text:
    STATE of Louisiana ex rel., Steven Ken SMITH v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 82-KH-1247.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re Steven Ken Smith applying for writ of habeas corpus. Parish of Terrebonne. No. 94681.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    State of Louisiana v. Bernadine COCO.
    No. 82-K-1480.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   Bernadine Coco, applying for writs of certiorari, prohibition and mandamus. Parish of Avoyelles. No. 49079.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Aubrey J. LECOMPTE.
    No. 82-K-1447.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   Aubrey J. LeCompte, applying for writ of certiorari. Parish of St. Martin. No. 42980.

Denied.


text:
    STATE of Louisiana v. Robert C. JONES.
    No. 82-K-1653.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re Robert C. Jones, applying for writ of certiorari (review), prohibition and mandamus. Parish of Rapides. No. J 6957.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana, ex rel., Mark RICHARDSON v. N. Burl CAIN/Warden Dixon Correctional Institute.
    No. 82-KH-1712.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re Mark Richardson, applying for writ of Mandamus, Parish of Orleans. No. 275-709.

Denied.


text:
    STATE of Louisiana, ex rel. Paul Douglas PETERSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 82-K-1715.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re Paul Douglas Peterson, applying for remedial and supervisory writs. Parish of Evangeline. No. 21315.

Writ denied.

CALOGERO, DENNIS and LEMMON, JJ., would grant the writ.


text:
    Doris R. SIMPKINS v. Larry LA GRAIZE, et al.
    No. 82-C-1718.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re Larry La Graize, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 12955. Orleans Parish.

Writ denied.


text:
    J. W. JOHNSON v. CHRYSLER LIFE INSURANCE COMPANY.
    No. 82-C-1725.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re J. W. Johnson, applying for remedial writs. Parish of Jefferson. No. 256-317.

Denied.


text:
    Allen J. ZITO v. NOLA OIL COMPANY, INC., Leonard H. Parker and XYZ Insurance Company.
    No. 82-C-1726.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re Allen J. Zito, applying for writ of certiorari. Parish of Orleans, Fourth Circuit Court of Appeal. No. 12849.

Denied.


text:
    STATE of Louisiana v. Donald TURNBOW.
    No. 82-K-1740.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   Donald Turnbow, applying for writ of review of certiorari. Parish of LaSalle, 28th Judicial District Court. No. 25827.

Denied.


text:
    STATE of Louisiana v. John W. FRANKS.
    No. 82-K-1757.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re John W. Franks, applying for writs of review. Winn Parish. No. 26968.

Denied.


text:
    A. J. LEE v. ADMIRAL INSURANCE COMPANY OF TEXAS, Southeastern Industrial Contractors, Inc., Leonard A. Brescher and Gary Briscoe.
    No. 82-C-1878.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re Admiral Insurance Company of Texas, applying for supervisory and remedial writs. Parish of St. Charles. No. 20022.

Granted and remanded to the trial court to act on the motion for reconsideration in the light of Bazley v. Tortorich, 397 So.2d 475 (La.1981).


text:
    STATE of Louisiana v. Perry H. STANFIELD.
    No. 82-K-1792.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re Perry H. Stanfield, applying for writ of certiorari. Parish of Ouachita. No. 38876.

Denied.

DENNIS, J., would grant the writ.


author: COVINGTON, Judge.

text:
    SUMMERS BROTHERS, INC., et al. v. Douglas W. BREWER, et al.
    No. 14679.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    On Rehearing May 25, 1982.
    W. Leonard Werner, Baton Rouge, for plaintiffs-appellants, Summers Bros., Inc., Leo G. Summers, and Leo M. Summers.
    James Earrier, Robert W. Williams, III, Baton Rouge, for defendant-appellant, A. J. Paul Fredrickson.
    A. J. Paul Fredrickson, Baton Rouge, pro se.
    Daniel J. Dziuba, Baton Rouge, for defendant-appellee, Aetna Life and Cas. Co.
    Douglas W. Brewer, Baton Rouge, pro se.
    Doris Gates Rankin, Baton Rouge, for defendant-appellant, Donald J. Mills.

      Donald J. Mills, Baton Rouge, pro se.
    LeRoy A. Hartley, Marvin Duke, New Orleans, for defendant-appellee, Richard Collier.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This action commenced as a petition for damages brought by Summers Brothers, Inc., Leo G. Summers and Leo M. Summers against Douglas W. Brewer, Donald J. Mills, A. J. Paul Fredrickson, II, Richard Collier, Gulf Coast Construction and Maintenance, Inc., and Aetna Casualty and Surety Company.

Plaintiff, Summers Brothers, Inc., is a Louisiana corporation domiciled in East Baton Rouge Parish, Louisiana, engaged in the business of leasing construction equipment. Leo G. Summers and Leo M. Summers are father and son and are the President and Secretary-Treasurer, respectively, of Summers Brothers, Inc.

Defendant, Douglas W. Brewer, prior to the matters giving rise to this lawsuit, was an acquaintance of plaintiffs. Brewer contacted plaintiffs and advised them Quinco Construction Company had a maintenance contract with Triad Chemical Company that it, Quinco, was about to lose. He told the plaintiffs he thought he could secure the maintenance contract with Triad, which contract would require the use of construction equipment. Brewer advised the plaintiffs that if he could secure the maintenance contract, it would be through a corporation which he would form and plaintiffs could lease equipment to the corporation and purchase stock in it. Brewer informed them that $1,250.00 would be needed to accomplish the foregoing. These funds were to be used to offset certain expenses, such as travel, but were to be primarily used for legal expenses in securing the contract and forming the corporation. He advised plaintiffs that if he were unsuccessful in securing the maintenance contract, the $1,250.00 would be returned to them.

Thereupon, on August 5, 1976, Summers Brothers, Inc. advanced the requested sum of money to Brewer. A few days later, Brewer advised plaintiffs that he had been successful in securing the contract with Triad. He presented to them a written maintenance contract, dated August 9, 1976, between Gulf Coast Construction and Maintenance, Inc. and Triad Chemical Company. This contract, in authentic form, purportedly had been executed by Triad Chemical Company through Lee Dowdy, its general manager, and by Gulf Coast through Brewer, its president, in the presence of two witnesses and defendant, Donald J. Mills, an attorney practicing law in Baton Rouge, in his capacity as a Notary Public. Plaintiffs accepted the contract as genuine because of its apparent authenticity.

Discussions then followed concerning plaintiffs purchasing stock in Gulf Coast. Leo G. Summers and Leo M. Summers delivered to Brewer $3,000.00 for the purchase of stock in this corporation. On the following day, Brewer returned with two stock certificates (75 shares of stock to each Summers) of Gulf Coast Construction Maintenance, Inc., one registered in the name of Leo G. Summers, and one in the name of Leo M. Summers. The certificates were signed by Douglas W. Brewer as president of Gulf Coast and by defendant, Mr. A. J. Paul Fredrickson, II, as its secretary-treasurer. Plaintiffs believed the stock certificates were genuine because of their apparent validity.

Discussions regarding the leasing of equipment by Summers Brothers to Gulf Coast for use by the latter in the performance of its contract with Triad then took place between Brewer and the Summerses. These discussions culminated in a written contract between Summers Brothers and Gulf Coast at a rental rate of $17,330.40 per month.

Summers Brothers owned some of the equipment called for by this lease, but not all. To fulfill its obligations under the contract, Summers Brothers leased equipment from Head and Engquist Equipment, Inc. for a term of one year. To further fulfill its obligations on the lease contract, Summers Brothers purchased eight welding machines. Brewer advised plaintiff that a friend of his, defendant, Richard Collier, owned welding equipment which was for sale. Several phone calls transpired between plaintiffs and Collier. An agreement was reached whereby Summers Brothers would purchase three of the welding machines for $3,600.00 and five of the machines, which were not in as good a condition as the first three, for $3,000.00.

Summers Brothers delivered a check to Brewer dated September 15, 1976, in the sum of $1,800.00 payable to the order of Richard Collier as a down payment on the three welding machines. Subsequently, Summers Brothers delivered to Brewer $4,800.00, $1,800.00 in a check dated September 21,1976, for the balance of the price on the first three machines and $3,000.00 in a check dated October 1, 1976, for the price of the remaining five machines, for payment to Collier.

While the foregoing was in progress, Brewer requested plaintiffs to loan him various funds. Believing him to be a business associate who had successfully secured a maintenance contract with Triad for Gulf Coast, who had assisted them in purchasing stock in Gulf Coast, and who had on behalf of Gulf Coast contracted with the Summers Brothers for the lease of equipment, and who was assisting in the purchase of welding equipment from Collier, Summers Brothers, on August 24, 1976, loaned to Brewer $580.00, and on September 28,1976, loaned him an additional $500.00. On October 1, 1976, Brewer delivered to Summers Brothers a check for $1,080.00 in repayment of these loans.

On October 4, 1976, plaintiffs contacted the law office of Fredrickson, seeking verification of the serial numbers of the welding equipment. Fredrickson verified the numbers as correct.

Shortly thereafter the check for $1,080.00, issued by Brewer in payment of the loans made to him, was returned because of insufficient funds. Plaintiffs then discovered the contract between Triad and Gulf Coast was a forgery; and that the stock certificates of Gulf Coast which they had purchased were invalid because Fre-drickson was not an officer of Gulf Coast despite his signature thereon as its secretary-treasurer. The welding equipment purchased from Collier was non-existent. Head and Engquist Equipment, Inc. sued the plaintiffs for the equipment leased to Summers Brothers, making it necessary for the plaintiffs to pay Head and Engquist $3,500.00. Because of the lease contract it had with Gulf Coast, Summers Brothers’ equipment was tied up for approximately one month, causing them to lose a month’s equipment rental.

