author: WATKINS, Judge.

text:
    Thomas R. McGINNIS, d/b/a T MC Concrete v. Ronnie GRIZZAFFI.
    No. 14119.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      R. Scott Ramsey, Jr., McElroy & Ramsey, Ltd., Berwick, for plaintiff-appellant.
    Nicholas F. LaRocca, Jr., Morgan City, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action which plaintiff Thomas E. McGinnis d/b/a T MC Concrete, styles an action on an open account. Defendant Ronnie Grizzaffi reconvened. The trial court denied plaintiff’s principal demand and rendered judgment in favor of Grizzaf-fi and against McGinnis on the reconven-tional demand in the sum of $1,575.00, and taxed an expert fee of M. I. Starns in the sum of $280.00 against McGinnis as costs. We reverse.

Grizzaffi entered into a verbal agreement with McGinnis for McGinnis, a cement finisher, to lay and finish the concrete on a slab for a double-wide mobile home in Patterson, Louisiana. In connection with the job McGinnis laid visquine and put down mud for the laying of the slab. Grizzaffi then changed his mind and, before further work was done on the trailer slab, verbally asked McGinnis to lay and finish the slab for a log cabin he was planning to build on the north bank of Bayou Teche near Patterson.

The agreement was that the builder of the log cabin, Smith Brothers, was to lay and prepare the forms for the concrete slab. St. Mary Ready Mix was to furnish the concrete. McGinnis was to lay and finish the concrete. Grizzaffi was his own general contractor for purposes of arranging for wiring and the like.

Grizzaffi called McGinnis a week before the concrete was to be poured and told him Smith Brothers was setting the forms and asked McGinnis to do some work on grading, digging the footing, and so forth. McGinnis’ crew did that work on Saturday, and the agreement was the concrete was to be laid the following Monday or Tuesday. On Saturday after inspecting the site McGinnis told Grizzaffi that the forms were not properly laid and asked Grizzaffi to have Smith Brothers correct the forms. On Monday McGinnis telephoned Grizzaffi and told him he could not do the work until Tuesday because he could not get St. Mary Ready Mix to deliver the concrete until then. In that telephone conversation McGinnis asked if the defect in the forms was corrected, and Grizzaffi said no. McGinnis again called Grizzaffi early Tuesday morning, and Grizzaffi told him to bring the concrete out. McGinnis then ordered the concrete.

When McGinnis arrived at the construction site, he found the defect in the forms had not been corrected. McGinnis arrived at the site about 8:45 Tuesday morning and his crew about five minutes later. They set to work correcting the forms. The first concrete truck arrived at 9:00. In rapid succession, four concrete trucks arrived. Because the correcting of the forms occasioned considerable delay, McGinnis saw that there was a strong possibility that the cement would begin to harden in the trucks. He radioed the dispatch office in Morgan City to stop the deliveries for a while to permit them to correct the forms. At that time theie was a fifth truck already loaded that the furnishers of the concrete, St. Mary, had no alternative but to send.

It was a hot July day. The concrete became somewhat solidified in the truck and, consequently, when it was poured, it was hard to work. Because of that fact, the concrete as laid was uneven and in places somewhat honeycombed. In spite of the defects in the concrete, Grizzaffi proceeded to have the house constructed on the foundation as laid by McGinnis. In the house as constructed the floors are uneven and the bottom logs of the walls fail to meet the concrete in all places. Also, the kitchen floor proved to be too uneven to permit the laying of slate, which Grizzaffi earlier had planned to have laid.

The agreement was that Grizzaffi would pay McGinnis the day the concrete was laid. When Grizzaffi saw the concrete would be uneven, he refused to pay McGinnis. McGinnis sent Grizzaffi a bill for the uncompleted work on the house trailer foundation and the work on the log cabin slab. Grizzaffi did not pay either amount, and the present suit was filed.

The trial court found, apparently relying upon the testimony of defendant’s expert on concrete laying, M. I. Starns, that it was the duty of a cement finisher to insist that the forms were properly laid, and that McGinnis failed in the performance of that duty. Hence, the defect in the log cabin foundation was the result of McGinnis’ failure to perform his duties.

In that conclusion, the trial court was guilty of manifest error and clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Dominque, 365 So.2d 1330 (La.1978). McGinnis on at least two occasions asked Grizzaffi to have the forms corrected. Either Grizzaffi or the builder of the forms, Smith Brothers, neglected to correct the forms and thus failed to follow the concrete finisher’s instructions. The trial court did not in its written reasons mention these facts and consequently its analysis of the facts is flawed. It is the fault of Grizzaffi or Smith Brothers that the forms were not in proper condition when McGinnis arrived on the site Tuesday morning. Grizzaffi had even indicated in his telephone conversation with McGinnis Tuesday morning that he was ready for the concrete to be poured. Thus, although McGinnis was under a duty to see the forms were done correctly, he did everything in his power to perform that duty. It is quite true that the expert, Starns, testified that ice or water could have been added to the trucks (which was not done) and that the metal reinforcements for the concrete could have been placed before the job was begun (which also was not done), but it is not clearly shown that either of these errors, if they were errors on the part of McGinnis, contributed materially to the premature hardening of the concrete. McGin-nis performed his verbal contract as agreed upon without any substantial fault on his part, and he is entitled to be paid his labor under the contract, or $833.00.

As the fault was that of Grizzaffi or Smith Brothers, not that of McGinnis, Griz-zaffi’s reconventional demand against McGinnis must fail.

Grizzaffi contends that McGinnis failed to prove the items of his claim for the work performed on the trailer slab, and is not entitled to any amount for that work. Obviously Grizzaffi gave McGinnis substantial discretion in charging for that work. Unless it could be shown that McGinnis’ charge was patently unreasonable, McGin-nis is entitled to be paid for the work he did without itemizing that amount. We award the sum of $542.00 for work on the uncompleted slab.

McGinnis seeks attorney’s fees for the bringing of an action on an open account. As the agreement was that McGinnis would be paid for his work on the house slab when the work was completed, the work was done by the job, not on open account. McGinnis did no other work for Grizzaffi personally (he did perform some work for a relative of Grizzaffi) except the initial work on the trailer slab. As that work was likewise an isolated piece of work, it was obviously done by the job, not an open account. Hence, we deny attorney’s fees.

All expert witness fees will be taxed as costs to Grizzaffi.

