie Bank & Trust Company v. Avoyelles Parish Police Jury, 347 So.2d 1305 (La.App. 3 Cir. 1977). We dismiss defendant’s appeal.

The appeal is dismissed at defendant-appellant’s (Allstate) costs.

APPEAL DISMISSED.

SWIFT, J., concurs, being of the opinion the motion to strike was properly sustained.

      . The other defendant in this case is Joyce McZeal. She has not appealed from the judgment of the trial court granting plaintiffs motion to strike.

      . “Art. 1732. Demand for jury trial
      A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.”

      . “Art. 2083. Judgments appealable
      An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

      . We note Justice Dixon’s concurrence in the writ denial where he states, in part, that “... it is an irreparable injury to deny a trial by jury, and such a denial is appealable

      . As we noted above, Allstate did apply for supervisory writs with this Court for review of the interlocutory judgment of the trial court denying it a trial by jury. The writ was denied.

      . This case is erroneously reported as a First Circuit opinion.


author: SWIFT, Judge.

text:
    Silton TURNER, Plaintiff-Appellee, v. J & J WELLS CONTRACTORS, INC. et al., Defendants-Appellants.
    No. 7995.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Writ Refused May 1,1981.
    Laborde & Lafargue, David E. Lafargue, Marksville, for defendants-appellants.
    Riddle & Bennett, John T. Bennett, Marksville, for plaintiff-appellee.
    Before CULPEPPER, FORET and SWIFT, JJ.
   SWIFT, Judge.

Silton Turner, plaintiff, has sued his employer, J & J Wells Construction Company, and its insurer, Tri-State Insurance Company, for workmen’s compensation benefits. It is undisputed that Turner was struck on the right side of his head by a falling tree limb in the course of his employment as a logger on June 19, 1979. The trial judge found the plaintiff was temporarily totally disabled and awarded him compensation at a rate of $141.00 per week from June 19, 1979, to August 11,1980, subject to a credit of $1,692.00 for compensation paid through September 11, 1979. The judgment also included $1,600.60 for unpaid medical bills and $318.40 for travel expenses. The trial judge denied Turner’s demand for an attorney’s fee and penalties. The defendants have appealed. Turner answered the appeal seeking total and permanent disability benefits, an additional $137.00 in medical bills, a reasonable attorney’s fee and statutory penalties.

The defendants contend the trial judge erred, in light of the expert medical testimony, in finding Turner is temporarily totally disabled due to substantial pain.

The plaintiff said that he was unconscious for about 30 minutes, but was driven home and then seen by Dr. Newell E. Gau-thier, Jr. of Cottonport the day of the accident. The latter’s report in evidence reflects that he found pain on palpitation of the left forehead and shoulder and noticed swelling and discoloration. There were no apparent fractures. His diagnosis was simply a contused forehead and a contused shoulder.

The plaintiff further testified he went to the Marksville Hospital that day and on June 20, 1979, he was x-rayed at the hospital in New Rhodes. They sent him to Our Lady of the Lake Hospital in Baton Rouge. However, the record contains no information as to who saw Turner or what was done at the two hospitals first mentioned.

At Our Lady of the Lake he was finally referred to Dr. David G. Fourrier, who after x-rays were taken reported his impression that plaintiff had sustained a right frontal temporal skull fracture with a non-displaced right orbital rim and a frontozy-gomatic suture fracture. Inasmuch as 24 hours had passed since the accident and the neurological examination was “grossly intact”, the doctor did not believe hospitalization was necessary. No treatment was recommended, because there was no displacement of bones and no adverse optical findings. Dr. Fourrier also saw plaintiff on June 22 and confirmed his first examination. A follow-up examination was scheduled two weeks later, but the plaintiff did not appear.

Mr. Turner said he had been told by his employer’s representative to see whatever doctor he wished and therefore went to Lake Charles for an examination by Dr. William F. Foster, a neurosurgeon, for an appointment made by a relative. Dr. Foster had him admitted to the Lake Charles Memorial Hospital on June 23, where he stayed until June 27 for a complete neurological examination and other tests. All of these, including x-rays, were essentially normal. Plaintiff was also seen in consultation by Dr. Clark Gunderson, an orthopedic surgeon, who concluded that plaintiff had sustained a contusion of his right shoulder with no bony problems. Dr. Foster reexamined plaintiff on July 12, August 9 and September 11. His final diagnosis of plaintiff’s condition was a cerebral concussion with mild post-concussion syndrome and a contusion of the right shoulder. He reported plaintiff had fully recovered and was able to return to his previous occupation as a logger on September 11, 1979.

In the meantime, on July 4, 1979, Turner was examined by Dr. Edmond J. Kalifey of Marksville in connection with an application for welfare assistance. His complaints were the same as reported to the other doctors, i. e., headaches, dizziness, poor memory and pain in the right shoulder. This doctor’s examination was reported as “unremarkable”, but he expressed the opinion that plaintiff was unable to work because of his symptoms which were compatible with a post-concussion type syndrome. Dr. Kalifey suggested a neurological evaluation.

Dr. John R. Clifford, a Baton Rouge neurosurgeon, saw the plaintiff on October 22, 1979. He thought Turner had been referred to him by Dr. Kalifey. His neurological examination was much the same as Dr. Poster’s as was his final diagnosis of a post-concussion syndrome. Dr. Clifford said that plaintiff was fully capable of getting back to work and that his complaints of headaches were “largely functional in nature” and needed to be deemphasized to the patient. He felt that returning to work would be good “treatment” as it would get Turner’s mind on things other than his complaints. The physician said that he “would not be the least concerned about” plaintiff’s complaints of sharp head pains lasting only a few seconds. Dr. Clifford agreed with Dr. Fourrier’s findings and conclusion that no treatment was necessary in June 1979.

On February 7, 1980, the plaintiff was seen at the request of his attorney by Dr. John N. Patton, an Alexandria neurosurgeon, for his complaint of intermittent brief shooting pains just above the right eye. The neurological examination was completely normal and the doctor stated his findings were essentially the same as those of Dr. Foster in regard to the post-concussion syndrome. He also agreed with Dr. Foster’s opinion that plaintiff was able to resume his. work on September 11. He testified that he had never had a patient with a post-concussion syndrome that experienced shooting pains as described by plaintiff; usually it was a chronic nagging headache that lasted hours or days at a time. However, this doctor testified he “would give him the benefit of the doubt and say that his symptoms are genuine, and I would expect though that he will make a complete recovery eventually.” Further, although he was unable to find anything on the neurological examination that would indicate disability, he testified that if these brief periods of pain are “severe enough to interfere with his work then perhaps he is disabled, but that’s the only thing I have been able to find.” He said he could not “quantitate his degree of pain.”