Subsequently, the plaintiffs brought suit against the defendants as set out above. Judgment was rendered in favor of plaintiffs, as follows:

“IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein:
“1. In favor of Summers Brothers, Inc. and against Douglas W. Brewer in the sum of Twenty-six Thousand Two Hundred Sixty and 40/100 ($26,260.40) Dollars, together with legal interest thereon at the rate of seven (7%) per cent per annum from August 8, 1977, until paid;
“2. In favor of Summers Brothers, Inc. and against Douglas W. Brewer in the additional sum of Two Thousand Five Hundred and No/100 ($2,500.00) Dollars, together with legal interest thereon at the rate of seven (7%) per cent per annum from March 1, 1979, until paid;
“3. In favor of Leo G. Summers and against Douglas W. Brewer in the sum of One Thousand Five Hundred and No/100 ($1,500.00) Dollars, together with legal interest thereon at the rate of seven (7%) per cent per annum from August 8, 1977, until paid;
“4. In favor of Leo M. Summers and against Douglas W. Brewer in the sum of One Thousand Five Hundred and No/100 ($1,500.00) Dollars, together with legal interest thereon at the rate of seven (7%) per cent per annum from August 8, 1977, until paid;
“5. In favor of Summers Brothers, Inc., Leo G. Summers, and Leo M. Summers and against Douglas W. Brewer in the additional sum of Four Thousand and No/100 ($4,000.00) Dollars for application on their attorney fees in this matter, together with legal interest thereon at the rate of seven (7%) per cent per annum from February 5,1981, until paid;
“6. In favor of Summers Brothers, Inc., Leo G. Summers and Leo M. Summers and against Douglas W. Brewer, A. J. Paul Fredrickson, II, Donald J. Mills, and the latter’s surety company, the Aetna Casualty & Surety Company of Hartford, Connecticut, in solido, in the sum of Eleven Thousand Eight Hundred and No/100 ($11,800.00) Dollars, with the liability of the Aetna Casualty & Surety Company of Hartford, Connecticut limited to the principal sum of One Thousand and No/100 ($1,000.00) Dollars, which is the amount of its surety bond with Donald J. Mills, together with legal interest thereon on the aforesaid sum of Eleven Thousand Eight Hundred and No/100 ($11,800.00) Dollars at the rate of seven (7%) per cent per annum from August 8, 1977 until paid;
“7. In favor of Summers Brothers, Inc., Leo G. Summers and Leo M. Summers and against Richard Collier in the sum of Three Hundred and No/100 ($300.00) Dollars, together with legal interest thereon at the rate of seven (7%) per cent per annum from August 8, 1977 until paid;
“8. Fixing the amount of the expert witness fee of Robert G. Foley in the sum of One Hundred Fifty and No/100 ($150.00) Dollars and assessing the same as court costs;
.“9. In favor of Summers Brothers, Inc., Leo G. Summers and Leo M. Summers and against the defendants, Douglas W. Brewer, A. J. Paul Fredrickson, II, Donald J. Mills, and Richard Collier for all costs of court as follows:
A. Douglas W. Brewer, 72% of court costs
B. Douglas W. Brewer, A. J. Paul Fredrickson, II, and Donald J. Mills, in solido, 27% of court costs
C. Richard Collier, 1% of court costs.”

The lower court also dismissed the recon-ventional demand by Fredrickson.

In reaching its decision, the trial court assigned oral reasons for judgment, as follows:

“BY THE COURT:

“This is suit number 204,486, on the docket of the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge, State of Louisiana, case styled Summers Brothers, Incorporated, et al versus Douglas M. [W.] Brewer, et al.

“The Coúrt would like to say at the outset that it has been called upon to render decisions in numerous cases in its time on this bench. Some of the decisions that it has had to make have been rather distasteful. This one today falls in the category of distasteful to this Court because it involves two members of the bar of East Baton Rouge Parish and the State of Louisiana, one of which has been practicing law since 1968 and the other since 1972. Those gentlemen to whom I refer are therefore not novices in the practice of law.

“This matter involves the negotiations with the Summers Brothers, Incorporated and/or Mr. Leo G. and Mr. Leo M. Summers, a father and son who are President and one of the principal stockholders in Summers Brothers, Incorporated, in their dealings with a[n] admitted felon, Douglas W. Brewer, who is at the present time serving time for a felony theft arising out of this exact matter that is the subject of this litigation. And Mr. Brewer, on the witness stand, by his own admission, has been one of the best ‘con men in the business’, with which this court completely agrees.

“Sometime in the middle part of 1976 Brewer concocted a scheme whereby he intended to rig a purported contract between Triad Chemical Company and Gulf Coast Construction & Maintenance, Inc., a corporation that he intended to form for the purpose of perpetrating a fraud on any or anybody that was available for perpetration of such a fraud and he chose as his selected target Summers Brothers, Incorporated to carry out his scheme.

“A contract between Triad and Gulf Coast, prior to the time of this negotiation with the — about the contract, a corporation was started up by Mr. Paul Fredrickson, attorney at law, — A. J. Paul Fredrickson, II, prepared the incorporation papers. Brewer then drew up a contract between Triad Chemical Company and Gulf Coast, Brewer’s Construction & Maintenance Corporation just formed recently, on this contract, forged the signatures of Mr. Lee Dowty as a representative of Triad. Mr. Dowty’s signature having been forged by his own admission, by Douglas Brewer, as well as one of the witnesses, Mr. William J. Braud, who was another employee of Triad Chemical Company, and presented to Mr. Donald J. Mills, a Notary Public of East Baton Rouge Parish, so that the same might be notarized. The only actual signatures as far as this court can determine that were on that document were that of Terry Nelson, a part-time secretary in the office of Mr. Fredrickson, who had on occasion accommodated Mr. Mills by acting as a witness on documents. According to her testimony she only remained in the office for approximately one week — -Douglas Brewer and Donald J. Mills.

“According to the testimony of Mr. Robert G. Foley, a handwriting expert, there’s no question that the name of Lee Dowty, the last name of which incidentally was misspelled, was a forgery. This was admitted by Brewer. It was also his testimony that in his opinion, the signature of Mr. Braud, one of the witnesses to the document, was also a forgery. There’s no question in the court’s mind that the signature of Donald J. Mills, who acted as Notary on this document, is genuine. There is also no question in the court’s mind that Mr. Mills affixed his signature and his notary seal after all the signatures had been affixed thereto and this is not in accordance with the law and the jurisprudence of this state.

“There is a third named — a fourth named defendant, if you’re counting Brewer who’s already stipulated his liability here, and that is Mr. Richard Collier. Something that Mr. Collier’s got going for him that cannot be said of the other two defendants is that at the time of his involvement in this matter he was not a lawyer, he was not a business man, but was a student residing in the same complex with Mr. Douglas Brewer. He, nevertheless, is involved in it.

“There were some stock certificates issued from the corporation to the two Summers’ [sic], Mr. Leo G. and Mr. Leo M., for seventy-five (75) shares of stock to each. And to his credit, in his testimony, Mr. Fredrickson said, T don’t know why I let him do it, but I did sign as Secretary-Treasurer of that corporation,’ knowing that he was not Secretary of that corporation, and the Court will not hear the argument that he could have gotten up a resolution to the effect that he was made Secretary-Treasurer. As a matter of fact, he was not made Secretary-Treasurer, and when Mr. Brewer presented the stock certificates to him he signed with full knowledge that he was dealing with a known felon. Where he got the stock certificates, Brewer himself said he got them out of the drawer of Mr. Fre-drickson’s law office. For whatever purposes, Mr. Fredrickson made his office space and that of Mr. Mills available to a known felon for whatever activities he chose to engage in, use in that bases and operation — that base of operation.

“Relying on the documents notarized by Mr. Mills, the stock certificates issued by Mr. Brewer who filled them out himself, signed his name as President of the corporation and had Mr. Fredrickson join him as the Secretary-Treasurer of the corporation, presented them to the Summers’ [sic], collected money for the stock certificates— talking about Brewer, not Fredrickson.

“Now, as far as the business of the— there was some testimony to the effect that some Twelve Hundred and Fifty Dollars ($1250.00) was advanced by Summers to Brewer prior to the time that they became aware of the fact that there was a notarized contract or bogus — those stock certificates that had been issued, well that’s Twelve Hundred and Fifty Dollars ($1250.00) the Summers [sic] threw away, because they didn’t have any business giving him any start-up money to go down there and tell those people what he was doing and allegedly to tell them what— that — for travel expenses and under the table business. So you can forget that Twelve Hundred and Fifty Dollars ($1250.00).

“But when they started to rely on those documents that had been executed by or in the presence of these other defendants, the Court takes a different approach to that. Now, there’s been a good deal said about whether or not there was actual fraud involved in this matter as far as Mr. Fredrick-son and Mr. Mills were concerned. The Court will say, categorically at the outset, that it does not believe that Paul Fredrick-son and Donald Mills engaged in active fraud or a scheme designed to deprive Summers Brothers of their money. The Court does, however, feel that there is an area that it chooses to call ‘gray’, into which they did become involved to an extent that relying on the documents that were either signed by them or in some other way to which they attached their signatures and upon which the Summers Brothers relied on the dealings with a known felon, Douglas W. Brewer, then they did get involved in this matter.

“Now, the Reconventional Demand filed on behalf of Mr. Paul Fredrickson has been dismissed as far as this lawsuit is concerned. So this Court is not called upon — is not concerning itself with any action he might have as far as fraud is concerned. The Court is relying on the belief that on the pleadings filed herein, that as far as their involvement to the extent that the Summers Brothers were deprived of cash money out-of-pocket, on reliance on these documents, that we’re talking about here this morning, that they very well might be involved as far as constructive fraud is concerned.

“As the Court has said, Brewer has individually entered into a Stipulation of liability — where is that Stipulation? That’s Fre-drickson-1. And that Stipulation entered in — by—in—entered into the record as Fre-drickson Number-1, which is a copy of that Stipulation, the Court will now read that Stipulation and make it the judgment of this Court.

“ ‘It is hereby stipulated and agreed by and between Summers Brothers, Incorporated, Leo G. Summers and Leo M. Summers, Plaintiffs in the above numbered and entitled cause, and Douglas W. Brewer, one of the Defendants in the above numbered and entitled cause, as follows:

“ ‘That there be judgment herein in favor of Summers Brothers, Incorporated and against Douglas Brewer in the sum of Twenty-Six Thousand, Two Hundred Sixty Dollars and Forty Cents ($26,260.40), together with legal interest thereon at the rate of seven percent (7%) per annum from August 8th, 1977, until paid.

“ ‘2. That there be judgment herein in favor of Summers Brothers, Incorporated and against Douglas W. Brewer in the additional sum of Two Thousand, Five Hundred Dollars ($2,500.00), which is the amount Summers Brothers, Incorporated paid to Head & [sic] Engquist, Incorporated, together with the legal interest thereon at the rate of seven percent (7%) per annum from March 1st, 1979, until paid.

“ ‘3. That there be judgment herein in favor of Leo G. Summers and against Douglas W. Brewer in the sum of One Thousand, Five Hundred Dollars ($1,500.00), together with legal interest thereon at the rate of seven percent (7%) per annum from August 8th, 1977, until paid.