Judgment is rendered for plaintiff, Thomas E. McGinnis, and against defendant, Ronnie Grizzaffi, in the sum of $1,311.00, all costs in the trial court and this court to be paid by Ronnie Grizzaffi. The reconventional demand of Ronnie Grizzaffi is dismissed.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Gary A. GODWIN and Jerome B. Haggard v. Rubin DENBY, Carey Arceneaux and State Farm Fire and Casualty Company.
    No. 14122.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Writ Granted July 2, 1981.
    Anthony J. Clesi, Jr., Lane & Clesi, Baton Rouge, for defendant-appellant State Farm Fire and Cas. Co.
    Alan J. Robert, Gonzales, for plaintiff-ap-pellee.
    L. Albert Forrest, Roy & Forrest, New Iberia, for defendant-appellee Rubin A. Denby.
    A. J. McNamara, Hailey, McNamara, McNamara & Hall, Metairie, for defendant-appellee Buddy Williams Builders, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

This is a suit for damages arising out of an incident in which plaintiffs Gary A. God-win and Jerome B. Haggard were injured by shots fired by defendants. Rubin Denby and Carey Arceneaux. Subsequent pleadings added State Farm Fire and Casualty Company as a defendant. State Farm filed its first answer to the original and first supplemental petitions on January 29, 1980. In that pleading, which was filed on behalf of Arceneaux but not on behalf of Denby, no specific coverage defenses were raised. Denby filed an answer on his own behalf.

A second supplemental petition was filed by plaintiffs, alleging that State Farm was the insurer of Denby. State Farm amended its original answer on April 10,1980, specifically denying coverage for Denby.

Plaintiffs then filed a third supplemental and amending petition seeking judgment against Buddy Williams Builders, Inc., as the employer of Denby. On May 13, 1980, State Farm filed an answer to the third amending petition, in which it re-averred all of the allegations made by it in previous answers.

Buddy Williams Builders, Inc., answered the third amending petition and third partied State Farm as its insurer. On June 19, 1980, State Farm answered the third party petition, denying coverage and praying for a trial by jury of all issues in the lawsuit.

On September 5, 1980, summary judgment was signed, dismissing plaintiffs’ suit as to Buddy Williams Builders, Inc.

Thereafter, on September 17, 1980, judgment was signed, vacating and setting aside the order for a jury trial. From that judgment, State Farm has appealed.

The trial judge, in his written reasons for judgment, found that since the suit against Buddy Williams had been dismissed, the third party demand and the answer thereto filed by State Farm, including the request for jury trial, “all must fall as though they had never been filed.”

Article 1732 of the Code of Civil Procedure provides:

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

The only issue as to State Farm raised by the third party demand filed by Buddy Williams Builders, Inc., is coverage, which was denied by State Farm in its answer thereto. Since the answer, which incorporated the request for jury trial, was filed more than ten days after all pleadings directed to the main demand, State Farm was entitled to a jury trial only as to the issue raised by the third party demand. Since that demand related only to the coverage afforded by State Farm to Buddy Williams Builders, Inc., and since Buddy Williams Builders, Inc., was dismissed from the suit on motion for summary judgment, there are no issues remaining to be tried by jury.

The judgment appealed from is therefore affirmed, at State Farm’s cost.

AFFIRMED.


text:
    Michael R. COCHRAN v. CITY OF BATON ROUGE.
    No. 14130.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Raymond L. Simmons, Baton Rouge, for plaintiff-appellant Michael Cochran.

      Walter G. Monsour, Jr., Parish Atty., Joseph F. Keogh, Asst. Parish Atty., Baton Rouge, for defendant-appellee City of Baton Rouge, Parish of East Baton Rouge, Baton Rouge Civil Service Bd. and City Parish Dept, of Public Works.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

By this suit, Michael R. Cochran is seeking judicial review of an opinion by the Baton Rouge Civil Service Board which affirmed his discharge from his position as an Airport Safety Officer with the Greater Baton Rouge Airport District. The review was made on the basis of the record of the hearing before the Civil Service Board, and the decision of the Board was upheld. From a judgment dismissing his suit, Mr. Cochran has appealed.

Our review of the record shows that there is no copy of the letter of discharge in the record, and that the transcript of his testimony taken before the Board is incomplete and inaccurate, because of inability of the transcriber to understand the tape, and because of numerous tape malfunctions.

We are required to determine if the finding of the agency is arbitrary or an abuse of discretion, and if it is supported by substantial evidence. Much of the important testimony in the record is either garbled or missing because of tape malfunctions. In view of this fact and the fact that the letter of discharge is missing from the record, we feel the interest of justice will best be served by remanding the case to the Baton Rouge Civil Service Board, with instructions to prepare a complete transcript, or, in default of that, to hold a second hearing so that an adequate record thereof can be made.

The judgment appealed from is therefore set aside, and the case remanded to the Baton Rouge Civil Service Board for further proceedings in accordance with this opinion and according to law. Costs of this appeal shall be paid by the defendant.

REMANDED.


author: COLE, Judge.

text:
    Herman PAGE v. PRESTRESSED CONCRETE COMPANY and Highlands Insurance Company.
    No. 14135.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Wayne H. Carlton, Jr. and Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    Lawrence J. Ernst, New Orleans, for defendants-appellees.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issues presented are whether or not the plaintiff-appellant has proven any work-related injury or disease and whether or not the disease rendered him partially disabled. The facts giving rise to the litigation are as follows.

Plaintiff-appellant Herman Page was employed as a laborer by Prestressed Concrete Company (Prestressed) from March 1968 to March 1977. During this time he worked in the “girder” area and his duties consisted of dismantling concrete forms from their molds and then buffing or using steel wool to clean the molds. Mr. Page testified at trial he had no difficulty breathing prior to his employment at Prestressed but in 1974 he required hospitalization for severe coughing and wheezing. Mr. Page required no further hospitalization or medical treatment and quit his job at Prestressed in March of 1977. He told his supervisors and co-workers he was quitting in order to go into business for himself. He made no mention of his breathing problem being the reason for the termination. Several months later Mr. Page filed suit against Prestressed and its insurer, Highlands Insurance Company, alleging he was totally and permanently disabled by his “underlined asthmatic condition” which was aggravated by his employment at Prestressed and by the “pneumocomiosis” which he contracted as a result of his employment. Plaintiff attributed his breathing problems to the concrete dust he inhaled as he cleaned the molds.