The plaintiff’s complaints of pain and disability were confirmed to some extent by his wife, who added that he had not been able to feed the hogs and cut grass “too much.” However, he has never attempted to return to work as a logger.

The trial judge concluded that on the basis of Dr. Patton’s and plaintiff’s testimony he continued to suffer head pain which caused him to be totally disabled until August 11, 1980.

It is well settled that a person is totally disabled if he would be subjected to substantial and appreciable pain on returning to work. However, the employee must prove such disabling pain to a legal certainty and fair preponderance of the evidence. Whether or not he has carried this burden must be determined from the totality of the evidence, including both medical and lay testimony. Guidry v. Ford, Bacon & Davis Const. Corp., 376 So.2d 352 (La. App. 3 Cir. 1979); Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923 (La.App. 3 Cir. 1973).

In this case the plaintiff was examined thoroughly and completely by three neurosurgeons, specialists in the field of plaintiff’s complaints. Their tests and diagnoses were the same and none could find any basis for the headaches of which plaintiff complained. All agreed that plaintiff was able to work on September 11, 1979. However, Dr. Patton decided to give him the “benefit of the doubt” and said Turner’s unusual brief shooting head pains were genuine. Nevertheless, Dr. Patton did not testify that they were so substantial that plaintiff could not work. He said simply that “if” they were severe enough then “perhaps ” he is disabled. This testimony is obviously speculative and conjectural and in our opinion cannot overcome the overwhelming medical testimony to the contrary on the issue of disability. Nor was the lay testimony convincing.

While we are reluctant to reverse the trial judge on this factual issue, it is our duty to do so when he is clearly wrong. We are unable to say his finding that plaintiff was disabled from gainful employment from the accident until September 11, 1979, was so erroneous. However, it is clear to us the trial judge was manifestly in error in concluding that Mr. Turner established by a preponderance of evidence that he was suffering substantial and appreciable pain which disabled him thereafter. Accordingly, the judgment will be amended so as to award workmen’s compensation benefits only up to that date.

Although it is a close question because no medical treatment was prescribed by Dr. Foster, having concluded that plaintiff was disabled when the medical expenses were incurred in Lake Charles we find they were reasonable and necessary and will affirm the trial judge’s award thereof as well as the award for travel expenses. However, we are convinced that the examinations by Dr. Patton were principally for evaluation for trial despite his prescription of an analgesic. The disallowance of such medical bill therefore will be affirmed.

We agree with the trial court’s determination that the defendants’ refusal to pay the benefits in this instance was not arbitrary and capricious and that plaintiff is not entitled to statutory penalties and an attorney’s fee.

For the foregoing reasons, the judgment of the district court is amended so as to award weekly compensation benefits up to September 11, 1979, instead of August 11, 1980, and as amended it is affirmed. The costs of this appeal are assessed to plaintiff-appellee.

AMENDED AND AFFIRMED.


author: DOUCET, Judge.

text:
    STANDARD MACHINE & EQUIPMENT COMPANY, Plaintiff-Appellee, v. LAKE CHARLES REFINING COMPANY, Defendant-Appellant.
    No. 8001.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Levingston, Tynes & Liles, Maurice L. Tynes, Lake Charles, for defendant-appellant.
    Hunt, Godwin, Painter & Roddy, John S. Hood, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Standard Machine & Equipment Company, a foreign corporation authorized to and doing business in Calcasieu Parish, Louisiana, brought this suit against defendant Lake Charles Refining Company, a joint venture or unincorporated association of three Texas corporations, to recover money due under two separate contracts. Defendant answered, denying that it was indebted to plaintiff, and reconvened for damages allegedly resulting from plaintiff’s breach of the contracts. Prom a judgment of the district court in favor of plaintiff, granting its demands and dismissing defendant’s reconventional demand, defendant appeals. We affirm.

The contracts giving rise to this suit were in the form of written purchase orders, which were issued by defendant for the purpose of securing used parts to be used in building a petroleum refinery near Lake Charles, Louisiana. The first one, which was issued on May 17,1978, set out defendant’s agreement to purchase a specified quantity of used valves from plaintiff at a price of $.45 per pound, subject to defendant’s right to accept or reject them upon delivery.

Pursuant to the agreement, plaintiff delivered a trailer loaded with valves to defendant’s construction site, leaving it for defendant to select the valves that it needed. The trailer remained there a week, during which time defendant unloaded approximately 80 percent of the valves. Although the valves were unloaded and remained in defendant’s possession at the time of the trial, the purchase price was never paid.

Plaintiff brought this suit, seeking the recovery of $5,139.00, the value of 11,420 pounds of valves at the contract price of $.45 per pound. Defendant answered, denying that it had accepted the valves. It alleged that the valves had been unloaded without its authorization, and that upon inspection, they were found to be worthless. As part of its reconventional demand, defendant sought recovery of the costs of removing them from its plant.

At the trial, however, defendant changed its position. Its general contractor, D. J. Landry, Jr., testified that many of the valves were usable and that they had been incorporated into the construction. Defendant’s general manager, Joseph P. Chamberlain, on the other hand, denied that the valves had been used. However, he testified that they had been accepted at the reduced price of $.15 per pound.

Plaintiff’s witnesses denied that the price had been re-negotiated, and the trial judge resolved the conflict in plaintiff’s favor, finding that the valves had been accepted at the contract price of $.45 per pound. Our review of the record has not revealed that that finding is clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Accordingly, neither it nor the resulting award to plaintiff will be disturbed.

The second purchase order, which was issued on July 5, 1978, set out defendant’s agreement to purchase a used cooling tower from plaintiff for a price of $10,000.00. Both parties agreed, however, that the price was later reduced by oral agreement to $3,500.00 plus expenses incurred by plaintiff in dismantling the tower. Pursuant to the agreement, plaintiff delivered the tower’s interior pumps, fans, and other mechanisms to defendant’s construction site. However, the wooden framework of the tower was destroyed.

Plaintiff’s witnesses testified at the trial that Mr. Chamberlain had ordered the destruction of the framework. Mr. Chamberlain denied having given such an order, however, and defendant adopted the position that it was not liable for the expenses incurred in dismantling the tower, because the contract had been breached when the framework was destroyed. The trial judge resolved the conflict in the testimony in favor of plaintiff, finding that the destruction of the tower did not constitute a breach of the contract. The trial court is in a better position to evaluate the credibility of witnesses. Canter v. Koehring Company, supra. Bearing that fact in mind, we cannot say that that finding was clearly wrong.