“ ‘That there be judgment herein in favor of Leo M. Summers and against Douglas W. Brewer in the sum of One Thousand, Five Hundred Dollars ($1,500.00), together with legal interest thereon at the rate of seven percent (7%) per annum from August 8th, 1977, until paid.

“ ‘5. That there be judgment herein in favor of Summers Brothers, Incorporated, Leo G. Summers and Leo M. Summers and against Douglas W. Brewer in the sum of Four Thousand Dollars ($4,000.00) for application of their attorney fees in this matter, together with legal interests thereon at the rate of seven percent (7%) per annum from date of judgment for said sum until paid.

“ ‘6. That there be judgment herein in favor of Summers Brothers, Incorporated, Leo G. Summers and Leo M. Summers and against Douglas W. Brewer for all costs of these proceedings. That Summers Brothers, Incorporated, Leo G. Summers and Leo M. Summers, preserve all of their rights, claims and causes of actions against the other defendants in this law suit.

“ ‘That a judgment in accordance with this stipulation and agreement may be rendered and signed by the Court upon presentation of this stipulation to the Court without prior notice to any of the parties hereto, the parties hereto expressly waiving their presence, the hearing of this matter, and the rendention [sic] and signing of this judgment.’

“It is therefore the judgment of this Court that that Stipulation entered into by and between these parties and signed on the respective date shown on the Stipulation included herein is made the judgment of this Court to the extent that Douglas W. Brewer, defendant, is involved.

“According to the Court’s calculations, according to the Stipulation, Mr. Brewer’s involv[e]ment is for the total sum of Thirty-One Thousand, Seven Hundred Dollars ($31,700.00).

“It comes now to the involvement of Brewer, Fredrickson, and Mills, in solido, with regards to the activities that involve Mr. Fredrickson and Mr. Mills. According to the Court’s calculations, the involvement of those two men in the securing by Brewer of money out of the pockets of the Summers Brothers, Incorporated and/or Leo G. and Leo M. Summers, is to the extent of Eleven Thousand, Eight Hundred Dollars ($11,800.00), which is broken down as follows: Three Thousand Dollars ($3,000.00) for the stock which is shown at P-6; a payment of Fifteen Hundred Dollars ($1500.00) for welding equipment shown at P-9. And at this point is where Mr. Collier comes into the picture because the check was actually issued for Eighteen Hundred Dollars ($1800.00), Three Hundred Dollars ($300.00) of which went to Richard Collier, the other Fifteen Hundred Dollars ($1500.00) to Mr. Brewer. P-10 shows the payment of Eighteen Hundred Dollars ($1800.00) for welding equipment, and a final check in the amount of Three Thousand Dollars ($3,000.00) shown at P-11, the final payment on that welding equipment. An additional sum of Twenty-five Hundred Dollars ($2500.00) based on a negotiated deal with Head & [sic] Engquist Equipment Company which resulted in a law suit against Summers Brothers, Incorporated and/or Leo M. or Leo G. Summers in the amount of Twenty-five Hundred Dollars ($2500.00), making a total of Eleven Thousand, Eight Hundred Dollars ($11,800.00).

“For the amount of Eleven Thousand, Eight Hundred Dollars ($11,800.00) there will be judgment herein in favor of the plaintiffs and against defendants, Brewer, Fredrickson and Mills, in solido, for that amount.

“It is the further — to be the judgment of this Court that there be judgment herein, in solido, between Donald J. Mills and his surety company, the Aetna Casualty & Surety Company of Hartford, Connecticut, in the amount of One Thousand Dollars ($1,000.00), being the amount of his surety bond as shown in the exhibits filed in this suit.

“The court costs, including the expert witness fee of Robert G. Foley in the amount of A Hundred and Fifty Dollars ($150.00), is to be borne by the defendants in the percentages set out as follows: Douglas M. Brewer — Douglas W. Brewer, individually, seventy-two (72%) percent; Brewer, Fredrickson and Mills, in solido, twenty-seven (27%) percent; — ...

“ — Collier, individually, one (1%) percent. All judgments rendered by this Court this date are to bear judicial interest from date of judicial demand, August 8, 1977.

“Now, with respect to Mr. Collier, individually, there will be judgment herein in favor of plaintiffs and against Richard Collier in the amount of Three Hundred Dollars ($300.00). That amount to bear judicial interest from date of judicial demand, August 8, 1977, until paid and his pro rata share of the costs as pointed out previously.”

We have carefully reviewed the record, and find that the evidence amply supports the findings of the trial court. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We find no merit in the contentions of Donald J. Mills that his acts as notary public were not a proximate cause of the plaintiffs’ financial losses as set out above, or that he was not guilty of “constructive fraud”, as suggested by the trial court.

Mills and Fredrickson have taken an appeal from'the judgment of the District Court. Plaintiffs, Summers Brothers, Inc., Leo G. Summers, and Leo M. Summers, have answered these appeals, and have also taken an appeal from the judgment. Douglas W. Brewer, Richard Collier, and Aetna Casualty and Surety Company have neither appealed nor answered the appeal. We affirm.

It is settled that deliberate misfeasance of a notary public occurring during the course of his official notarial duties will subject the notary to liability for all damages sustained by the aggrieved party which are proximately caused by the misfeasance. See Annot., Liability of Notary Public or his Bond for Wilful or Deliberate Misconduct in Performance of Duties, 44 A.L.R.3d 1243. A notary is responsible to all persons who have been defrauded of their money as a consequence of their reliance upon the genuineness of any document executed by the notary public while in the performance of his official duties. See Lacour v. National Surety Co. of New York, 147 La. 586, 85 So. 600 (1920); Harz v. Gowland, 126 La. 674,'52 So. 986 (1910); Rochereau v. Jones, 29 La.Ann. 82 (1877).

In Rochereau, supra, the decision rested on the fact that the notary’s paraph of promissory notes was a deception and fraud, because the notary knew that the purported identification of the notes with a mortgage was a fraud. The same in substance is the present case, as far as Mills is concerned. Even if Mills did not know that the signatures oh the contract were forgeries, he knew that by authenticating the document, as notary, he was telling the world that the parties had appeared before him and affixed their signatures in his presence. Thus, he committed fraud in that he purposely let third parties rely on a document purporting to be genuine but actually without validity as an authentic act. The “proof” of validity he supplied was misleading to all who relied on the contract.

The plaintiffs on appeal argue that the judgment should have been in favor of the plaintiffs against all defendants, in solido, instead of just certain defendants, or the defendants severally, and that costs should also have been against all defendants, in solido. We disagree.

In order for solidary liability to exist, Brewer and each of the other defendants (Mills and Fredrickson) would have to be considered joint tortfeasors or joint wrongdoers under LSA-C.C. art. 2324. We find, as did the trial court, that this codal article has no application to the instant case. The various acts of which the defendants are accused were independent acts, with the fraudulent scheme of Brewer already set in motion before Mills and Fre-drickson participated in the fraud. Furthermore, some of the damages caused to plaintiffs by Mills and Fredrickson were not the natural and foreseeable consequences of the earlier fraudulent acts of Brewer, but were rather the result of particular wrongdoing or fault on the part of Mills, as notary, or Fredrickson, as one pretending to be an officer of the corporation. See Weber v. McMillan, 285 So.2d 349 (La.App. 4 Cir. 1973), writs denied, 288 So.2d 357, 358 (La. 1974).

As to the plaintiffs’ complaint against the taxing of costs, LSA-C.C.P. art. 1920 authorizes the trial court to “render judgment for costs, or any part thereof, against any party, as it may consider equitable.” We find no error in the trial court’s assessment of costs. Metalock Corporation v. Metal-Locking of Louisiana, Inc., 260 So.2d 814 (La. App. 4 Cir. 1972), writs denied, 262 La. 189, 262 So.2d 788 (La.1972).

The plaintiffs’ assignment of error pertaining to the trial judge’s refusal to allow the plaintiffs to produce expert witnesses on the question of the reasonableness of the equipment rental rates is without merit. There was evidence in the record adequate for the trial court to properly consider this element of damages in his award. There was no reason for expert testimony on this item of damages. Moreover, the witnesses which plaintiffs sought to call on the trial as “expert witnesses” were listed on the pre-trial order as “fact witnesses.” Calling a fact witness on the trial as an “expert witness” is not in compliance with the pre-trial order. If error were committed, it was harmless, and had no effect on the trial court’s judgment.

Accordingly, for the assigned reasons, we affirm the judgment appealed at the costs of appellants, Donald J. Mills and A. J. Paul Fredrickson, II.

AFFIRMED.

ON REHEARING

PER CURIAM.

In our original decision, we affirmed the judgment of the trial court, which had the effect of fixing the interest allowed to petitioners at the rate of seven per cent per annum from August 8, 1977, the date of judicial demand, until paid. Our attention has been directed to LSA-C.C. art. 2924, as amended by Act 574 of 1981, in the application for rehearing on behalf of Summers Brothers, Inc., Leo G. Summers, and Leo M. Summers, and we have granted this application, on briefs previously filed, solely to consider the question of interest.

In view of LSA-C.C. art. 2924, as amended, we correct our judgment to amend the judgment of the trial court in the following respects:

The interest shall be seven per cent (7%) per annum from August 8,1977, the date of judicial demand, until September 12, 1980; ten per cent (10%) per annum from September 12, 1980 until September 11, 1981; and twelve per cent (12%) per annum from September 11, 1981 until paid.

We deny the application for rehearing on the other questions presented therein, and affirm the judgment of the trial court in all other respects, at the costs of appellants, Donald J. Mills and A. J. Paul Fredrickson, II.

AMENDED AND, AS AMENDED, AFFIRMED.


author: SCHOTT, Judge. PER CURIAM.

text:
    Leroy BROWN v. CELOTEX CORPORATION and Aetna Casualty Co.
    No. 13237.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1982.
    Rehearing Denied Oct. 22, 1982.

      Eugene J. Gomes, Jr., New Orleans, for plaintiff-appellant.
    Darryl J. Foster, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for defendants-appellees.
    Before SCHOTT, KLEES and LOBRA-NO, JJ.
   SCHOTT, Judge.

In this worker’s compensation case the extent of plaintiff’s disability is the principal issue. He has appealed from the judgment of the trial court awarding benefits for partial disability under LSA-R.S. 23:1221(3) contending that he is entitled to benefits for permanent total disability under § 1221(2). The defendants, his employer and the employer’s insurer, have answered the appeal seeking a limitation of recovery to that for a scheduled disability for the loss of an arm under § 1221(4)(f). Plaintiff also seeks penalties and attorney fees based upon defendants’ arbitrary and capricious termination of compensation benefits, and defendants contend that an award of $254 of medical expense incurred by plaintiff with Dr. Gordon Nutik was improperly awarded to plaintiff.