After a trial on the merits, the trial court found in favor of the defendants and dismissed plaintiffs case. In written reasons the court concluded plaintiff had failed to prove he was even partially disabled by any work-related injury or disease. The court noted La.R.S. 23:1221(3) defined an employee as being partially disabled when he was unable to perform the duties in which he was customarily engaged or duties of the same or similar character for which he was fitted by education, training and experience. The court observed that although Mr. Page may have been unable to work in dust-filled environments, he was a general laborer by experience and no evidence was presented showing he was unable to participate in the general labor market.

Although we agree with the trial court’s conclusion that the plaintiff has failed to prove partial disability, we need not elaborate upon that issue. We find plaintiff has failed to prove the first element required for recovery, i.e., he has failed to prove his disease was caused by conditions characteristic of his employment, as required by La. R.S. 23:1031.1. We therefore affirm the trial court’s dismissal of plaintiff’s suit.

In order to recover benefits for an occupational disease an employee must prove he contracted the disease during the course of his employment and the disease was the result of the nature of the work performed. Bates v. Bituminous Casualty Corporation, 266 So.2d 556 (La.App.3d Cir. 1972). Occupational disease is defined in La.R.S. 23:1031.1(B) as follows:

“An occupational disease shall mean only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.”

In their treatise on Workers’ Compensation Law, Professors Wex S. Malone and H. Alston Johnson, III note there are several possible interpretations to the terms “characteristic of and peculiar to.” The treatise states at page 464:

“... Another interpretation, considerably broader, would simply require that the claimant single out his disease as having been caused by conditions and causes present in his employment and not by other causes to which he and all the rest of us might have been exposed.”

Malone and Johnson, Workers’ Compensation Law and Practice, § 220 (1980). The text continues to note the primary concern of the Act is to assure work-related diseases are compensated and diseases not caused by employment conditions are excluded from coverage. The concept behind the occupational disease coverage is that when the claimant has proven there is a relationship between the employment and his disease it is only fair that the employment enterprise should bear the cost of his disability.

After carefully examining the record we conclude plaintiff has failed to “single out his disease as having been caused by conditions and causes present in his employment and not by other causes to which he and all the rest of us might have been exposed.” We so conclude because even the testimony most favorable to plaintiff’s position, that of his treating physician, Dr. George Riser, was inconclusive as to whether or not Mr. Page’s condition was caused solely or primarily by the cement dust. (This testimony will be discussed in more detail below).

The record indicates Mr. Page smoked four to five packs of cigarettes a week prior to the time he developed breathing problems and then reduced to three to four packs a week. He continues to smoke today. All of the medical experts (including Dr. Riser) agreed that cigarette smoking was extremely detrimental to anyone having breathing difficulties. It is well set-tied that not only must the plaintiff establish his claim by a preponderance of the evidence, but the claim will be rejected when there are other possible causes of the disease not related to the employment. Bryant v. Magnolia Garment Company, Inc., 307 So.2d 395 (La.App. 2d Cir. 1975). We feel it would be unfair to burden the employer, Prestressed, with the compensation of this disease when it is readily admitted by all that the smoking is at least partially responsible for the condition. Certainly if the medical evidence had shown the majority of the disease was cause by the cement dust, and the smoking only aggravated the condition, we could hold differently. But no such testimony was adduced.

A brief summation of the pertinent testimony presented at trial will illustrate plaintiff has simply failed to show the disease was more likely than not caused by the work conditions. Three medical experts were called by the defendants. Dr. Patrick Hunter, general surgeon, testified he treated Mr. Page on September 15, 1974 at the emergency room of the St. Tammany Parish Hospital. He diagnosed Mr. Page as suffering from acute bronchitis and stated he believed the bronchitis was caused by bacteria rather than by an allergy to a foreign substance. He treated Mr. Page with an antibiotic and noted Mr. Page’s fever was an additional indication that the bronchitis was infectious in nature rather than being of the type caused by inhalation of irritants.

Dr. Rodney Reed, a doctor specializing in internal medicine, testified he treated Mr. Page at East Jefferson Hospital on September 17, 1974. He stated Mr. Page had symptoms of asthma and after being admitted to the hospital responded to a treatment that indicated he had obstructive pulmonary disease (of which asthma is a type). Dr. Reed instructed Mr. Page to stop smoking and stated he would advise a person suffering from this disorder not to work in dusty environments. He opined that if the disease had been caused by the dust it would have recurred more frequently during Mr. Page’s employment at Prestressed.

Dr. Edward Hyman, another doctor of internal medicine who treats many patients with pulmonary disorders, examined plaintiff in December of 1977. He found no significant impairment of the lung function and found Mr. Page to be suffering from asthmatic bronchitis which he described as a chronic condition fed from above by a postnasal drip. He stated the condition was highly treatable with antibiotics. When asked if he thought the disease was caused by the dust at Prestressed he said, “I see no reason to be concerned about that exposure. I think that his entire illness is a natural illness, and again I add, in my opinion, undertreated.” He stated in order for dust to have caused this condition there would have had to have been an intense exposure to the dust. Since Mr. Page worked outdoors Dr. Hyman felt the intensity of the dust could not have caused any significant aggravation. He noted the intensity of the cement dust, outdoors, did not approach the intensity of the thickness of the cigarette smoke.

Plaintiff’s medical expert, Dr. George Riser, began treating plaintiff in May of 1978. At that time he diagnosed Mr. Page as having bronchitis and an occupational exposure to dust. He treated Mr. Page by prescribing various drugs and recommended he stop smoking. (Dr. Riser’s notes reflect Mr. Page cut down, but did not quit smoking). Mr. Page’s condition continued to improve over the years with only one bad spell in September of 1979. Dr. Riser stated he believed this case of bronchitis to be caused by contaminants in the air rather than by an infection. He stated there were two possible causes — cigarette smoking and inhalation of the dust. We quote from the deposition.

“Q. Would you say that Herman Page has industrial bronchitis?
A. There’s a possibility.
Q. Would you say that there’s a probability?
A. Probability, yes. Or that he has some element of his bronchitis has been contributed to by dust exposure. How much, I couldn’t say. (Emphasis added.)
Q. But it’s certainly without any question an aggravating factor in this case?
A. Yes, or it can be, you know — yes.”