Because we affirm the trial judge’s holding that plaintiff did not breach the contracts, we also affirm his dismissal of defendant’s reconventional demand.

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to the defendant-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Daniel LYONS, Plaintiff-Appellant, v. David LYONS, Defendant-Appellee.
    No. 8007.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Dupuis & Mayers, Kenneth P. Mayers, Lafayette, for plaintiff-appellant.
    Miller, Miller & Craton, John F. Craton, Crowley, for defendant-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

In a document styled “PETITION FOR DISSOLUTION OF PARTNERSHIP” Daniel Lyons, plaintiff, sued his father, David Lyons, defendant, to partition the assets of Lyons Dairy and to dissolve the partnership between the parties, if one was found to exist. The trial court found the agreement between the parties constituted a partnership and ordered its dissolution. From that judgment plaintiff has appealed.

The issue on appeal is whether the trial court erred in finding that the agreement between the parties constituted a partnership.

In 1969, Daniel Lyons and his father entered into a verbal agreement to operate a dairy farm. Daniel Lyons, recently graduated from the University of Southwestern Louisiana with a degree in dairy science, was to be the main operator of the dairy farm. David Lyons at the time raised beef cattle and worked full-time for the Railway Express Agency. He owned the land, buildings, and some of the equipment to be used in the operation of the dairy farm. A dairy parlor was constructed and dairy cattle and dairy equipment purchased. Lyons’ dairy prospered over the years but the relationship between the parties deteriorated resulting in the present suit.

There was never any formal partnership agreement drawn up between the parties. Only the parties and their wives testified at trial to the substance of the agreement.

Daniel Lyons testified that he and his father agreed to share only the profits from the milk production and did not enter into a partnership agreement. He also stated that under their agreement, he was to own each calf born and any equipment purchased from the dairy farm’s assets. Over the years, most of the original cows have been culled from the herd, so under the parties’ alleged agreement, he, Daniel, would own the present dairy cattle.

Genevieve Lyons, wife of Daniel Lyons, testified to the same agreement stated by her husband. However, upon questioning by the trial judge, it was brought out that she was never present when her husband and father-in-law discussed their agreement nor was she involved in the financial operations of the dairy farm. Her knowledge of the agreement came from what she had been told by her husband.

Lernice L. Lyons, recently separated from David Lyons, testified that she did not believe the dairy farm was to be operated as a partnership, but she could not testify to being present at any discussion of the agreement between her son 'and husband.

David Lyons testified the dairy farm was to be operated as a partnership with an equal division of the profits. He denies any agreement giving Daniel Lyons sole ownership of the calves or equipment. David Lyons also testified to purchasing equipment and cattle for the dairy farm and aiding in its operation.

Daniel Lyons testified that on June 2, 1977, he offered to purchase the land used for the dairy farm and end their agreement. David Lyons testified his son offered him $4,000.00 per acre and $600.00 per head for his interest in the dairy cattle. Lernice Lyons testified to being present and hearing her son offer to buy both the land and his father’s interest in the dairy cattle. Daniel Lyons denies offering to buy any interest in the dairy cattle.

Both parties introduced evidence to support their testimony as to the substance of their agreement. Daniel Lyons introduced permits from the state Health Department listing him as owner of Lyons’ Dairy and registration certificates from the Holstein-Friesian Association of America listing him as owner of certain cattle. David Lyons introduced partnership tax returns for Lyons’ Dairy from 1971-77, various bills showing he had the authority to incur debts on behalf of Lyons’ Dairy and receipts showing he paid the insurance premiums for the insurance coverage on Lyons’ Dairy.

A review of the record shows that only the parties are aware of the substance of the agreement they entered into in 1969. The trial court in reaching its decision found the testimony of David Lyons to be more credible. Such a finding by the trial court is entitled to great weight and cannot be disturbed absent manifest error. No showing of such error has been made. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Accepting the testimony of David Lyons as true, we must now determine whether the legal criteria for the existence of a partnership have been met. In Sas Jaworsky v. LeBlanc, 239 So.2d 176 (La.App. 3rd Cir. 1970), writ denied 240 So.2d 373 (La. 1970), this Court stated:

“In order for a business relationship to be considered a partnership, the following circumstances must exist: (1) The parties must have mutually consented to form a partnership; (2) all parties must share in the losses as well as the profits of the venture; and (3) the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest. LSA C.C. articles 2801, 2805, 2813 and 2814.”

The parties mutually consented to enter into an agreement to operate a dairy farm in 1969. According to the testimony of David Lyons the parties agreed that the dairy farm was to be operated as a partnership.

The testimony concerning the division of the profits showed the amounts of the profits were not determined until all expenses and losses had been accounted for. This sharing of the losses as well as the profits is supported by the information contained in the partnership tax returns for Lyons’ Dairy from 1971-1977.

Accepting David Lyons’ testimony that the partnership was to be operated on a fifty-fifty basis, we find that each party has a half-interest in the dairy cattle and dairy equipment purchased. This establishment of a community of goods in which each partner has a proprietary interest is supported by the offer of Daniel Lyons to buy out his father’s interest in the dairy cattle.

We find that the legal criteria for the existence of a partnership have been met.

For the above and foregoing reasons, the decision of the trial court is affirmed. Plaintiff is to pay the costs of these proceedings.

AFFIRMED.-

      . Although it appears that plaintiff is appealing from a judgment which awarded him relief which he requested, we understand his position to be that he alone owned the dairy animals and certain dairy equipment while his father, the defendant, owned the land and the buildings. Also, plaintiff seems to be claiming that he owned the business and that his father was merely one of his employees. Therefore, plaintiff appeals from the determination that a partnership existed because the dissolution of the partnership would divest him of one-half the dairy herd and one-half of all dairy equipment purchased with the dairy profits.

      . Act 150 of the 1980 Regular Session of the Louisiana Legislature revised the Civil Code Articles relative to partnership. However, the revised Articles did not become effective until January 1, 1981.


text:
    Nolan DUHON et ux., Plaintiffs-Appellants, v. THREE FRIENDS HOMEBUILDERS CORPORATION, Defendant-Appellee.
    No. 8015.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Thompson, Sellers & Bundick, Roger C. Sellers, Abbeville, for plaintiffs-appellants.
    Funderburk & Conque, Durwood Conque, Abbeville, for defendant-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is a redhibition action. The plaintiffs, Nolan and Patricia Duhon (Duhons), appeal from a judgment of the trial court granting a motion for summary judgment in favor of the defendant, Three Friends Homebuilders Corporation (Three Friends). We affirm.

The sole issue on appeal is whether the contract entered into between the Duhons and Three Friends is a contract of sale or a contract to build.