Plaintiff was employed by Celotex Corporation as a common laborer and suffered an injury on the job on February 17, 1977, when he fell down and struck his left shoulder on a piece of metal. He was placed on maximum compensation from that time until September 15,1978, when the compensation was reduced to $30 per week where it remained until March 25, 1980, when compensation benefits were terminated. The first reduction was based on a report to defendants by Dr. R. E. Horn, Jr., who gave him a 20% partial, permanent disability of the left upper extremity at that time. The termination of benefits was based on a report of February 12, 1980, by Dr. R. C. Grunsten that there was no reason why plaintiff could not participate in daily laboring activities, although he might have some difficulty in full overhead elevation of the extremity with force.

Following his injury, plaintiff was treated by Dr. Horn, an orthopedic surgeon. He diagnosed a left shoulder cuff tear which he treated conservatively until March 15 when it was surgically repaired. Following a course of physiotherapy plaintiff was readmitted to the hospital where a closed manipulation under general anesthesia was performed on July 14 in order to free an adhesive capulitis or frozen shoulder which had developed. He was continued on physiotherapy and treatment by Dr. Horn. By November, 1977, he had shown some improvement but had marked limitation of motion of the left upper extremity demonstrated by his inability to abduct beyond 45° as compared to normal abduction of above 90°. When Dr. Horn next saw plaintiff in June, 1978, his range of motion was still limited in the left shoulder. Dr. Horn next saw plaintiff in January, 1979, and because of his continued difficulty transcu-taneous electrical nerve stimulation was started in order to relieve his pain. Dr. Horn last saw plaintiff in February, 1979, and found that no relief had been provided by the TENS and he periodically prescribed a mild pain medication for plaintiff thereafter.

Plaintiff was then seen by Dr. Grunsten on August 9, 1977, on referral by Dr. Horn who wanted a second orthopedic opinion because he thought plaintiff should have made more progress , than he seemed to have under his treatment. On this first examination of plaintiff, Dr. Grunsten found that he was still disabled and recommended continued physical exercise in order to restore the muscle in his upper arm. Dr. Grunsten next saw plaintiff on February 12, 1980, at the request of defendants. At that time plaintiff had complaints of pain in his neck on the left side as well as his right shoulder and low back. An orthopedic examination revealed no explanation for these complaints and when given tests for his left shoulder he reached a maximum elevation of 45° in abduction and maximum of 80° in anterior flexion. However, Dr. Grunsten explained that these tests are subjective with the patient being required to raise his arm to the extent he can. However, Dr. Grunsten noted that as plaintiff disrobed he pulled off an undershirt overhead and elevated his left shoulder well above 90° to approximately 110°. He also found that the forearm circumferences and arm circumferences were equal between the right and the left extremities which led Dr. Grun-sten to believe that plaintiff had regained the muscle that was missing on the first examination and had necessarily been using his upper extremity since the date of the last examination two and one half years before. This opinion was also reinforced by his finding of good muscle mass in the deltoid muscle region of each shoulder area as well as in the biceps regions bilaterally, and equal callus formation in both palms of his hands. From his examination Dr. Grun-sten concluded that there was no reason why plaintiff could not participate in daily laboring activities, and while he may have some difficulty in full overhead elevation of the extremity with force, he could accomplish the majority of routine activities without difficulty and without significant discomfort.

Plaintiff was also seen by Dr. Nutik, an orthopedist, first in July, 1979, on a referral by the Social Security Administration for disability evaluation. He concluded from his examination that plaintiff could not do heavy work of a common laborer at that time. On April 22, 1980, plaintiff was again examined by Dr. Nutik, this time at the request of plaintiff’s counsel, and he found that plaintiff’s condition was about the same. He concluded that plaintiff was totally disabled from heavy work with a 60% disability of the left shoulder. However, he acknowledged that the primary test to determine limitation of motion in plaintiff’s arm was subjective and asked whether his opinion would have been changed had he, like Dr. Grunsten, witnessed plaintiff raising his left arm above his head while removing his undershirt, he replied that “it would severely change my opinion during my exam and I would have maybe looked for different things.”

The trial court also had the benefit of a report from orthopedist, Dr. James T. Williams, who examined plaintiff on September 6, 1978, at the request of the Social Security Administration. Dr. Williams found that plaintiff was uncooperative and prevented him from obtaining an evaluation of the range of motion in his shoulder. He concluded that there was no orthopedic reason why plaintiff should not return to work.

The trial judge concluded that plaintiff did not prove by a preponderance of medical evidence that he could not work without substantial pain but the “totality of the evidence is sufficient to support a holding that plaintiff is permanently partially disabled, based in part on claimant’s testimony of pain and the conflict in medical testimony.”

We are confronted with a classic case requiring the trial judge to reach a factual conclusion based on conflicting testimony where the credibility of plaintiff is the crucial issue in the case. Although medical testimony is frequently based on objective tests given by the physicians each opinion here as to the extent of the disability in plaintiff’s left arm is based almost exclusively on the extent to which plaintiff can or will raise his arm when asked to do so by the examining physician. Dr. Grunsten’s testimony that plaintiff in fact elevated his arm at an unsuspecting time while he was disrobing was quite significant to both of the doctors who testified favorably to plaintiff’s case and provided a strong basis for supporting Dr. Grunsten’s opinion of limited disability as opposed to the other physicians’ opinion. Plaintiff testified at trial that he experiences terrible pain when he attempts to exercise the left shoulder area, and yet Dr. Grunsten found physical evidence that he had used his left arm and hand regularly for two and a half years before his second examination. Finally, plaintiff testified that the pain is so bad that it wakes him up from sleep during the night. Dr. Horn expressed doubt that his injury could cause that kind of pain. Thus, there is no manifest error in the trial judge’s conclusion that plaintiff failed to prove his case of total and permanent disability.

However, plaintiff contends that the limitations on his ability to work because of his inability to lift with force over his head places him in the category of an “odd lot” employee as in Lattin v. Hica Corp., 395 So.2d 690 (La.1981) and Oster v. Wetzel Printing Inc., 390 So.2d 1318 (La.1980). In these cases the court held that the plaintiff made out a prima facie case for classification in the odd lot category if he proved that his physical condition, mental capacity, education, training, age or other factors combined to place him at a substantial disadvantage in the competitive labor market. The odd-lot doctrine also applies if plaintiff can prove that he can function only with substantial pain and that such pain appreciably limits the type of work available to him and greatly diminishes his ability to compete in the labor market. Plaintiff did not carry his burden of proof to bring himself within the scope of the odd-lot doctrine. The trial court found, and the record supports this finding, that he exaggerated the extent of his disability and that he was able to perform the duties of a common laborer except for his inability to lift his arms over his head forcefully. There is no proof in the record that such a minor limitation would prevent plaintiff from competing in the labor market for the work of a common laborer.

As to defendants’ answer to the appeal its contention that the record does not support the award of partial disability benefits and that the benefits should be reduced to those applicable to a partial loss of the arm, we again defer to the trial court’s fact finding function and find no manifest error in his conclusion. However, the award to plaintiff of $254 for evaluations by Dr. Nutik was erroneous. Dr. Nu-tik did not treat plaintiff but only evaluated him, first at the request of Social Security and next at plaintiff’s counsel’s request. Such medical charges for evaluation are not chargeable to the compensation carrier, Turner v. J. & J. Wells Contractors, Inc., 396 So.2d 552 (La.App. 3rd Cir. 1981) writs refused, 399 So.2d 620.

Finally, the judgment of the trial court fails to give credit to defendants for the compensation they paid between February 12, 1977, and March 25, 1978, and judgment will be amended in this respect.

Accordingly, the judgment appealed from is affirmed but is amended to delete from the award to plaintiff the medical expense of $254 and to extend to defendants credit for all compensation paid between February 11, 1977, and March 25, 1980.

AFFIRMED AND AMENDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In his application for rehearing plaintiff renews his claim for penalties and attorney fees, alleging that defendants arbitrarily and capriciously terminated plaintiff’s benefits. In our original opinion we neglected to dispose of this issue although we mentioned it in the opening paragraph.

We detailed Dr. Grunsten’s findings and opinion that plaintiff was no longer substantially disabled as of a February, 1980 examination. Defendants were entitled to rely on that report in terminating compensation. Crawford v. Al Smith P & H Service, Inc., 352 So.2d 669 (La.1977). Unlike the “inconclusive” report relied on by defendant in Hutchinson v. T. G. & Y. Stores Co., 412 So.2d 708 (La.App. 3rd Cir. 1982) Dr. Grunsten’s report was comprehensive and emphatic in concluding that plaintiff “magnified” his complaints based on his personal observation of plaintiff elevating his shoulder to 110° while disrobing and his measurement of the circumference of plaintiff’s arms which demonstrated that he had been working with the allegedly handicapped arm. Testimony by Dr. Nutik at trial provided the trial court with a basis to conclude that defendants were justified in devaluating his opinion comparing it to Dr. Grunsten’s.

The question of entitlement to penalties and attorney fees is largely a fact question to be resolved by the trial court. We have concluded that there was no manifest error in the trial court’s refusal to impose them on defendants.

The rehearing is denied.

DENIED.


author: KLEES, Judge.

text:
    Mrs. Darryl SANTIAGO, Darryl Santiago, Individually and on Behalf of the Estate of his Minor Son, Calvin Lee Santiago v. EQUIPMENT LEASING OF CALIFORNIA, Car Clean Enterprises, Inc., Mr. Pride Car Wash, Texaco, and Jole, Inc.
    No. 12485.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1982.
    Rehearing Denied Oct. 20, 1982.

      Peter Frank Liberto, New Orleans, for plaintiff s-appellants.
    René A. Curry, Jr., P. C., New Orleans, for defendant-appellee Fidelity and Casualty Co. of New York.
    Before BARRY, KLEES, and LOBRA-NO, JJ.
   KLEES, Judge.

Plaintiff-Appellants, the surviving parents of a deceased minor, seek recovery in tort for the personal injuries and wrongful death of their son.

Defendant-Appellee, Fidelity and Casualty Company of New York filed a motion for Summary Judgment alleging that their policy of insurance issued to defendants Car Clean Enterprises, Inc., Mr. Pride Car Wash and others excluded any liability or responsibility to an employee arising out of and in the course and scope of his employment by the insured or to any obligation for which the insured may be held responsible under any workmen’s compensation laws.