When questioned more closely by plaintiff’s attorney about the cigarette smoking, Dr. Riser testified as follows:

“Q. What do you think is the cause of his chronic bronchitis?
A. I think there’s too (sic) possible causes. One is the cigarette smoking, and two is the exposure that he’s had to dust in the past.
Q. Would these things be joint causes of his problems, Doctor?
A. That’s a possibility — probability.
Q. All right, so it is your opinion that it is a medical probability that these two factors together have caused his chronic bronchitis.
A. Correct.
Q. Doctor, will exposure to cement dust cause chronic bronchitis?
A. If it’s to the extent — yes,, it can. It can.
Q. And exposure to cement dust in conjunction with smoking, will that cause chronic bronchitis?
A. Yes.
Q. Will it be more likely to cause chronic bronchitis in an individual who smokes?
A. You mean if they smoke and are exposed to—
Q. And have dust exposure.
A. Repeatedly exposed to dust, I would think it would.
Q. Now, would the cement dust exposure also aggravate the chronic bronchitis—
A. It could.
Q. —in an individual?
A. It could.
Q. And could it makes symptoms of the chronic — will it make symptoms of the chronic bronchitis worse?
A. It could.
Q. And will the cement dust exposure precipitate the onset of symptoms of chronic bronchitis’! (Emphasis added.)
A. That’s hard to answer. I don’t think it would precipitate it. I mean, it might contribute to it, but I don’t know whether precipitate I could go along with that.” (Emphasis added.)

We conclude the medical testimony, when considered as a whole, does not sufficiently establish that the plaintiff’s difficulties were caused by the dust at Prestressed. Even in situations where the testimony is evenly balanced (for each side) the plaintiff has failed in his burden of proof because his evidence must preponderate. Likewise, the plaintiff must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Blacher v. Matlack, Inc., 349 So.2d 916 (La.App. 1st Cir. 1977), writ refused 1977.

The lay testimony presented at trial also failed to establish plaintiff’s claim. In the pretrial order Mr. Page claimed he was forced to leave his job at Prestressed due to his breathing difficulties. Yet several coworkers and supervisors testified at trial Mr. Page told them he was leaving Pre-stressed to go into work for himself and never mentioned his breathing problems as a reason for quitting his job. There is no evidence at all to substantiate his claim. Even Mr. Page conceded his breathing problems were not the cause of his quitting. He testified as follows:

“Q. Alright, now, at the time you left Prestressed Concrete Company, you left because you went to get another job, you wanted to have, wanted to get a job paying more money, didn’t you?
A. I left because I say I left because I was going to try to get me a job doing work for myself when I left there.
Q. When you left Prestressed Concrete Company, it wasn’t because you couldn’t do the work, was it?
A. I didn’t say that, did I? I didn’t say that?”

The testimony continued in this fashion as Mr. Page repeated that he had never said he was leaving Prestressed because of his health.

In light of the above testimony, both medical and lay, we conclude the plaintiff has failed to prove by a preponderance of the evidence his breathing difficulties were caused by the cement dust at Prestressed. Without this causal connection there can be no recovery. Therefore we affirm the judgment of the trial court dismissing the suit. Appellant is to pay all costs of these proceedings.

AFFIRMED.

      . He received treatment in the emergency room at St. Tammany Parish hospital on September 15, 1974. He went to East Jefferson Hospital emergency room on September 17, 1974 and was then admitted to the hospital.

      . On appeal plaintiff has abandoned his claim for total disability and claims only that he is partially disabled.

      . At a later point in his deposition he indicated he may have seen plaintiff in September of 1977 but it seems the records he refers to begin in May of 1978. Apparently plaintiff did not require any medical treatment from September 1974 until he began seeing Dr. Riser.


text:
    WOMACK BROTHERS, INC. v. EQUIPMENT RENTAL SERVICES, INC.
    No. 14134.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Robert C. Funderburk, Jr., Baton Rouge, for plaintiff/appellee.
    J. D. DeBlieux, Baton Rouge, for defendant/appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

Plaintiff, Womack Brothers, Inc., filed this civil action seeking recovery of charges for repairs it made on a diesel fuel-injection pump owned by defendant, Equipment Rental Services, Inc. Additionally, plaintiff prayed for attorney fees under Louisiana Revised Statute 9:2781, alleging that the action was one on open account. Trial on the merits resulted in judgment in favor of plaintiff for the repair charges and attorney fees.

Defendant appealed, complaining that the trial judge erred in the following respects: 1) placing the burden of proof upon defendant to show inadequate repairs; 2) finding that plaintiff proved its case by a preponderance of the evidence; 3) finding that defendant failed to show inadequate repairs; and 4) holding that the suit was one on open account, entitling plaintiff to attorney fees. Plaintiff answered the appeal, seeking an increase in the trial judge’s award for attorney fees and an additional award for attorney fees on appeal.

Only two witnesses testified at trial: Roy LaFleur, general manager for plaintiff-corporation, and Henry L. DeBlieux, owner of defendant-corporation. Mr. LaFleur had worked for twenty-four years with pumps similar to the one involved herein, selling parts and testing them along with mechanics. Mr. DeBlieux had operated and used similar pumps for twenty-two years and had seventeen years of experience as a mechanic on such equipment.

The record contains opinion testimony by both witnesses. However, only Mr. De-Blieux was formally tendered as an expert in the field of fuel-injection pump repair, after objection by plaintiff to questions soliciting opinion testimony from him. Upon his tender as an expert, plaintiff objected on the ground that he had not been properly qualified as an expert. The trial judge ruled that the objection would go to the weight of the evidence and that Mr. De-Blieux would be allowed to render his opinions on the subject. No objection was made to the opinions expressed by Mr. LaFleur. In fact, defendant first solicited such testimony from him.

Mr. DeBlieux testified that he detached the pump from his tractor engine and brought it to plaintiff for testing, because it had developed low horsepower. Plaintiff repaired the pump, and Mr. DeBlieux gave plaintiff a check for the work when he picked it up.

Mr. DeBlieux then installed the pump on the tractor engine and started it. He stated that the engine was “running good” for about twenty minutes and then “just quit”. He removed the pump and found that the engine-mount shaft on which the pump was mounted had broken.

Mr. DeBlieux did not attempt to examine the pump. He returned it to plaintiff, who wanted additional money to repair it. Mr. DeBlieux then took the pump to Crawler, another place of business, and traded it for a new pump. He stopped payment on the check he had given to plaintiff for the repair work.