The parties concurred and submitted at trial of the motion that the determination of whether the transaction is a sale or a building contract would be dispositive of the motion for summary judgment, i. e., if a sale, the summary judgment should be denied, and if a building contract, the summary judgment should be granted because in the latter case the remedy of redhibition would not be available to the Duhons inasmuch as redhibition is the avoidance of a sale; without a sale, there can be no redhi-bition. La.C.C. Article 2520.

The facts, disclosed by affidavits, were undisputed.

Three Friends is in the business of constructing and selling houses. Prospective “buyers” select a floorplan and choose the color schemes, appliances, etc., that they desire. Thereafter, the house is virtually completely constructed on Three Friends’ premises. When the house is completed, it is then moved onto the purchaser’s lot.

On April 26,1978, the Duhons negotiated with Three Friends to build a house. On that date, they chose which floorplan and color scheme they desired. After these negotiations were complete, Three Friends began constructing the house. The house was completed on or about July 25, 1978 and moved onto the Duhons’ lot. Thereafter, the Duhons noticed several severe defects in the house. After several unsuccessful attempts by Three Friends to remedy the defects, the Duhons filed this suit demanding a rescission of the sale, or in the alternative, a reduction in the price, plus attorney fees. Three Friends then filed a motion for summary judgment contending the contract entered into between the parties was a contract to build, and therefore, the Duhons could not recover in redhibition. The trial court held the contract was a contract to build and granted Three Friends’ motion for summary judgment.

The Duhons contend the contract was a contract to sell a future thing, the sale becoming effective upon the completion of the house. They cite Plaquemines Equipment & Machine Co. v. Ford Motor Company, 245 La. 201, 157 So.2d 884 (1963), and Succession of Schieffler v. Belair Trailer Sales, Inc., 242 So.2d 285 (La.App. 4th Cir. 1970) to support their contention. We find these cases distinguishable because both involved a sale through a dealership which purchased the desired object from the manufacturer. The contract between the purchaser and the seller (dealer) involved the transfer of a movable object which was essentially complete by the time it was acquired by the dealer. Thereafter, it was transferred to the buyer in essentially the same state as when it arrived from the manufacturer.

The contract of sale is defined in La.C.C. Article 2439 as follows:

“The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.”

The Duhons contend that they gave money in exchange for the completed house and because there was consent as to the object and the price, the sale was perfected.

However, the present undertaking can also be construed to fit under the definition of a contract to build as defined by La.C.C. Articles 2756 and 2757:

“To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.”
“A person, who undertakes to make a work, may agree, either to furnish his work and industry aloné, or to furnish also the materials necessary for such a work.”

Three Friends contends that this case involves a contract to build because they agreed to construct the house for a certain stipulated price and to furnish the labor, industry and materials necessary for such a work. Because both a contract of sale and a contract to build require an object, a price, and consent, we must look to the jurisprudence to determine what factors distinguish the two types of contracts. There we find support for Three Friends’ contention.

The object of the contract in the instant case is a house. In Broussard v. Pierret, 215 So.2d 136 (La.App. 3rd Cir. 1968), a prospective buyer negotiated with a contractor to build a house on a lot owned by the contractor. Ah “act of sale” was passed after the house was built, purporting to convey the title to the house and lot to the buyer. The court held that the contract was a contract to build.

In Henson v. Gonzalez, 326 So.2d 396 (La.App. 1st Cir. 1976), a jeweler contracted with a cabinetmaker to make some display cases. The jeweler supplied the plans. The cases were made at the cabinetmaker’s shop and were then delivered to the jeweler. Upon delivery, the jeweler refused to accept the cases contending they were unfit for their intended use. The cabinetmaker sued in contract. The court held that the contract was a contract to build rather than a contract to sell.

A reading of the above eases reveal three major factors in determining whether a contract is a contract of sale or a contract to build. First, in a contact to build, the “buyer” has some control over the specifications of the object. Second, the negotiations in a contract to build take place before the object is constructed. Third, and perhaps most importantly, a building contract contemplates not only that one party will supply the materials, but also that that party will furnish his skill and labor in order to build the desired object. In this respect, see Kegler’s, Inc. v. Levy, 239 So.2d 450 (La.App. 4th Cir. 1970), writ denied 241 So.2d 253 (La.1970); Aireo Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961).

In the instant case, the Duhons had some control over the construction of the house in that they specified which floor plan and color scheme they desired. The negotiations were conducted before construction of the house commenced and a large degree of skill and labor was required of Three Friends to construct the house. We therefore hold that the contract entered into between the Duhons and Three Friends is a contract to build and that the Duhons cannot recover in redhibition. We express no opinion as to any other rights which plaintiffs might have.

For the reasons stated above, the judgment of the trial court dismissing the plaintiffs’ claims is affirmed. The costs of this appeal are taxed to the plaintiffs, Nolan and Patricia Duhon.

AFFIRMED.

      . Apart from a few modifications which were to be made by the dealer at the purchaser’s request, the truck involved in the Plaquemines Equipment & Machine Co. case was constructed entirely by the manufacturer, with whom the purchaser had no contract.

      . See also' Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (1967), which supports the proposition that builders of a home are contractors and not vendors.


author: GUIDRY, Judge.

text:
    Sam Leroy TOBIN, Plaintiff-Appellee, v. Lester T. WILLIAMS et al., Defendants-Appellants.
    No. 8031.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Robert L. Salim, Richard N. Ware, Natchitoches, for defendants-appellants.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr. and Gaha-gan & Gahagan, H. C. Gahagan, Jr., Natchi-toches, for plaintiff-appellee.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   GUIDRY, Judge.

In this tort suit the plaintiff, Sam Leroy Tobin, seeks recovery of damages for injuries sustained as a result of a shooting incident. Named as defendants are Lester T. Williams, the alleged tortfeasor; Commercial Union Insurance Company (hereafter, Commercial), Williams’ homeowner’s insurer; and, American Employer’s Insurance Company (hereafter American), Williams’ automobile liability insurer. The trial court rendered judgment in favor of plaintiff against Williams for the sum of $30608.61, but dismissed plaintiff’s demands against both insurers. Williams appealed contending primarily that the trial court erred in dismissing both insurers. Tobin answered the appeal seeking an increase in the damage award.