The portions of the policy on which they base the allegations are as follows:

I. GARAGE LIABILITY
Coverage G — Bodily Injury Liability. ..
Exclusions
This insurance does not apply, under the Garage Liability Coverages:
(c) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation, unemployment compensation or disability benefits law, or under any similar law;
(d) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of the injury; but this exclusion does not apply to:
(1) any such injury arising out of and in the course of domestic employment by the insured unless benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or
(2) liability assumed by the insured under an incidental contract;
and,
Coverage J — Premises Medical Payments. ..
Exclusions
This insurance does not apply:
(a) under the Automobile Medical Payments Coverage, to bodily injury sustained by any employee of an insured under the bodily injury liability insurance arising out of and in the course of his employment by such insured;
(b) under the Premises Medical Payments Coverage, to bodily injury sustained by ...
(3)the named insured, or any partner therein or member thereof, or any employee of the named insured arising out of and in the course of his employment by the named insured;

The trial court granted defendant’s motion for summary judgment dismissing plaintiffs’ suit with prejudice with respect to defendant-appellee Fidelity and Casualty Company of New York only.

Plaintiffs appeal arguing that the District Court erred in granting summary judgment where there were genuine issues of material fact.

We agree and reverse.

The Mr. Pride Car Wash located at 4201 Old Gentilly Road is on property leased to the Press Drive Corporation by Jole, Inc. In January, 1978, Press Drive Corporation purchased the car washing equipment from Equipment Leasing of California. Press Drive Corporation owns the building and equipment at 4201 Old Gentilly Road.

A separate corporation, Car Clean Enterprises, Inc., manages the car wash, employs all of the workers and pays them.

Two minors, Calvin Santiago, age 16, and Jeffrey Bellamy, age 15, had been employed under an employment certificate for minors at Mr. Pride’s car wash. Some blue paint had spilled inside one of the storage rooms of the premises of the car wash at 4201 Old Gentilly Road. On Friday afternoon, April 13, 1979, Calvin Santiago’s time card was punched out at 6:02 p. m. The premises closed at 6:00 p. m.

At approximately 6:10 p. m. an accident occurred involving Jeffrey Bellamy and Calvin Santiago in which they went into one of the storage rooms purportedly to clean up some spilled paint with gasoline. Through some source of ignition, spontaneous combustion or some other cause, a fire and explosion occurred resulting in the death of both Jeffrey Bellamy and Calvin Santiago.

An examination of the pertinent allegations of appellant’s petition shows:

9.
Car Clean Enterprises, Inc. at all times pertinent herein was doing business as Mr. Pride Car Wash at the premises at 4201 Old Gentilly Road. Roger D. Seay is the president of Car Clean Enterprises, Inc. and Nick Porter was the Manager of the Mr. Pride Car Wash located at 4201 Old Gentilly Road at all times pertinent herein.
13.
At the time of the accident, Calvin Santiago, age 16, and Jeffery Bellamy, age 15, were told by the manager of Mr. Pride Car Wash, Nick Porter to clean up some blue paint which had spilled in the Products Storage and Machine Room in the building which housed the Car Wash. Also stored in that room were brooms and cleaning cloths.
14.
Jeffery Bellamy and Calvin Santiago went to the Texaco pumps, pumped gasoline into a container which they brought back to the Products Storage and Machine Room where the paint had spilled.
15.
Plaintiffs’ deceased and Jeffrey Bellamy began cleaning up the paint and had just about finished when heat or a spark from an electric motor, one of the four electric motors in use at the time, caused a flash fire igniting the gasoline, the brooms and the cleaning cloths.

In their Amended petition, plaintiffs alleged the following:

27.
At all time pertinent herein, defendant Car Clean Enterprises, Inc., and/or Mr. Pride Car Wash were covered by one or more insurance policies with Continential Insurance Company.
28.
Jeffrey Bellamy and Calvin Santiago were instructed by the manager of Car Clean Enterprises and Mr. Pride Car Wash, Nick Porter to clean up the blue paint with gasoline.
29.
As such pursuant to LSA-R.S. 23:1032 as amended by Act 147 of 1976 Nick Porter and Car Clean Enterprises are liable for an intentional act in which they breached their duty not to injure Calvin Santiago by having him clean up paint in a closed room by using gasoline.

Plaintiffs argue that the question of whether or not the Manager of the car wash, Nick Porter, ordered the boys to clean up the blue paint with gasoline, was a material allegation of fact which would preclude handling this matter by Summary Judgment. Defendant counters by submitting the deposition of Roger D. Seay, the owner of the Mr. Pride Car Wash, wherein Seay testified at page 50 and 51 as follows:

Q. What did Mr. Porter tell you as to what happened?
A. Mr. Porter told me that when they were putting everything up, they had spilled something. Without his knowledge, they had gotten some gas in a small container. He walked into the room and told them to get the gas out. As soon as he walked right out of the room, the flames shot out. It blew up. He walked around the corner of the room. He said he hadn’t walked five feet. Everybody else had been in there, you know, because, here again, you’re putting everything, it was right at closing. It was right at 6:00 o’clock. Everybody was walking in and out. There was a huge double door. It had been open all day. I know that for a fact because I had been over there. The single door was open. It was completely louvered, it’s open all the way around. There’s no reason that anything would have even accumulated. No fumes should have accumulated in that room. This is a louvered room from one damn end to the other, okay?
Q. And Nick Porter told you pretty much what had happened, he told you that this had happened?
A. Yes.

It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, 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. La.Civ.P.Art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979), at p. 1227; Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra. The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Employers’ Surplus Line Co. v. City of Baton Rouge, supra.

It is apparent to this court that there is a substantial difference on the facts as plead by Plaintiffs in the original and amending petition and those submitted by defendant.

In order to escape the exclusiveness of worker’s compensation the plaintiffs must show that the defendant’s tort was an “intentional act”, La.R.S. 23:1032, Bazley v. Tortorich, 397 So.2d 475 (La.1981). To establish that the tort is intentional it is necessary to show that the co-employee and/or the employer ... desired the consequences of his acts or omissions or that he believed the consequences were substantially certain to result from them. Bazley, supra, at 482.

The plaintiffs contend that the manager of the Mr. Pride Car Wash, Nick Porter, ordered Calvin Santiago and Jeffrey Bellamy to clean the spilled paint with gasoline. Defendant responds through hearsay testimony by Seay, claiming that it was the sole idea of the two minors to use the gasoline and that the explosion occurred within seconds after the manager became aware of the boys’ actions and instructed them to get the gasoline out of the room.

Our inescapable conclusion is that there are facts in dispute in which the proof one way or the other is material to the outcome of the trial and should be presented on the merits.

Where the court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits, and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981); Vermillion Corporation v. Vaughn, 397 So.2d 490 (La.1981). When reasonable minds can differ on whether the mover is entitled to judgment on the facts before the court the motion for summary judgment should be denied. Cates v. Beauregard, 328 So.2d 367 (La.1976). Thompson v. South Central Bell Telephone Company, 411 So.2d 26 (La.1982).

Accordingly, the judgment of the trial court dismissing plaintiffs’ suit with prejudice with respect to Defendant Fidelity and Casualty Company of New York is reversed and the case is remanded for trial. Costs to be paid by Defendant-Appellee.

REVERSED AND REMANDED.

ON REHEARING

In its application for Re-Hearing, Defendant-Appellee, Fidelity and Casualty Company of New York raises an issue which was not argued nor briefed before this court or the trial court in support of its motion for summary judgment.

Nonetheless, this does not preclude Defendant-Appellee from raising this issue in the trial court below. Accordingly, the request for rehearing is denied.

      . Referred to in plaintiffs’ amending petition as Continential Insurance Company.


author: BYRNES, Judge.

text:
    Joanlyn McELROY, Widow of Charles McElroy Individually and for the Benefit of Her Minor Children Charles J. McElroy, III, David J. McElroy, Tammy L. McElroy and Brian P. McElroy v. ALLST6TE INSURANCE COMPANY, et al.
    No. 12822.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 2, 1982.
    Writ Denied Nov. 12, 1982.

      Owen J. Bradley, Michael R. Guidry, New Orleans, Nolan Edwards, Crowley, for plaintiffs-appellants.
    William F. Bologna, Colvin G. Norwood, Jr., McGlinchey, Stafford & Mintz, New Orleans, for defendants-appellees.
    Before KLEES, CIACCIO and BYRNES, JJ.
   BYRNES, Judge.

This appeal arises from a wrongful death action brought by the wife and children of the decedent, Charles McElroy, resulting from a December 10, 1971 automobile accident. Decedent’s family sued Ford Motor Co., claiming that the decedent died as a result of a design defect which allowed the door of the car in which he was riding to fly open, thus ejecting him. Judgment was rendered in favor of Ford Motor Co., and it is from this adverse judgment that Mrs. McElroy and her children appeal.

The accident occurred on Louisiana Highway 23 in the early afternoon of December 10, 1971. It was raining at the time. Mr. McElroy and a co-worker were returning from work and were proceeding in a northerly direction on Louisiana Highway 23. The car they were traveling in was a 1967 Ford 4 door Sedan. The speed limit on Louisiana 23 at the time was 60 miles per hour. According to Mr. Perez, the passenger in the McElroy vehicle, a dog crossed the highway in front of the vehicle and Mr. McElroy applied his brakes to try and avoid the dog. The car went into a skid and was struck in the side by a following vehicle, a large refrigeration truck. The force of this impact flung the McElroy vehicle off the highway. Both McElroy and his passenger were ejected from the vehicle. Mr. McEl-roy never regained consciousness and died in the hospital approximately 18 days after the accident. The passenger survived.

The evidence in the record is quite clear that Mr. McElroy’s injuries were sustained after he was ejected from the vehicle. The crux of appellant’s case lies in their contention that the ejection was caused by a design defect which rendered the door latch mechanism unfit for the purpose for which it was designed, i.e. to keep passengers in the vehicle. Ford maintains that the door latch mechanism was more than adequate, but due to the severity of the collision nothing further could have been done to prevent the ejection.

The jury’s verdict was in the form of answers to interrogatories submitted to them. The first interrogatory asked, “Did Mr. McElroy sustain his fatal injury while inside the automobile?” The jury answered “no” to this question. It then answered “yes” to the second question, “Did Mr. McElroy sustain his fatal injury after being ejected from the automobile?” The jury answered the next question, which asked “Was the defect in the design of the Ford automobile a cause in fact of Mr. McElroy’s fatal injury?” in the negative and, in accordance with instructions given in the interrogatories did not answer any further questions. The jury’s verdict was unanimous on all questions. On motion of defendant the trial judge adopted the jury’s verdict as the judgment of the court.