Mr. LaFleur testified that he checked the pump when Mr. DeBlieux brought it back and that he specifically noted that two “o” rings were on the pump, an old and a new one. He stated that only one “o” ring should be on the pump and that the extra ring probably caused a misalignment which resulted in a side-thrust, causing the pump to seize and the engine-mount shaft to break. Mr. LaFleur also stated that the manufacturer of the pump specifically listed this condition as one of several possible causes for the particular problem found in the pump. He further opined that the old “o” ring could have been mistakenly left on the engine mount when the pump was first removed for repair. Thereafter, when the pump and the new “o” ring were reinstalled, two “o” rings, the old and the new one, would have been on the mounting. He identified a pump produced in court as the pump plaintiff received from Crawler and the one which Mr. DeBlieux had brought to plaintiff for repair. Mr. LaFleur noted that two “o” rings were still on the pump, an old and a new one.

Mr. DeBlieux testified that it was not possible to misalign a pump on an engine mount. He stated that the pump itself had only one “o” ring on it when he installed it on the engine and that he did not know what would result if a pump were installed with two “o” rings instead of only one. Mr. DeBlieux also testified that he did not notice how many “o” rings were on the pump when he returned it to plaintiff after it had seized. Furthermore, he stated that he did not know what had caused the pump to seize, except that it must have been defective in some way.

Regarding the issue of burden of proof, we note that the record reveals the existence of a contract for repair work and that plaintiff did make repairs to the pump, after which it worked well for at least a short time. The alleged defectiveness of plaintiff’s workmanship is an affirmative defense. La.Code Civ.P. Art. 1005; Bohn Ford, Inc. v. Lanza, 347 So.2d 935 (La.App. 4th Cir. 1977). The party asserting an affirmative defense has the burden of proving it by a preponderance of the evidence. Bohn Ford v. Lanza, supra; McDonald v. Champagne, 340 So.2d 1025 (La.App. 1st Cir. 1976). Hence, the trial judge did not err in placing the burden of proving defective workmanship on defendant.

We now turn to the trial judge’s ultimate fadings that plaintiff carried its burden of proof while defendant did not. The record reveals that, after initial repairs, the pump worked properly for a time. Then the pump seized and the engine-mount shaft broke. Defendant offered no explanation for the problem, except that the pump must have been defective in some way. Apparently, defendant relied upon the circumstantial implications of the short time between the repairs and the seizing of the pump in an attempt to establish defective workmanship. Plaintiff, however, offered evidence of another explanation for the problem, i. e. improper installation. This explanation was one specifically listed by the manufacturer of the pump as a possible cause of the problem.

The trial judge assessed the evidence and concluded that plaintiff had carried its burden of proof and that defendant did not show that the repairs were defective. These findings are entitled to great weight on appeal and should not be disturbed unless clearly wrong. After reviewing the record, we cannot say that the trial judge’s findings are clearly wrong; we find no manifest error therein. Arceneaux v. Dominque, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

However, we do find error in the award of attorney fees pursuant to Louisiana Revised Statute 9:2781. The repair work on the pump was a single job, for which defendant tendered payment immediately (although later revoking it). The record contains no evidence of other business transactions between the parties, a line of credit extended to defendant, or any expectation of future dealings. In fact, the invoice for the repair work on the pump, which plaintiff introduced in evidence, specifically refers to the agreement as a “cash” transaction. Under these circumstances, we cannot find that this action is one on open account, entitling plaintiff to attorney fees. Jenkins v. Dicon, Inc., 387 So.2d 649 (La.App. 1st Cir. 1980); Benglis Sash & Door Co., Inc. v. Leonards, 378 So.2d 992 (La.App. 3rd Cir. 1979), rev’d on other grounds, 387 So.2d 1171 (La.1980); Richards v. Gulfco Electronics Corp., 360 So.2d 609 (La.App. 4th Cir. 1978), writ denied, 363 So.2d 69 (La.1978). Accordingly, we also reject plaintiff’s request for attorney fees on appeal.

For the foregoing reasons, the decision of the trial judge allowing the plaintiff’s main demand of $302.10 is affirmed. The portion of the trial judge’s decision allowing attorney fees is reversed. Costs of this appeal are to be borne equally by plaintiff and defendant.

AFFIRMED IN PART, REVERSED IN PART, AMENDED AND RENDERED.


author: CHIASSON, Judge.

text:
    Wayne F. McELVEEN et al. v. STATE of Louisiana, Through MUNICIPAL POLICE EMPLOYEES RETIREMENT SYSTEM.
    No. 14140.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Charley Quienalty, Lake Charles, for plaintiff-appellant Wayne F. McElveen.
    William J. Guste, Jr., Atty. Gen., State of Louisiana, William T. Reeves, Jr., Asst. Atty. Gen., Baton Rouge, for defendant-ap-pellee, State of Louisiana, Through Municipal Police Employees Retirement System.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This is a suit to have part of a law declared unconstitutional. The trial court found no merit in the plaintiff’s suit and therefore dismissed it. The plaintiff appeals the decision reurging the same contentions he urged before the trial court. We have read carefully the entire record and find that the trial court in its written reasons for judgment, a copy of which is attached hereto, correctly disposes of the factual and legal issues presented.

For the reasons expressed by the trial court, which we adopt as our own, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

WRITTEN REASONS FOR JUDGMENT

This class action seeking declaratory and injunctive relief was filed by Wayne F. .McElveen (plaintiff), City Marshal, City of Lake Charles, Ward 3, against the State of Louisiana through the Municipal Police Employees’ Retirement System. Plaintiff sought and was denied admission into that system in 1973. The basis of that denial was a determination by the Board of Trustees that the plaintiff as a city marshal did not meet the definition of employee for purposes of admission into the police retirement system. Those definitions are set forth in R.S. 33:2372 as follows:

“(2) ‘Employee’ shall mean any full time police officer, empowered to make arrests, employed by a municipality of the state of Louisiana and engaged in law enforcement, or an elected chief of police whose salary is at least one hundred dollars per month, and any employee of this system.
(3) ‘Employer’ shall mean any municipality in the state of Louisiana which employs a full time police officer, empowered to make arrests, or which has an elected chief of police whose salary is at least one hundred dollars per month and the Municipal Police Employees Retirement System.
(4) ‘Member’ shall include any employee, as defined in Paragraph (2) of this Section, included in the membership of this system as provided in R.S. 33:2373.”