The facts of the instant case are accurately and succinctly set forth by the trial court in its written reasons. We quote therefrom:

“This was a petition for personal injury filed by Mr. Sam Leroy Tobin against Mr. Lester Terry Williams; his wife’s homeowners insurer Commercial Union Insurance Company; and Mr. Williams’ automobile insurer, American Employers (sic) Insurance Company.
It seems that on November 7 (sic) 1978, at aprroximately (sic) 8:00 P.M., Mr. Williams, along with a friend, John Wheat, drove to Mr. Tobin’s residence on Wood-yard Drive in Natchitoches.
According to Mr. Williams’ testimony, the purpose of this visit was to discuss with Mr. Tobin the matter of a promissory note at the Bank of Coushatta which was in plaintiff’s name, and which Mr. Williams had co-signed. Apparently, Mr. Tobin was behind in his payments on the note, and Mr. Williams had received a delinquent notice.
Mr. Williams’ testimony reveals that he, along with his passenger, Mr. Wheat, , drove in his pick-up into plaintiff’s driveway and blew the horn for plaintiff to come out, which he did; dressing (sic) in pajamas and shirtless.
Mr. Williams had in his possession a .357 magnum pistol which was lying on the truck seat and which he testified he carried with him at all times for ‘protection’.
The two men exchanged small talk for a few minutes and then got down to the business of the delinquent note, and a heated argument ensued.
At this time, Mr. Williams was still behind the wheel of the truck, while the plaintiff was outside the window on the driver’s side. When Mr. Williams could no longer restrain his anger, he shoved the door open, pushing plaintiff backward, and ‘automatically reached for his pistol’.
He testified that his intention in grabbing the pistol was to ‘keep him off me’, since Mr. Tobin was a big man and he was afraid of him. Mr. Williams said he felt the barrel of the gun move downward and then it went off. He swore that he never aimed it, has no recollection of pulling the trigger, and had no intention of shooting plaintiff.
He further testified that at the time the gun discharged, he had both feet on the ground and was completely free of the vehicle, and did not strike the vehicle prior to the discharge.
Williams then saw that the bullet had struck Tobin and asked him if he needed an ambulance. He replied, ‘No’, and Williams drove away to Shamrock Liquor Store, called the police and told them what he had done, went to his mother’s house to change clothes, then called the Sheriff’s Office and went in and turned himself in.”

The issues on appeal are: (1) was the bodily injury sustained by plaintiff “either expected or intended from the standpoint of the insured”; (2) did the injury arise out of the use of Williams’ automobile; (3) is the general damage award excessive; and, (4) did the trial court err in refusing to award damages for lost wages.

DID THE TRIAL COURT ERR IN DISMISSING PLAINTIFF’S SUIT AS AGAINST COMMERCIAL?

The trial court dismissed plaintiff’s suit against Commercial finding applicable an exclusionary clause in Commercial’s policy which reads as follows:

“This policy does not apply:
1 Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others
f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured.”

On appeal Williams contends that the exclusionary clause does not apply because he did not intend to shoot Tobin. We agree with the learned trial judge that under the particular facts of this ease the exclusionary clause applies.

That the bodily injury which Williams inflicted on Tobin was either “expected or intended from the standpoint of the insured” may be inferred from the circumstances when one considers the purpose of Williams visit to Tobin and the ensuing events which occurred after his arrival at the Tobin home. As stated by the trial judge:

"... Mr. Williams drew a loaded .357 magnum pistol, and thrust it in the direction of the plaintiff, causing it to discharge. Given this conduct, any reasonable person would have to conclude that injuries were almost certain to result from such a dangerous course of action. A person who points a loaded pistol at someone and pulls the trigger should not be absolved from liability simply by claiming: T only meant to scare him.’”

As set forth in Prosser, Law of Torts (West 1964, pg. 32):

“Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does .... The practical application of this principle has meant that where a reasonable man in the defendant’s position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he intended it.

The circumstances of the instant case are not unlike those present in Freeman v. Bell, 366 So.2d 197 (La.App. 2nd Cir. 1978). In Freeman, supra, the plaintiff and the defendant, a doorman at a bar, were engaged in an altercation when the doorman pulled out a gun which discharged as they wrestled, injuring the plaintiff. The defendant testified that he had no intention of shooting the plaintiff but only intended to scare him. Our brethren of the 2nd Circuit nonetheless held that an intentional tort was committed, reasoning:

“Nevertheless, the doorman's aggressive action in pulling a loaded pistol out'of his pocket supports a conclusion that he intended the result which was almost certain to follow. Monk v. Veillon. 312 So.2d 377 (La.App. 3rd Cir. 1975); Kipp v. Hurdle. 307 So.2d 125 (La.App. 1st Cir. 1975)... ”

Similarly, we determine that Williams’ aggressive action in pulling out his loaded pistol and pointing it in the direction of Tobin supports the trial court’s conclusion that he either “expected or intended” to inflict bodily injury on Tobin. .

Plaintiff-appellee’s reliance on our decision in Rambin v. Wood, 355 So.2d 561 (La.App. 3rd Cir. 1978) is misplaced. The case of Rambin, supra, is factually inappo-site. In Rambin, supra, as in Sherwood v. Sepulvado, 362 So.2d 1161 (La.App. 2nd Cir. 1978), considering the slight force used by the aggressor, the courts found the requisite intent to injure lacking.

DID THE TRIAL COURT ERR IN DISMISSING PLAINTIFF’S SUIT AS AGAINST AMERICAN?

The trial court determined that the injury to Tobin did not arise out of the “ownership, maintenance, or use, including loading and unloading” of the insured vehicle and therefore no coverage was provided by the American policy. Appellant and plaintiff-appellee contend otherwise urging that since the pistol discharged as Williams exited the truck it is an occurrence “arising out” of the use of the truck.

The learned trial judge correctly disposed of this issue. In his written reasons for judgment the trial judge stated:

“The Louisiana Supreme Court, in Fertit-ta v. Palmer. 252 La. 336, 211 So.2d 382 [282] (1968) probably said it best when they held that the Court of Appeal, in denying that certain actions constituted 'use' of the automobile, properly used a ‘common sense’ approach.
The Court went on to say:
‘The approach (common sense) thus followed will avoid, in future cases, ... possible absurd results...’ (id., 211 So.2d at pg. 285).
Using this ‘common sense’ approach, along with the two-fold test set out in Bruno v. Hartford Accident and Indemnity Company, et aL 337 So.2d 241 (La. App., 3rd Cir., 1976) and Ramsev v. Continental Insurance Company. 286 So.2d 371 (La.App., 2nd Cir., 1973), i. e.:
‘(1) Was the vehicle being used at the time of the accident; and (2) Was the use thereof directly connected with or a cause of the ensuing accident.’,
it seems that even the most imaginative among us would be inclined to agree that there was not a sufficient causual (sic) relationship existing between the truck and the injury, for the injury to be interpreted as ‘arising out of’ or being ‘directly connected with’ the use, ownership, or maintenance of the truck.
The fact that Mr. Williams was getting out of the truck or had gotten out of it at the time the shot was fired was purely incidental to the resulting injuries.”