Appellants have cited five specifications of error committed by the trial judge. The first alleged error concerns instruction given by the trial judge to the jury that Mrs. McElroy’s sale of the automobile involved in the law suit gave rise to a presumption that, had the automobile been introduced into evidence, it would have been unfavorable to the plaintiff’s case. The second error urged by appellants is that the trial judge erred in allowing Ford to introduce at trial evidence that the McElroy Ford was equipped with a lap seat belt and that McElroy was not wearing this seat belt at the time of the accident. The third specification of error maintains that the trial judge committed an abuse of discretion in granting Ford Motor Company’s motion in limine to exclude Ford test B-2117 from evidence. The fourth specification of error is that the trial judge erroneously allowed the Ruiz’ photographs of the McElroy vehicle into evidence without the necessary foundation being laid. As an alternative specification of error, the appellants urge that the jury conclusion in this case, that there was no defect in the design of the Ford automobile, is manifestly erroneously and therefore reversable under this court’s fact finding authority as defined in Arceneaux v. Domingue, 365 So.2d 1330 (La.1979) and Canter v. Koehring, 283 So.2d 716 (La.1973).

ASSIGNMENT OF ERROR I.

Appellants’ assignment of error No. 1 maintains that the Judge was in error in instructing the jury that Mrs. McElroy’s disposal of the automobile involved in the collision gave rise to a presumption, that had it been introduced as evidence, it would have been unfavorable to her case. The trial judge’s instruction to the jury on this point reads as follows: “Mrs. McElroy’s sale of the automobile involved in this law suit, with the approval of her attorney, gives rise to a presumption in the law, that had the automobile been introduced as evidence it would have been unfavorable to the plaintiff’s case.” Plaintiff, in support of the contention that this charge was inappropriate, cites the case of Babineaux v. Black, 396 So.2d 584, at 586 (La.App. 3d Cir. 1981) wherein the court states:

“It is true that under a long line of jurisprudence, the failure of a litigant to produce evidence within his reach raises the presumption that the evidence would have been detrimental to his case. Martin v. T. L. James & Co., Inc.,.237 La. 633, 112 So.2d 86 (1959); Rodriguez v. Northwestern National Insurance Co., 358 So.2d 1237 (La.1978); Tubesales v. Champion Machine Works, Inc., 281 So.2d 459 (La.App. 4th Cir. 1973). However, this presumption is not applicable when the failure to produce the evidence is explained. Monk v. Monk, 243 La. 429, 144 So.2d 384 (1962); Veillon v. Sylvester, 174 So.2d 189 (La.App. 3d Cir. 1965).”

The law is quite clear. Prior to the disposition of the car, plaintiff, relying on another theory of action, had the brakes disassembled and inspected. With litigation pending, it was unwise for the plaintiff to get rid of the vehicle. However, her explanation that she did it simply because it upset her every time she saw it in her driveway was brought to the jury’s attention. This court can sympathize with plaintiff’s desire to have the car out of her sight, but it should not have been destroyed. This discussion was amply placed before the jury during the course of the trial. This jury charge was not a directive to the jury that failure to introduce the evidence was prima facie evidence of no negligence on the part of Ford. It is conceivable that this charge could have unduly influenced the jury in a different situation. However, it is abundantly clear from the record before us that this is not the case here. The testimony bears out the fact that the jury was fully apprised of the circumstances involved in the disposal of the vehicle. Enough evidence was placed before the jury to lead this court to find that the charge in no way unduly prejudiced appellants’ rights. Appellants’ first specification of error has no merit.

ASSIGNMENT OF ERROR II.

Appellants’ second assignment of error is that the trial judge was in error in allowing Ford to introduce at trial evidence that the McElroy Ford was equipped with a lap seat belt and that Mr. McElroy was not wearing it the time of the accident. Appellants maintain that the trial judge’s charge to the jury was in error:

“You must consider the automobile as a whole in order to determine whether it was improperly designed. You must take into account all the features designed in the automobile for the purpose of keeping passengers inside the car in the event of a collision.”

Appellants maintain that this charge is erroneous inasmuch as Louisiana jurisprudence clearly states that there is no duty to wear a lap seat belt, and the failure to wear such a belt or other restraining devices does not constitute contributory negligence on the part of an injured party. See: Myles v. Lee, 209 So.2d 533 (La.App. 2nd Cir. 1968); Lawrence v. Westchester Fire Insurance Co., 213 So.2d 784 (La.App.2d Cir.), writ den. 215 So.2d 131 (La.1968); Fontenot v. Fidelity and Casualty Co. of New York, 217 So.2d 702 (La.App. 3d Cir. 1969); Williams v. Chrysler Motor Co., 271 So.2d 551 (La.App. 1st Cir. 1973); Williams v. Harvey, 328 So.2d 901 (La.App. 4th Cir. 1976).

Ford maintains that this jury charge in no way attempts to plead contributory negligence on the part of McElroy. Ford contends instead that the charge attempts to instruct the jury that they must consider the design of the automobile as a whole in determining whether or not there was a defect in the vehicle.

Appellants claim that Ford by this argument is trying to do what otherwise they would not be permitted to do, i.e. plead contributory negligence on the part of the decedent for not wearing the seat belt.

We disagree. Upon examining the interrogatories presented to the jury this court notes that the jury found that Mr. McElroy sustained his fatal injuries as a result of ejection from the vehicle, and that this ejection was in no way due to the design of the vehicle. From the evidence presented to the jury it is clear that the jury did not in any way pass on the question of contributory negligence. Ford’s defense to the allegations of design defect was that the vehicle was designed as safely as possible. Ford maintains that the design of the vehicle as a whole, including all of the restraint devices, was such that no defect existed. In this light, evidence of the existence of seat belts was properly before the jury.

ASSIGNMENT OF ERROR III.

The third assignment of error urged by appellants is that the trial judge committed an abuse of discretion in granting Ford’s motion in limine to exclude Ford test B-2117 from evidence. We conclude that the trial judge did not abuse his discretion by excluding the test.

Ford test B — 2117 was conducted by Ford to determine the strength of the hinges and latch mechanisms of 1967 Ford/Mercury model car doors. Plaintiff maintained that test B-2117 was admissible for two purposes. First the test allegedly shows that the 1967 Ford doors could be opened by the pulling of the actuator rod caused by impact deformation of the door, thus putting Ford on notice that a defect existed. Second, plaintiff asserts that the photographs accompanying the test could be used by plaintiff to determine the reasons for the McElroy door opening. This court, upon a careful review of the proffer submitted by plaintiff, containing both the test and deposition of two of the engineers involved in the test, has concluded that the trial court did not commit manifest error in refusing to admit the test.

Upon reviewing the testimony at trial, we conclude that Ford test B-2117 has no bearing on plaintiff’s theory of a design defect involving the actuator rod. Ford test B-2117 was not set up to test the design of the actuator rod, but was designed to test the latch mechanism. The conditions under which the Ford test was conducted were not similar to those encountered in the McElroy collision. The design of the test vehicle and door was in no way similar to the design of the McElroy vehicle and door. The test door was significantly altered for the purposes of a test unrelated to the actuator rod. The actuator rod did in fact bend and cause the door to open, but it was removed since its deflection hindered the true purpose of the test. No inquiry into its failure was explored by the test. We therefore conclude that nothing in the Ford test served to put Ford on notice of any alleged design defect in the actuator rod causing it to fail under conditions encountered in the McElroy collision. It appears from the test report that the failure of the actuator rod was incidental to this test. No reason for its failure was ever fully explored by this test. For this reason we find that the trial judge was correct in not admitting Ford test B-2117 as it would no doubt have confused the jury. The test is not relevant or material to the case.

Both appellee and appellants cite in support of their respective positions, the case of Hebert v. Brazzel, 403 So.2d 1242 (La.1981). We believe that the correct interpretation of the case, presented to this court by appellee, is that the trial judge is allowed to exercise reasonable discretion in determining each test and its admissability based upon the particular merits of the case. In Hebert, the differences in the test were such that they rendered the test not entirely identical to the accident it was compared with. These differences, however, were not of such a nature as to impair the usefulness or the probative value of the test. This is not the case here, insofar as the differences in Ford test B-2117 were such as to render the test inconclusive as an approximation of the forces which lead to the un-latching of the door in the actual accident.

ASSIGNMENT OF ERROR IV.

Plaintiff’s next assignment of error urges that the trial judge erroneously allowed the Ruiz photographs of the McElroy vehicle into evidence without the necessary foundation being laid for their admission. Ruiz was an investigator, who died approximately two months before trial. Plaintiffs maintain that the Ruiz photographs, taken of the car after it was towed from the scene of the accident, do not accurately reflect the condition of the car at that time. They contend that certain changes in the car, undoubtedly caused by the towing of the vehicle from the accident site, were apparent in the Ruiz photographs when compared with police photographs taken at the site. Plaintiffs maintain that the only accurate picture of the vehicle is shown in the state police photographs.

In Launey v. Traders and General Insurance Co., 169 So.2d 757 at 759 (La.App.3d Cir. 1964) the Third Circuit Court of Appeal stated with regard to photographic evidence:

“The general rule is that photographs are admissable only if verified or authenticated as accurate by extrinsic evidence and that the trial court has some discretion in determining the sufficiency of the preliminary proofs offered to identify or authenticate the photograph. 32 C.J.S. Evidence Section 715, 716, pp. 1006, 1018; 20 Am.Jur. ‘Evidence’, Section 730 (page 609). As these encyclopedia references also show, this authenticating evidence must be to the effect that the photograph is a substantially true and faithful representation esentation of the place, person, or subject which it purports to portray. See Fuqua v. Martin, La.App. 2 Cir., 40 So.2d 404, cf., Greeves v. S. H. Kress & Co., La.App.Orl., 198 So. 171. If the photograph is not substantially correct but is nevertheless admissable because sufficiently correct to be helpful, its verification may consist of explaining the inaccuracies. 32 C.J.S. Evidence Section 715 at pp. 1012-1013; 20 Am.Jur. ‘Evidence’, Section 730-734 at pp. 609-613; Annotation, Photographs-Authentication, 9 A.L. R.2d 899. See also Annotation, Evidence-Photographs and Photostats, 72 A.L.R.2d 308.
In the authentication, ‘The photograph may be verified by oath of the photographer who took it; and, indeed, it has been said that this is the better practice. However, it is not necessary to produce the photographer; sufficient verification may be furnished by the testimony of any competent witness who has sufficient knowledge to testify that the photograph fairly represents what it purports to represent.’ 32 C.J.S. Evidence Section 715 at p. 1014. Or, as stated at 20 Am.Jur. ‘Evidence’, Section 730 at p. 610, ‘The authenticity of a photograph may be established by any witness who is familiar with the scene, object, or person portrayed or is competent to speak from personal observation. Thus, proof of the accuracy of a photograph of a person may be made by the testimony of one who was familiar with the appearance of the person at the time the photograph was taken.’ ” Cf., State v. Goins, 232 La. 238, 94 So.2d 244, syllabus 5. See also Annotation, 9 A.L.R.2d 899 (cited above) at Section 12, p. 923.