After the Board refused to admit McElveen to the retirement system, he and several other marshals filed suit to be admitted. In 1974 while that suit was pending, the Legislature amended R.S. 33:2372 to read as follows:

“(2) ‘Employee’ shall mean any full-time police officer, empowered to make arrests employed by a municipality of the state of Louisiana and engaged in law enforcement, earning at least three hundred seventy-five dollars per month excluding state supplement pay, or an elected chief of police whose salary is at least one hundred dollars per month, and any employee of this system. Employee shall not mean a city or ward marshal, nor shall this term be construed to include any elected councilman or mayor of any city, (Emphasis Added)
(3) ‘Employer’ shall mean any municipality in the state of Louisiana which employs a full time police officer, empowered to make arrests, or which has an elected chief of police whose salary is at least one hundred dollars per month, and the Municipal Police Employees' Retirement System.
(4) ‘Member’ shall include any employee, as defined in Paragraph (2) of this Section, included in the membership of this system as provided in R.S. 33:2373. In any case of doubt the board of trustees shall be the sole judge as to eligibility for membership.”

The 1974 amendment clearly excluded McElveen and other city marshals from the definition of employee for purposes of the police retirement system. (City marshals have been placed in another retirement system.) After the amendment was passed, the plaintiff dismissed the suit filed in 1973 and filed the present suit. Petitioner seeks in this suit to have the 1974 amendment which redefined employee for the purposes of the police retirement system declared unconstitutional based on the equal protection clauses of the United States and Louisiana Constitution.

Equal protection analysis has been discussed at length in a number of Louisiana cases. See Everett v. Goldman, La., 359 So.2d 1256 (1978); Succession of Thompson, La., 367 So.2d 796 (1979), and more recently Acorn v. New Orleans, La., 377 So.2d 1206 (1979). The analysis begins by recognizing that the Legislature can classify and differentiate among persons and situations if the difference in treatment or classification furthers some legitimate interest. The key to the analysis is the characterization of the difference in treatment. If the classification or difference in treatment affects some suspect class (a distinction based on race or alienage) or affects a fundamental right (such as the right to privacy, the right to vote, or the right to travel), the court examining the legislation must use a high level of review. At this level of review (“strict scrutiny”), the court must find that a compelling state interest is being furthered by the classification. Absent an effect on a suspect class or a fundamental right, the court must use a lower level of review. This level of review (“minimum rationality”) demands only that the distinction not be arbitrary and be based on practical and reasonable grounds relative to the interest sought to be furthered. This is the level of review with legislation in the social and economic area. In addition, there is a third or middle level of review which has been used by the courts in cases involving gender and birth status classification.

The petitioner urges the court to adopt the highest level of review which would demand a compelling interest on the part of the state in excluding city marshals from the Police Retirement System. The court cannot agree that this is the appropriate level of review. The exclusion of city marshals is not a distinction based on race or alienage nor does it affect a fundamental right. Neither is the distinction based on gender or birth status which would trigger an intermediate level of review. The appropriate level of review is “minimum rationality,” and the function of the court is to determine whether the distinction is arbitrary or whether it is based on some rational and reasonable ground relative to the interest sought to be furthered.

The state has an obvious interest in providing retirement systems for its employees and making these systems available to other municipal employees. To this end, the Legislature has established a number of retirement systems. The Legislature determines the categories and qualifications for each system based on its perceptions of the needs of the persons involved relative to the functions of their employment. In R.S. 33:2373 the Legislature has excluded marshals from the Municipal Police Employees’ Retirement System. The plaintiff contends that this exclusion is totally arbitrary and unrelated to any legitimate interest; the court does not agree.

The basis of the “minimum rationality” level of review is that the courts should defer to an accommodation of interests made at another co-equal branch of government. The Legislature has placed city marshals and municipal police officers in different retirement systems. Obviously it has distinguished the needs of the two relative to the functions of their employment. The court does not find the distinction arbitrary or unreasonable. Although policemen and city marshals may belong to a broad category of law enforcement personnel whose functions overlap, there are essential differences in their functions and sources of authority.

R.S. 13:1881 sets forth the functions of the marshal. The marshal is the chief executive officer of the court and when he is executing orders of the court he has the powers of a sheriff. A policeman has been defined by the courts as a “member of an organized civil force for maintaining peace and order, preventing and detecting crime and enforcing the law.” Tezeno v. Maryland Casualty Company, 166 So.2d 351, La.App. 3rd Cir. (1964). In general contemplation, the peace-keeping aspect of the policeman’s functions includes routine patrolling, investigating and answering of emergency calls. The routine functions of the marshal do not include these activities. He may, in the course of his employment, perform one or the other of these functions on occasion, but the fact remains that his principal duties do not include these activities. The policeman is not the executive officer of the court, nor does his authority extend only from the City Court when he is executing orders and mandates of that court. These are basic distinctions which could trigger different considerations by the Legislature in setting up retirement systems.

The Legislature has placed marshals in the Municipal Employees’ Retirement System and policemen in the Municipal Police Retirement System. This is a legislative function and determination. In light of the above discussion, the court cannot say the distinction between the two is arbitrary or completely unrelated to any legitimate interest.

For the reasons set forth, plaintiff’s suit is dismissed at his cost.


author: COVINGTON, Judge.

text:
    Alan A. TROY v. Henry N. BRETZ, Jr. (Bretz Builders).
    No. 14142.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Alan A. Troy, in pro. per.
    Chapman L. Sanford, Baton Rouge, for defendant-appellant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by a building contractor, Henry N. Bretz, Jr. (Bretz Builders), from a judgment in favor of a homeowner, Alan A. Troy, in the amount of $1,549.07, with legal interest and costs. We affirm.

This action began as a breach of contract suit brought by the homeowner, Mr. Troy, against the contractor, Mr. Bretz. The parties entered into a written contract dated December 29, 1978, by which the contractor agreed to make certain home repairs, for $3,200.00, brought about by water leaking for a period of time into Troy’s house from an area near the bathroom window. The evidence showed that Troy and Bretz looked over the leakage problem and that the homeowner pointed out that the leak was a chronic problem and, in effect, it was up to the contractor to ascertain the problem and make the necessary repairs to fix the leak, for a definite price. The contractor entered into the agreement and undertook the repairs. After completion of the repairs, Bretz received payment of the contract price. However, shortly thereafter, the leak reappeared in the same location.

Subsequently, the contractor refused to make any further attempt to repair the leak; however, he did agree to allow Troy to get certain flashing installed in the window area (which Bretz recommended as a solution to the problem) and agreed to pay half the cost of the flashing work. Despite the addition of the flashing, the leak continued to be a problem. Finally, Mr. Troy employed Carl Micheli to make the necessary repairs to stop the leak at a cost of $1,549.07.

It is implied in every building contract that the work of the contractor (builder) will be in a good, workmanlike manner, free from defect either in material or workmanship. Standard Roofing Company, Inc. v. Ragusa Brothers, Inc., 338 So.2d 119 (La.App. 1 Cir.1976); Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2 Cir.1974).