QUANTUM

Appellant’s contention that the damage award in the instant case is excessive can be disposed of summarily. Although plaintiff had fully recovered from the effects of his injury by June of 1979, except for severe scarring in the area of his groin, the record reflects that he was hospitalized, underwent surgery, was totally incapacitated and suffered much pain for a considerable period of time. Although the award is generous we find that it is within the much discretion accorded the trier of fact.

We likewise reject plaintiff-appel-lee’s contention that the trial court erred in not awarding lost wages allegedly resulting from his injuries. To support an award for this type of damages, the plaintiff must prove his loss with reasonable certainty. Speculation and probability cannot form the basis for an award. Watson v. Hartford Acc. & Indemnity Co., 339 So.2d 480 (La. App. 2nd Cir. 1976), writ refused, 341 So.2d 1124 (La.1977); Burrows v. Louisiana State Department of Highways, 319 So.2d 867 (La.App. 3rd Cir. 1975); Wilson v. MaGee, 359 So.2d 315 (La.App. 4th Cir. 1978). To-bin was unemployed at the time of his injury. He stated that he was thinking of applying for a job but had not yet done so. Under the circumstances, it was not clearly wrong for the trial court to refuse to award damages for lost wages.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the defendant-appellant, Lester Terry Williams.

AFFIRMED.

      . The trial court awarded plaintiff $25,000.00 in general damages and special damages in the amount of $5608.61.

      . John Wheat did not testify on trial of this matter. There is no specific explanation in the record for the failure of Wheat to testify other than the following remark by the trial judge which appears at page 192 of the transcript:
      “John Wheat ... You’ll have to catch him. He’s in and out of this area and if you need the power of this Court to summon him in, if you do it in proper order, the Court will be glad to assist you...”

      .Williams testified that he kept his pistol loaded at all times and when he decided to visit Tobin on the evening of November 7, 1978 he walked into his bedroom, “got my pistol, and walked out”.


author: LABORDE, Judge.

text:
    William C. ROBERTS, Plaintiff-Appellant, v. STATE of Louisiana, THROUGH the LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION et al., Defendants-Appellees.
    No. 8033.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Writ Granted May 6,1981.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.
    Steven R. Giglio, Baton Rouge, for defendants-appellees.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

In this tort suit, William C. Roberts sued to recover damages for injuries he sustained in an accident in the lobby of the U. S. Post Office Building in Alexandria, Louisiana. Roberts fell after being bumped into by Mike Burson, the blind operator of the concession stand located in the building.

Plaintiff sued the State of Louisiana, through the Louisiana Health and Human Resources Administration, advancing two theories of liability: respondeat superior and negligent failure by the State to properly supervise and oversee the safe operation of the concession stand. The stand’s blind operator, Mike Burson, is not a party to this suit although he is charged with negligence.

The trial court order plaintiff’s suit dismissed holding that there is no respondeat superior liability without an employer-employee relationship and that there is no negligence liability without a cause in fact showing.

We affirm the trial court’s decision for the reasons which follow.

On September 1, 1977, at about 12:45 in the afternoon, operator Mike Burson left his concession stand to go to the men’s bathroom located in the building. As he was walking down the hall, he bumped into plaintiff who fell to the floor and injured his hip. Plaintiff was 75 years old, stood 5'6" and weighed approximately 100 pounds. Burson, on the other hand, was 25 to 26 years old, stood approximately 6' and weighed 165 pounds.

At the time of the incident, Burson was not using a cane nor was he utilizing the technique of walking with his arm or hand in front of him.

Even though Burson was not joined as a defendant, his negligence or lack thereof is crucial to a determination of the State’s liability. Because of its importance, we begin with it.

Plaintiff contends that operator Mike Burson traversed the area from his concession stand to the men’s bathroom in a negligent manner. To be more specific, he focuses on the operator’s failure to use his cane even though he had it with him in his concession stand.

In determining an actor’s negligence, various courts have imposed differing standards of care to which handicapped persons are expected to perform. Professor William L. Prosser expresses one generally recognized modern standard of care as follows:

“As to his physical characteristics, the reasonable man may be said to be identical with the actor. The man who is blind ... is entitled to live in the world and to have allowance made by others for his disability, and he cannot be required to do the impossible by conforming to physical standards which he cannot meet ... At the same time, the conduct of the handicapped individual must be reasonable in the light of his knowledge of his infirmity, which is treated merely as one of the circumstances under which he acts ... It is sometimes said that a blind man must use a greater degree of care than one who can see; but it is now generally agreed that as a fixed rule this is inaccurate, and that the correct statement is merely that he must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind.” W. Prosser, The Law of Torts, Section 32, at Page 151-52 (4th ed. 1971).

A careful review of the record in this instance reveals that Burson was acting as a reasonably prudent blind person would under these particular circumstances.

Mike Burson is totally blind. Since 1974, he has operated the concession stand located in the lobby of the post office building. It is one of twenty-three vending stands operated by blind persons under a program funded by the federal government and implemented by the State through the Blind Services Division of the Department of Health and Human Resources. Burson hired no employees, choosing instead to operate his stand on his own.

Prior to running the vending stand in Alexandria, Burson attended Arkansas Enterprises for the blind where he received mobility training. In 1972, he took a refresher course in mobility followed by a course on vending stand training. In that same year, he operated a concession stand in Shreveport, his first under the vending stand program. He later operated a stand at Centenary before going to Alexandria in 1974 to take up operations there.

On the date of the incident in question, Mike Burson testified that he left his concession stand and was on his way to the men’s bathroom when he bumped into plaintiff. He, without hesitancy, admitted that at the time he was not using his cane, explaining that he relies on his facial sense which he feels is an adequate technique for short trips inside the familiar building. Burson testified that he does use a cane to get to and from work.

Plaintiff makes much of Burson’s failure to use a cane when traversing the halls of the post office building. Yet, our review of the testimony received at trial indicates that it is not uncommon for blind people to rely on other techniques when moving around in a familiar setting. For example George Marzloff, the director of the Division of Blind Services, testified that he can recommend to the blind operators that they should use a cane but he knows that when they are in a setting in which they are comfortable, he would say that nine out of ten will not use a cane and in his personal opinion, if the operator is in a relatively busy area, the cane can be more of a hazard than an asset. (Tr. 164) Mr. Marzloff further testified that he felt a reasonably functioning blind person would learn his way around his work setting as he does around his home so that he could get around without a cane. Mr. Marzloff added that he has several blind people working in his office, none of whom use a cane inside that facility. (Tr. 165)

Mr. Marzloff’s testimony is similar to testimony received from Guy DiCharry, a blind business enterprise counselor with the Blind Services Division. As part of his responsibilities Mr. DiCharry supervised the Alexandria vending stand providing him with an opportunity to observe Mike Burson in a work setting. He testified that Burson knew his way around the building pretty well and that like most of his other blind operators, he did not use a cane on short trips within the building. (Tr. 132-133) He added that he discussed the use of a cane on such short trips as these with some of his other blind operators but they took offense to his suggestions, explaining that it was their choice.