There was testimony in the record that the pictures were taken by Mr. Ruiz while Mrs. McElroy looked on. The question was asked by Mr. Norwood, the attorney for Ford, “While the vehicle was in your driveway was it subject to damage that you know of, run into or bumped or further destroyed?” Mrs. McElroy, answered “No.” This question was asked subsequent to an objection by appellants attorney wherein he stated for the record “We object to the relevancy unless they show that there is no change in the motor vehicle from the time of the accident and the time the photographs were taken.” The court stated that, “That will be a question of fact for the jury to determine.”

We have before us two sets of pictures, one set being the state police pictures taken at the scene of the accident and the other being pictures taken of the car by Ruiz. It was stated that no further damage occurred to the automobile from the time the state police pictures were taken until Ruiz took his pictures. The only differences are those alleged by plaintiff as occurring because of the towing. Plaintiff urges that it is incumbent upon the defendant, in offering the pictures, to lay a foundation showing that the pictures properly represent the vehicle as it appeared after the accident. We agree with the trial court that the alleged differences in the two sets of pictures would have to be resolved by the jury. In light of the testimony in the transcript we find that the trial court properly allowed the Ruiz pictures to be presented to the jury. The foundation was properly laid.

ASSIGNMENT OF ERROR V.

The appellant’s final contention is that the jury committed manifest error when it found that a defect in the design of the deceased’s vehicle was not a cause in fact of his injuries. The scope of appellate review of the facts of any case was explicitly set forth by the Supreme Court in Arceneaux v. Dominque, supra, at 1333:

“The Constitution of 1974 provides in Article 5, Section 10(B):
‘(B) Scope of Review. Except as limited to question of law by this constitution or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.’
As an aid to the exercise of the appellate function of review of facts in civil cases, we attempted to explain in Canter v. Koehring, supra, without great detail, the appropriate standard. We said that ‘even though the appellate court may feel that its own evaluations and inferences are as reasonable,’ it should not disturb reasonable findings of the trial court when there is conflict in the testimony. We prefaced this observation: ‘When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.’ 283 So.2d 716, 724 [Emphasis added].
We did not forsee that this explanation would be misunderstood to mean that: ‘There is no manifest error when the evidence before the trier of fact furnishes a reasonable basis for its finding.’ We said the appellate court should not disturb this factual finding in the absence of manifest error. The difference is important. ‘Manifestly erroneous,’ in its simplest terms, means ‘clearly wrong.’ We said then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be further determination that the record establishes that the finding is not clearly wrong [manifestly erroneous].”

The special verdict of the jury consisted of answers to three interrogatories. The first two interrogatories deal with the ejection of Mr. McElroy. Specifically they ask where his fatal injury occurred. The jury’s finding was that the injury occurred after McElroy was thrown clear of the automobile. This conclusion is amply supported by the record. Expert medical testimony supported the plaintiff’s contention that Mr. McElroy did indeed sustain his fatal head injuries solely because of his ejection from the automobile. The only other interrogatory answered by the jury in their special verdict concerned the design of the Ford automobile and whether it was a cause in fact of Mr. McElroy’s fatal injuries. The jury answered this interrogatory in the negative. The record is replete with depositions, video tape depositions, and physical evidence, including photographs and actual lock assemblies of a representative car door. Also included in the exhibits are three representative car doors. The appellants, in requesting a de novo factual determination by this court, have made all of this physical evidence available to the court. Upon a review of this evidence, as well as the trial transcript, this court can come to no other conclusion but that there was no manifest error in the jury’s determination of the issue of the alleged design defect. We find a more than reasonable basis for the jury’s finding of fact. It is clearly supported by the evidence at hand. Although reasonable men may differ in this finding, in light of the evidence presented, this factual determination should not be disturbed by this court.

For the reasons above stated the trial court judgment is affirmed with all costs of this appeal assessed to appellants.

AFFIRMED.

      . At the time of the accident, Louisiana was still using a contributory negligence standard.


author: REDMANN, Chief Judge.

text:
    Craig COOPERIDER v. Andrew DEARTH et al.
    No. 12834.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1982.

      Richard A. Tonry, Chalmette, and Bruce G. Reed, Reed & Reed, New Orleans, for plaintiff-appellee.
    David J. Mitchell and James Carter, Por-teous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellants.
    Before REDMANN, C. J., and GARRISON and BYRNES, JJ.
   REDMANN, Chief Judge.

Defendants, a motorcycle driver and his liability insurer, appeal from a $31,000 judgment on jury verdict for injuries plaintiff suffered while a guest passenger on the motorcycle. Defendants argue that plaintiff had compromised his claim, and alternatively question both liability and quantum. We affirm.

Plaintiff’s injuries from being thrown from the motorcycle included “very large abrasions and contusions” to the right side of face and body and four facial bone fractures. The jaw bone fracture was stable (apparently requiring no repair). “The depressed cheek bone was corrected through incision inside the hairline .... The repair of the maxillary antrum — that’s the sinus that was fractured in its wall — it had to be approached through the inside of the mouth .... [Tjhere was an additional . .. fracture at the maxilla-zygomatic suture line where the two bones come together . . . that required fixation .... We drilled a hole where we could pad the fixation to stabilize it.” Plaintiff also suffered trauma-caused abscess to his upper right front tooth, requiring opening of the root canal and later capping of the tooth. Future medical will include removal of “tattooing” on his face resulting from being ground on an asphalt roadway, and, probably, further root canal dental work.

Plaintiff had insurance that paid 80% of his hospitalization costs, but soon both hospital and plastic surgeon were owed past-due balances. Defendant insurer ultimately provided the funds to pay those balances, in return for which plaintiff executed a release. The most difficult question in this case is the effect of that release.

The release is entitled “RELEASE OF ALL CLAIMS (Open Medical).” It reads:

I Craig Cooperider in consideration of the sum of $1,868.00 . . . release and forever discharge Andrew Dearth and Allstate ... from any and all claims, demands, damages, costs, expenses, loss of services, actions and causes of action, arising from any act or occurrence . . ., and particularly on account of all personal injury, disability, property damage, loss or damages of any kind sustained or that I may hereafter sustain in consequence of an accident that occurred [on December 16, 1977].
But this release does not apply to reasonable expenses up to $750.00 for necessary medical and hospital services which shall be rendered within 180 days after the date of this release to treat injuries received by me in the accident described above.
I understand that the parties hereby released admit no liability of any sort by reason of said accident and that said payment and settlement in compromise is made to terminate further controversy respecting all claims for damages that I have heretofore asserted or that I . .. might hereafter assert because of said accident.

Defendants plead the release as a compromise of all claims; plaintiff testified it was never his intent to settle anything other than his past-due medical bills. In fact plaintiff received no funds for himself but only the exact amounts of the past due medical bills. These circumstances fairly approximate those of Moak v. American Automobile Ins. Co., 242 La. 160, 134 So.2d 911 (1961), and Mooneyhan v. State Farm Mut. A. Ins. Co., 290 So.2d 405 (La.App. 2 Cir. 1974). Following Moak and Mooney-han, we affirm the trial court’s rejection of the plea of compromise.

On liability, we note that the basic facts are that plaintiff was a passenger on defendant driver’s motorcycle; that defendant driver was driving 30 to 35 m.p.h. in fog, a speed he agreed he would not have driven in fog save that he could see the tail light of another motorcyclist 20 to 30 feet ahead of him and thus tell when the road curved, etc. The preceding motorcycle encountered trouble, however, causing its driver to fall to the ground, and defendant driver was forced to veer to his right to avoid running over the preceding driver. Defendant driver never lost control of his motorcycle, but he did go over a high curb, and at some point during these maneuvers plaintiff was thrown from defendant’s motorcycle.

Because plaintiff testified that he did not blame defendant driver, who drove as well as he could under the circumstances, defendants argue their driver was not at fault. The jury no doubt found fault both in excessive speed for the foggy condition and in following too close, and we cannot substitute our inferences for those reasonable inferences of the trier of fact, Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Defendants then argue that the sudden emergency doctrine should excuse their driver. We disagree because the duty to drive at a low speed in fog, and the duty not to follow too close, include within the risks they seek to avert the risk that something unexpected should appear out of the fog, and that one following too close might not be able to bring his vehicle to a normal, reasonably safe stop. The breach of a duty cannot be excused by the occurrence of the very risk that the duty intends to avoid. The only reason the occurrence might be described as “sudden” and “emergency” is that defendant driver was both going too fast and following too close. Defendant driver’s fault did not consist in poor reaction to the emergency but in creating the emergency.

Nor can we conclude that the jury erred in not finding contributory negligence or assumption of the risk on the part of plaintiff. Defendants refer to the fact that both plaintiff and defendant driver had drunk some alcoholic drinks during the evening, but there is no evidence that anyone’s judgment or physical ability was impaired by the alcohol. Defendants further argue that the fog was equally visible to plaintiff and that plaintiff did not complain of either speed or of following too close. But the jury also knew that plaintiff, seated directly behind defendant driver, could not see directly ahead as well as defendant could and thus was not in as good a position as was defendant to evaluate speed and following distance. Finally on this point, defendants argue that plaintiff might have jumped off the motorcycle. We concede that possibility, but it is not as probable as that the jolt of the motorcycle hitting the high curb dislodged him. We cannot say that the jury was clearly wrong in not finding negligence or assumption of risk.