The basic law in regard to a contractor’s liability for failure to perform properly a building contract is found in LSA-C.C. art. 2769, as follows:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

The plaintiff claims that he contracted with the defendant to perform several items of home repair, one of which was to determine the source of and repair a leak in the vicinity of a bathroom window, but that the defendant breached the contract. The defendant’s position is that the leak was a roof leak rather than a window leak; and that the homeowner compromised by accepting half of the cost of installing the flashing.

The thrust of the defense is that there was no agreement between Troy and Bretz because it was not contemplated that extensive repairs to roof and siding would be required to fix the leak. We find the evidence shows the object of the undertaking contracted by the defendant was to stop the existing leak. If the cause of the leak was the roof, the defendant should have noticed it and declared it to the plaintiff. The evidence shows that the defendant failed to make the repairs in a workmanlike manner; and thus, he breached the contract with Troy and is liable in damages therefor.

On the question of compromise, we find that the evidence does not support the defendant’s contention on this issue. LSA-C.C. arts. 3071 and 3073. It is clear from the testimony of Mr. Troy that the compromise was in regard to certain flashing work that Mr. Bretz recommended as a possible solution to the leakage problem, and not to the leakage problem. A compromise only extends to the differences which the parties intended to include therein. LSA-C.C. art. 3073.

The case of Jones v. Tharpe Brothers Builders, Inc., 335 So.2d 709 (La.App. 2 Cir.1976), relied on by the defendant, is factually distinguishable. In Jones, there were complaints of defects prior to the final payment and the contractor agreed to accept a lesser amount in settlement. There was no such agreement here.

We find the damages awarded by the trial court proper, in line with the law, and supported by the evidence. Under LSA-C.C. art. 1934, such damages are recoverable as reasonably contemplated by the parties.

For the assigned reasons, the judgment appealed is affirmed at the appellant’s costs.

AFFIRMED.

      . Art. 3071:
      “A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
      “This contract must be reduced into writing.”
      Art. 3073:
      “Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
      “The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises.”


author: PONDER, Judge.

text:
    SLIDAMAR, INC. v. JEFFERSON STANDARD LIFE INSURANCE COMPANY.
    No. 14145.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Henry L. Klein, New Orleans, for plaintiff-appellant.
    R. Patrick Vance, New Orleans, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment of the trial court ordering it to compute its mortgage payments to defendant on the basis of “gross sales”.

The issues are: ambiguity of the contract and interpretation thereof by the court.

We affirm.

Following two years of negotiations, plaintiff signed a promissory note and mortgage in favor of defendant for $975,-000.00. The note provided for interest at the rate of 9'/2 percent per annum plus 15% of “annual room revenues” in excess of $370,000.00. Three years after the agreement was signed, plaintiff for the first time contended that the phrase “annual room revenues” meant “gross sales less the cost of sales” rather than “gross sales”. It paid the interest calculated on gross room sales under protest and then filed suit for a declaratory judgment to define the phrase “annual room revenues” as it contends or in the alternative to declare the clause void for vagueness. The court ordered plaintiff to compute its interest on the basis of gross room sales.

Plaintiff’s claim that the contract is ambiguous and should be construed against defendant is without merit. The loan application, addendum (prepared by defendant), loan commitment and other correspondence between the parties over a two year period reveal the terms “gross room sales” and “annual room revenue” were used interchangeably. We find no error in the court’s determination that it was the mutual intent of the parties to base plaintiff’s additional interest on participation in “gross room sales”.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    In the Interest of John Wayne FRANKLIN.
    No. 14146.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Edselle Cunningham, Baton Rouge, for State of Louisiana.
    Kathleen Richey, Baton Rouge, for defendant.

      Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal from a juvenile proceeding in which John Wayne Franklin was adjudicated a delinquent pursuant to LSA-C.J.P. art. 13, (12) and (7).

The petition alleged in nine counts that John W. Franklin, age 16, was delinquent in that on or about April 29, 1980,

“1.
“said juvenile violated La.R.S. 14:62, in that he participated in the burglary of a 1978 Chevrolet van, Florida license number CCS840, belonging to Topaz, Incorporation and operated by Dana Moseley. Said offense occurred in the 400 block of St. Phillip Street, Baton Rouge, Louisiana;
“2.
“further, on or about April 29, 1980, said juvenile violated La.R.S. 14:62, in that he participated in the burglary of a Chevrolet Monte Carlo, bearing Louisiana license number 341A908, belonging to Deborah Hutzler. Said offense occurred in the 400 block of St. Phillips Street, Baton Rouge, Louisiana;
“3.
“further, on or about April 29, 1980, said juvenile violated La.R.S. 14:62, in that he participated in the burglary of a 1978 Ford van, bearing Louisiana license number T241937, belonging to Brendon Leger. Said offense occurred in the 500 block of St. Phillips Street, Baton Rouge, Louisiana;
“4.
“further, on or about April 29, 1980, said juvenile violated La.R.S. 14:67, in that he participated in the theft of one (1) pair of prescription glasses, valued at $100.00 and (1) ladies’ wallet, valued at $30.00, belonging to Brendon Leger. Said offense occurred in the 500 block of St. Phillips Street, Baton Rouge, Louisiana;
“5.
“further, on or about April 29, 1980, said juvenile violated La.R.S. 14:62, in that he participated in the burglary of a 1975 Oldsmobile Cutlass, bearing Louisiana license number 59K372, belonging to Patrick Holloway. Said offense occurred in the 500 block of St. Phillips Street, Baton Rouge, Louisiana;
“6.
“further, on or about April 29, 1980, said juvenile violated La.R.S. 14:62, in that he participated in the burglary of a 1980 Pontiac Grand Prix, bearing Louisiana license number 684B395, belonging to Marcia Dupuy. Said offense occurred in the 500 block of St. Phillips Street, Baton Rouge, Louisiana;
“7.
“further, on or about April 29, 1980, said juvenile violated La.R.S. 14:67, in that he participated in the theft of one (1) purse belonging to Lisa Dupuy and one (1) purse belonging to Janet Major, having a total value of $100.00. Said offense occurred in the 500 block of St. Phillips Street, Baton Rouge, Louisiana;
“8.
“further, on or about April 29, 1980, said juvenile violated La.R.S. 14:62, in that he participated in the burglary of a 1975 Chevrolet Monte Carlo, bearing Louisiana license number 192A997, belonging to Charles White. Said offense occurred in the 500 block of St. Phillips Street, Baton Rouge, Louisiana;
“9.
“further, on or about April 29, 1980, said juvenile violated La.R.S. 14:62, in that he participated in the burglary of a 1974 Oldsmobile Cutlass, bearing Louisiana license number 105X605, belonging to James Barton. Said offense occurred in the 500 block of St. Phillips Street, Baton Rouge, Louisiana; ...”