The only testimony in the record that suggests that Burson traversed the halls in a negligent manner was that elicited from plaintiff’s expert witness, William Henry Jacobson. Jacobson is an instructor in peri-pathology, which he explained as the science of movement within the surroundings by visually impaired individuals. Jacobson, admitting that he conducted no study or examination of Mike Burson’s mobility skills and that he was unfamiliar with the State’s vending program, nonetheless testified that he would require a blind person to use a cane in traversing the areas outside the concession stand. (Tr. 200) He added that a totally blind individual probably should use a cane under any situation where there in an unfamiliar environment or where a familiar environment involves a change, whether it be people moving through that environment or strangers moving through that environment or just a heavy traffic within that environment. (Tr. 202)

When cross examined however, Jacobson testified:

“Q. Now, do you, in instructing blind people on their mobility skills, do you tell them to use their own judgment in which type of mobility assistance technique they’re to employ?
A. Yes I do.
Q. Do you think that three (3) years is a long enough period for a person to become acquainted with an environment that he might be working with?
A. Yes I do.
Q. So you think that after a period of three (3) years an individual would probably, if he is normal . .. has normal mobility skills for a blind person, would have enough adjustment time to be ... to call that environment familiar?
A. Yes.
Q. That’s not including the fact that there may be people in and out of the building?
A. Right.
Q. Now is it possible that if he’s familiar with the sounds of the people inside a building that he may even at some point in time become so familiar with the people in an area, regular customers or what not that you could say that the environment was familiar, including the fact that there are people there, is that possible?
A. Uh ... I would hesitate to say that, in a public facility where we could not ... uh ... control strangers coming in.
Q. Well, let’s say that a business has a particular group of clients that are always there, perhaps on a daily or weekly basis. Now you’ve stated that a blind person sharpens his auditory skills in order to help him articulate in an area?
A. With instruction, yes.
Q. Right. Isn’t is possible that if he can rely on a fixed travel of a fixed type and number of persons that it’s possible that that is a familiar environment even though there are people there?
A. Only if they were the same people all the time and they know him, yes.”

Upon our review of the record, we feel that plaintiff has failed to show that Bur-son was negligent. Burson testified that he was very familiar with his surroundings, having worked there for three and a half years. He had special mobility training and his reports introduced into evidence indicate good mobility skills. He explained his decision to rely on his facial sense instead of his cane for these short trips in a manner which convinces us that it was a reasoned decision. Not only was Burson’s explanation adequate, there was additional testimony from other persons indicating that such a decision is not an unreasonable one. Also important is the total lack of any evidence in the record showing that at the time of the incident, Burson engaged in any acts which may be characterized as negligence on his part. For example, there is nothing showing that Burson was walking too fast, not paying attention, et cetera. Under all of these circumstances, we conclude that Mike Burson was not negligent.

Our determination that Mike Burson was not negligent disposes of our need to discuss liability on the part of the State.

For the above and foregoing reasons, the judgment of the trial court dismissing plaintiff’s claims against defendant is affirmed and all costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

      . The United States of America was also originally made defendant but was dismissed without prejudice early in this suit on motion of plaintiffs counsel.


text:
    Joe Edward STARK, II, Plaintiff-Appellant, v. TOWN OF MERRYVILLE et al., Defendants-Appellees.
    No. 8037.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Writ Refused May 1,1981.

      Offices of Thomas W. Sanders, L. Donald Foreman, Lake Charles and Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, for plaintiff-appellant.
    Stockwell & Associates, Robert W. Clements, Lake Charles, for defendants-appel-lees.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

This is a tort suit. The plaintiffs-appellants, Joe Edward Stark, Sr. and Joe Edward Stark, II sued the Town of Merryville, the Town of Merryville Police Department, Jack Melton Hennigan and Western World Insurance Company, insurer for the Town of Merryville, to recover damages for personal injuries received in a shooting incident on September 30, 1978. The trial court determined Deputy Marshall Henni-gan used reasonable force in defending himself against an attack by the Starks. Plaintiffs appeal. We affirm.

The defendant, Jack Hennigan, is a deputy marshall for the Town of Merryville, Louisiana. On September 30, 1978, at approximately 8:25 p. m., Hennigan became involved in an altercation with the Starks outside the rear of Blackmon’s Garage in Merryville. It resulted in the shooting of Joe Edward Stark, Sr. (Joe Ed) and his son, Joe Edward Stark, II (Joey). Both Starks suffered serious injuries.

The law is clear that an individual cannot recover damages for a battery if the evidence establishes that he was at fault in provoking the difficulty in which the injury complained of was received, unless it can be proved the person attacked used excessive force in defending himself. Duhon v. Delcambre, 365 So.2d 516 (La.App. 3rd Cir. 1978); writ refused, 368 So.2d 136 (La. 1979).

The standard employed in determining whether the force used by an officer is reasonable is that of an ordinary, prudent and reasonable man placed in similar circumstances. It is a factual issue. Several factors to be considered are the known character of the arrestee, the risks and dangers faced by the officer, the nature of the offense involved, the chance of the arres-tee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officer as compared to the arrestee, and the exigencies of the moment. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977).

About a week before the shooting, Hennigan gave Joey a ticket for drinking in public. Joey became very upset and refused to sign the ticket until Hennigan threatened to arrest him. Hennigan refused to allow Joey to drive since Joey appeared to be drunk. There is conflicting testimony as to whether Joey actually threatened to make Hennigan pay for giving him a ticket.

Each side presents a different version of the events which took place on the evening of September 30, 1978. The only eye-witnesses are the parties themselves.

Joe Ed, his wife and Joey were returning from a day spent helping a friend do some work at a camp on the Sabine River. Each of the men drank approximately five beers during the day and were drinking as they drove into town. The Starks lived in Mer-ryville and knew Hennigan.

Joey was driving as the Starks came into Merryville turning north on Highway 110 from Railroad Street. Highway 110 runs north and south being intersected by Railroad Street several blocks south of Black-mon’s Garage. Blackmon’s Garage is on the east side of Highway 110. Hennigan was parked facing south on the west side of Highway 110 near a service station north of Railroad Street.