Defendants also argue that $31,000 was an excessive award for the injuries previously described (with some concomitant past and future loss of work). Defendants argue that that award includes at least $27,000 general damages, and that that amount is out of line with prior awards as reviewed in Titard v. Lumberman’s Mut. Cas. Co., 291 So.2d 857 (La.App. 3 Cir. 1974), and with Titard itself, which awarded $10,-000 general damages. We observe that, although the plaintiff there had four facial fractures plus a nose fracture, the repair that our plaintiff had to undergo was not present; and we also note that inflation would perhaps have doubled the number of those $10,000 that were awarded for an accident that occurred in June 1969, by the time our accident occurred in December 1977, eight and a half years later. Thus Titard s quantum does not persuade us that our award is excessive. We deem it within the “much discretion” that La.C.C. 1934(3) gives to the trier of fact.

Affirmed.


author: DOUCET, Judge. STOKER, Judge,

text:
    MEDICAL ADJUSTMENT BUREAU, INC., Plaintiff-Appellant, v. Marion & Nina GARRETT, Defendant-Appellee.
    No. 82-107.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 15, 1982.
    Rehearing Denied Oct. 27, 1982.
    Writ Denied Dec. 10, 1982.

      Stanley F. Babin, Lafayette, for plaintiff-appellant.
    Patrick L. Colomb, Lafayette, for defendants-appellees.
    Before FORET, STOKER and DOUCET, JJ.
   DOUCET, Judge.

This is a suit on an open account wherein defendants assert the sale involved was never completed, and alternatively, the sale was thereafter effectively rescinded. From an adverse judgment, plaintiff-creditor appeals. We reverse.

The facts indicate that Doris Dodge Fashions was having a sale. Defendant Nina Garrett went down to the store on or about Wednesday, July 23, 1980, and tried on $2,138.70 worth of clothing she was desirous of purchasing, however, it needed to be fitted due to her stocky stature and obesity at the time. Accordingly, she agreed to purchase the clothing and left it with the retailer for alterations. Upon returning home Mrs. Garrett discussed her purchases with her husband Marion Garrett, also made defendant herein. After reflecting on her purchases they came to the conclusion that they could not afford all the clothing purchased, which, as aforementioned, was priced at the sum of $2,138.70. Hence she allegedly called Doris Dodge the following Monday to inform the storekeeper of her desire to cancel the purchase. According to defendant, when she called she was informed by Mrs. Barbara Jean, a store employee, that alterations had not begun. The storekeeper, on the contrary, denied that she or any of her employees was ever informed of Mrs. Garrett’s cancelled order, denies any acquiesence in rescission of the sale, and contends the alterations had indeed begun.

Mrs. Garrett never received the clothes and Doris Dodge never received any money for the clothes purchased. The account was assigned to Medical ^Adjustment Bureau who thereafter requested payment from defendant without success. Suit followed whereat the district judge rendered a decision indicating that the sale had been rescinded prior to the alterations being made, therefore judgment was rendered in favor of the defendant. Creditor collection agency appeals contending that the buyers’ attempted rescission, if there was indeed any communication in this respect, was of no effect as the sale was final. We agree.

A contract of sale is perfected between the parties when there exists an agreement for the object and for the price thereof although the object has not been delivered nor the price paid. LSA-C.C. Art. 2456. Thereupon the buyer is obliged to pay the sales price and receive delivery of the thing purchased and remove it. LSA-C.C. Art. 2549. Defendant contends that the sale was conditioned upon her approval following alteration, categorizing the sale as one with reservation of view and trial pursuant to LSA-C.C. Art. 2460. However it cannot be said that the parties contemplated that any reservation which might have been offered for inspection would extend to cancellation due to the buyer’s subsequently realized inability to pay. Nor is this a case for application of LSA-C.C. Art. 1800, entitled “Offeror’s change of intention before acceptance”, as the buyer had agreed to purchase the clothing, arranged for alterations, and the clothes were withdrawn from the retailer’s racks. Clearly the sale was complete upon Mrs. Garrett’s departure from the store after sampling the clothes and she was obliged to pay the price and accept delivery. The record supports no other conclusion. Thus the question becomes: Was there an effective rescission?

Contracts may be abrogated or revoked by mutual consent of the parties, however the party alleging agreement to rescind bears the burden of proof as no one is presumed to have renounced a right unless it clearly appears he intended to do so. Devore v. Devore, 172 So.2d 923 (La.App. 4th Cir. 1965); Succession of Martin, 335 So.2d 494 (La.App. 2nd Cir. 1976), cert. denied 337 So.2d 516 (La.1976); LSA-C.C. Art. 2130.

The record is totally void of any evidence indicating mutual consent to rescind the sale. Even the testimony of defendant indicates no agreement on the retailer’s part to rescind the sale. Instead the record shows the attempted cancellation was a unilateral decision by appellee alone. Although our law provides several causes for which a buyer can rescind a sale, no provision exists for rescission due to inability to pay, nor do we know of any provision allowing avoidance due to a husband’s objection. Parties may not repudiate a contract because it is uneconomic or imprudent. McNeely v. Baron Construction Co., 261 So.2d 333 (La.App. 4th Cir. 1972).

For the reasons set forth above, the judgment of the trial court is reversed and judgment is rendered as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Medical Adjustment Bureau, Inc. and against Marion and Nina Garrett, in the sum of $2,138.70, together with legal interest from date of judicial demand;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the clothing purchased by Marion and Nina Garrett be delivered to them within thirty days from the date this judgment becomes final, and in the event of failure of Medical Adjustment Bureau, Inc. to comply with this decree, the above judgment in favor of Medical Adjustment Bureau, Inc. shall be cancelled forthwith;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs of these proceedings, at trial level and on appeal, are assessed one-half against Medical Adjustment Bureau, Inc. and one-half against Marion and Nina Garrett.

REVERSED AND RENDERED.

STOKER, J., concurs in part and dissents in part and assigns reasons.

STOKER, Judge,

concurring in part and dissenting in part.

I concur in the majority opinion in this case insofar as it reverses the judgment of the trial court and grants a money judgment to plaintiff-appellant. With respect for the opinion of my brothers, I have some reservations as to whether we should condition the validity and effectiveness of our judgment in favor of plaintiff-appellant on the delivery of the clothing to the defendants. This is not to say that defendants are not entitled to the clothing, although I express no opinion on the matter. It appears to me that in the event plaintiff-appellant receives satisfaction on its judgment against defendants and does not deliver the clothing to them, then any issues arising out of that event should be the subject of a separate legal action. In such an action the equities in favor of all parties may be inquired into. Evidence of defense as well as claims may be presented. Therefore, I concur in the majority opinion in part but dissent insofar as the majority conditions its judgment on the delivery of the merchandise in question to defendants.


author: FORET, Judge.

text:
    Hurley MOSE, Plaintiff-Appellee, v. Troy E. BREWER & Sentry Insurance Company, Defendants-Appellants.
    No. 82-339.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 21, 1982.

      Voorhies & Labbe, W. Gerald Gaudet, Lafayette, for defendants-appellants.
    Fontenot & Mitchell, John Clyde Fonte-not, Ville Platte, for plaintiff-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   FORET, Judge.

MOTION TO DISMISS

The defendants-appellants, Troy E. Brewer and Sentry Insurance Company, have suspensively appealed from a judgment granting plaintiff-appellee an award of damages. This court issued a rule to show cause why this appeal should not be dismissed as untimely.

This is a suit for damages for personal injuries and medical expenses plaintiff-ap-pellee suffered as a result of an automobile accident. The case was taken under advisement, and the judgment signed on January 21, 1982. However, defendant-appellant never received by mail from the clerk, either a copy of the judgment or formal notification that the judgment had in fact been rendered.

After receiving a bill for court costs from the Clerk of Court, defendants-appellants contacted the Clerk of Court by telephone to inquire as to the judgment. On February 25, 1982, a copy of the signed judgment was forwarded to defendants-appellants. Motion for new trial was filed and denied on March 30, 1982. Motion for new trial was filed and denied in court on March 30, 1982. This judgment was filed on April 13, 1982, and this appeal was perfected on May 12, 1982.

Code of Civil Procedure Article 1913 states that when a case has been taken under advisement by the court notice of the signing of the final judgment therein shall be mailed to the counsel of record for each party. If a notice of judgment is not furnished as required, the delay for seeking an appeal does not ordinarily begin to run. Ouachita Equipment Rental, Inc., v. Dyer, 386 So.2d 193 (3rd Cir. 1980).

The defendant-appellant contends that since his appeal was perfected within 30 days of receipt of the judgment denying new trial, the appeal should remain a sus-pensive appeal. However, since denial of new trial was made in court and defendant-appellant was not entitled to notice thereof under Code of Civil Procedure Articles 2123 and 1914, the appeal must have been made within 30 days of the actual denial in court.

Code of Civil Procedure Article 2123 requires that a suspensive appeal be perfected within 30 days of the court’s refusal to grant a timely application for a new trial. Since this appeal was perfected more than 30 days after the motion for new trial was denied, it is hereby converted into a devolutive appeal. Gwatney v. Miller, 365 So.2d 1133 (3rd Cir. 1978).

The motion to dismiss the appeal is denied and this appeal is hereby converted to a devolutive appeal.

SUSPENSIVE APPEAL DISMISSED; DEVOLUTIVE MAINTAINED.


text:
    A. D. BROWN and Gladys C. Brown v. MORRIS WILLIAMS, INC.
    No. 53245.
    Supreme Court of Mississippi.
    May 26, 1982.
    Shell, Buford, Bufkin, Callicutt & Perry, K. Hayes Callicutt, Jackson, for appellants.
    Heidelberg, Woodliff & Franks, Charles G. Copeland, James R. Moore, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Before PATTERSON, C. J., SMITH, P. J., and BROOM, J.

AFFIRMED.


text:
    Morris GRAY v. Leon SMITH and New Old Trace Marina, Inc.
    No. 53819.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Rehearing Denied Oct. 27, 1982.
    Binder, Kirksey & Delaughter, William B. Kirksey, Alvin M. Binder, Jackson, for appellant.
    R. L. Goza, Canton, for appellees.
   Appeal from Chancery Court, Madison County; G. Milton Case, Chancellor.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Melville R. GIRARD, III v. Jennie Ann EVANS.
    No. 53747.
    Supreme Court of Mississippi.
    Oct. 6, 1982.
    Cornelius J. Ladner, Bay St. Louis, for appellant.
    No briefs filed by appellee.
   Appeal from Chancery Court, Hancock County; William L. Stewart, Chancellor.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

REMANDED FOR FURTHER PROCEEDINGS.

PATTERSON, C. J., WALKER, P. J., ROY NOBLE LEE, HAWKINS ■ and PRATHER, JJ., concur.

DAN M. LEE, J., takes no part.