Hennigan testified he went on duty at 8:00 p. m. on September 30, 1978. While parked at the service station, he saw Joey’s pickup truck turn onto Highway 110. Joey spun his wheels as he turned, failing to stop at the intersection. Hennigan turned on his patrol car’s flashing lights and called out to Joey to pull his truck over motioning to the parking area in front of City Hall. City Hall is south of Blackmon’s Garage on the same side of Highway 110. Joey answered him and proceeded down Highway 110 past City Hall pulling off the road to the rear of Blackmon’s Garage.

Hennigan by then was in his patrol car making a U-turn onto Highway 110 heading north. He intended to give Joey a ticket for reckless driving. Hennigan pulled the patrol car off Highway 110 stopping behind Joey’s pickup truck. It was dark at the rear of the garage so he left his headlights on. Joey got out of the pickup truck and bent over with his left hand in his pocket.

Hennigan got out of the patrol car carrying a flashlight in his right hand asking Joey, “What is wrong with you, son?” Joey answered, “I don’t know, by God, I must be crazy.” As Hennigan spoke to Joey, Joe Ed came around the truck. Hennigan told Joe Ed to talk to his son, when Joe Ed grabbed him around the neck saying, “Now you son-of-a-bitch, we have got you where we want you and we will straighten you out.” As they struggled, Hennigan tried to hit Joe Ed with the flashlight to free himself. Hennigan drew his pistol in an attempt to make the Starks back off. As he did so Joey ran up and grabbed the pistol and his arm with both hands. As the struggle continued the pistol discharged hitting Joey in the left leg. Joey fell to the ground.

Hennigan and Joe Ed continued to struggle and Hennigan intentionally fired the gun. The first shot went wild but the second shot struck Joe Ed in the lower left front side. Hennigan testified that he feared that if the Starks got him to the ground he would be beaten severely or possibly killed. He believed the attack was in retaliation for the ticket he gave Joey a week before.

At the time of the incident, Hennigan was forty-one years old, 5'7" tall and weighed 130-135 pounds. Due to an industrial accident, Hennigan had little use of his left hand. Missing was the thumb, middle finger and most of the index finger. Joe Ed was forty-five years old, 6' tall and weighed 180 pounds. Joey was twenty-three years old and approximately the same size as Hennigan.

Joe Ed testified that he never saw Henni-gan motion Joey to pull over or heard him call out as they drove down Highway 110. Nor did he see the red lights flashing on the patrol car. They pulled into the rear of Blackmon’s Garage so Joey could go to the bathroom. As Joey got out of the pickup truck, Hennigan pulled in behind them and started to talk to Joey. Joe Ed got out of the pickup truck to find out what was going on. He did not see a flashlight in Henni-gan’s right hand. Joe Ed went to Henni-gan and put his hand on Hennigan’s right shoulder. Hennigan appeared angry and slapped his hand away. Joe Ed turned away and walked toward the pickup truck. From about ten feet, Hennigan then shot him in the lower left back turning him around and knocking him to the ground.

Joey testified that Hennigan appeared to panic and he feared Hennigan was going to shoot his father again. So he grabbed the gun with both hands and began struggling with Hennigan. As they struggled, two more shots were fired. The second shot struck Joey in the left leg. He fell to the ground and crawled to his father’s side.

One of the first people to arrive at the scene was John Frusha. He saw the red lights flashing on the patrol car and went to see what was going on believing there might have been a break-in at the garage. Mrs. Stark was yelling at Hennigan and slapping him. He pulled her away and saw the Starks lying on the ground. Hennigan was standing motionless with his right arm stretched out holding the gun at his side. Mrs. Stark was unable to testify as to what occurred as she was in the pickup truck at the time of the shooting and was not watching.

The Starks were taken to Charity Hospital in Lake Charles, Louisiana. Dr. Joseph A. Pedone, a second year internal medical resident, assisted in the treatment of Joe Ed. Though he has no training in forensic medicine, Dr. Pedone while working for the Orleans Parish Coroner’s Office doing assistant pathology work examined over a hundred gunshot wounds. It was his opinion that the bullet entered Joe Ed from the front, though he did admit to some uncertainty because at the time he was more concerned with treating Joe Ed than determining how he was shot. Dr. Pedone’s testimony is in direct conflict with the Stark’s testimony that Joe Ed was shot in the back.

Several other witnesses were called to testify. Debbie Tucker, an off-duty deputy marshall who was talking to Hennigan shortly before the shooting, believed she saw Joe Ed and Hennigan fighting near the garage but she could not say how the shooting occurred. Rachel Sadler, a friend of Hennigan, testified to being out with Joey the evening before and upon seeing Henni-gan, Joey made a remark that he would get Hennigan for giving him the ticket. She was also with Debbie Tucker the night of the shooting but did not actually see the shooting.

Where the evidence is conflicting, the trial court’s reasonable evaluation of one set of witnesses as credible cannot be disturbed on review absent manifest error. Canter v. Koehring, 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The trial judge concluded that the Starks attacked Hennigan and that Hennigan used reasonable force in defending himself. Upon review of the record, there is sufficient evidence to support the trial judge’s conclusion.

The decision of the trial court is affirmed. Costs of this appeal are assessed to appellant, Joe Edward Stark, II.

AFFIRMED.

      . Since this case and # 8036, Stark v. Town of Merryville, et al, 396 So.2d 572, involved substantially the same issues, they were consolidated at trial. Thus we will discuss the issues only in the case # 8037, although a separate opinion is being handed down this day in # 8036.


text:
    Joe Edward STARK, Sr., Plaintiff-Appellant, v. TOWN OF MERRYVILLE et al., Defendants-Appellees.
    No. 8036.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Writ Refused May 1, 1981.

      Offices of Thomas W. Sanders, L. Donald Foreman, Lake Charles and Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, for plaintiff-appellant.
    Stockwell & Associates, Robert W. Clements, Lake Charles, for defendants-appel-lees.
    Before GUIDRY, CUTRER and LA-BORDE, Judges.
   LABORDE, Judge.

For the reasons this day assigned in the consolidated case of Stark v. Town of Merryville, et al, 396 So.2d 569 (La.App. 3rd Cir. 1981) (# 8037), the judgment of the district court in favor of defendants, Town of Merryville Police Department, Jack Melton Hennigan, Western World Insurance Company and Town of Merryville, and against plaintiff, Joe Edward Stark, Sr., rejecting all of plaintiff’s demands is affirmed. Costs of this appeal are assessed to appellant, Joe Edward Stark, Sr.

AFFIRMED.