The trial court found John W. Franklin guilty on counts 3, 4, 6, 7, 8 and 9; he was acquitted on counts 1, 2 and 5, three counts of burglary. Thus, he was convicted on four counts of simple burglary (LSA-R.S. 14:62), and two counts of theft of property, each count of $100.00 or more, having a total value of $230.00 (LSA-R.S. 14:67).

He was adjudicated a delinquent on July 28, 1980, and at the disposition hearing on September 15, 1980, he was committed to the custody of the Louisiana Department of Corrections for a term not to exceed 4 years and 2 months.

On appeal, Franklin urges the following Specifications of Error:

“I. There was a complete lack of evidence as to the offense alleged in count eight of the petition and the trial court erred in denying the defense motion for a direct verdict of acquittal as to count eight.
“II. The State failed to carry its burden of proof beyond a reasonable doubt of all essential elements as to the offenses alleged in counts three, four, six, seven and nine and the trial court erred in denying the defense motion for a directed verdict of acquittal as to these counts.”

The appellant first contends that, as to count eight of the petition, the State produced no evidence of the essential elements of the offense charged, which was the burglary on April 29, 1980 of a 1975 Chevrolet Monte Carlo automobile belonging to Charles White while it was parked in the 500 block of St. Phillips [St. Philip] Street.

The United States Supreme Court stated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that in federal habeas corpus cases the standard of review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. The appellant contends that the reasonable doubt standard of review enunciated in Jackson v. Virginia, supra, must be used in the present case. We agree. This State has now adopted the Jackson standard of review when evaluating allegations by defendants that the prosecution presented insufficient evidence to prove an essential element of the crime charged beyond a reasonable doubt. State v. Abercrombie, 375 So.2d 1170 (La.1979), cert. den. 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980); State v. Roy, 395 So.2d 664 (La.1981). Although juvenile proceedings are not “criminal cases,” a juvenile is entitled to the protection of the due process clauses of the 14th Amendment to the United States Constitution, and to all the attendant safeguards guaranteed to anyone accused of a crime. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In the Interest of Day, 378 So.2d 511 (La.App. 4 Cir. 1979); State v. Schexnaydre, 215 So.2d 370 (La.App. 4 Cir. 1968). Likewise, the burden of proving the charges against a juvenile and the standard of review of the sufficiency of the evidence is no less than against an adult. See In the Interest of Day, supra; In the Interest of LaRocca, 363 So.2d 1325 (La.App. 4 Cir. 1978). We find upon review that the State carried its burden of proof.

On the night of April 29, 1980, Detective Pat Walsh, while checking, along with his partner, Detective D’Amico, parked vehicles in the area around the Baton Rouge Centro-plex, heard glass breaking in the 400 block of St. Phillips Street. At that time, he observed three or four young black males moving among the vehicles parked at the rear of an L-shaped parking lot in the 400 block of St. Phillips. He again heard the sound of glass breaking as he walked closer to the parking lot. He also radioed for back-up units.

As the detective (who was wearing plain clothes) walked toward them, they moved away, walking to a grassy parking lot behind the 500 block of St. Phillips Street. Detective Walsh testified that he hid behind a vehicle and observed the culprits, who were one-half of a block away from him. From this position, he could see the subjects moving among the parked cars, throwing rocks at the windows, and he could hear glass breaking.

While the officer was observing them, several people walked by the area, causing the subjects to again relocate. The youths walked from the parking lot to the street between the 500 and 600 blocks of St. Phillips Street. As they entered the intersection of that street, they passed into an area which was brightly lit from the lights of the V B C building, so that the officer was able to clearly see the individuals and to identify Franklin as one of the subjects.

After the group walked down the street between the 500 and 600 blocks of that street, Detective Walsh moved from his place of observation. He walked south on St. Phillips to the doorway of a building in the 500 block. As the officer approached the doorway, he saw Franklin, whom he recognized as one of the youths he had observed earlier, standing on St. Phillips Street, at a point at the end of the street which divides the 500 and 600 blocks of that street. Detective Walsh ducked into the doorway of that building and observed the defendant for a period of time. As he watched Franklin, the defendant stood on the corner and looked up and down that street and also the side street. Officer Walsh then instructed the back-up units to move in.

Detective Walsh and his partner walked down St. Phillips Street toward the defendant. Upon seeking the officers approaching him, Franklin yelled and waved to the other black youths, who were on the side street between the 500 and 600 blocks of St. Phillips Street. Following the defendant’s warning, the youths ran from the side street and were chased by Detective Wilson and a uniformed officer (who had responded to the radio call), but they were unable to apprehend them. After he had alerted the youths, Franklin then proceeded south on St. Phillips Street toward Steinberg’s where he was apprehended by Detective Wilson.

Following testimony in which he identified Franklin as one of the youths observed on the evening of April 29, 1980, Walsh identified the damaged vehicles which he found in the 500 block of St. Phillips Street. He found the windows broken in a 1980 two-door, blue Grand Prix, and a brown over beige Oldsmobile Cutlass. Detective Walsh gave the license plate number of the Oldsmobile and stated it was registered by Mr. Holloway. In his testimony, the detective described the damaged automobiles, giving their license numbers and registered owners. He testified that he returned to the areas where he had observed the youths moving among the parked vehicles and had heard the sound of glass breaking, and found seven vehicles which had been broken into by the subjects. He also found purses, wallets, credit cards, and checkbooks which had been taken from some of the vehicles. Detective Walsh was testifying that the vehicles described in each burglary count of the petition were the same vehicles which he found broken into in the area where he observed the several young persons moving among the parked cars and where he heard the sound of breaking glass, but before the officer could identify Mr. White’s car as having been damaged while having been parked beyond the 500 block of St. Phillips Street on the night in question, defense counsel interrupted Detective Walsh’s testimony to make the following stipulation:

MRS. RICHEY: Your honor, to expedite this matter, I would stipulate that the damage that has already been testified to, was in fact the damage that this officer would testify to.

Charles White testified that his son, Douglas White, was driving his car on the night of April 29,1980. Mr. White testified that his car is a two-door, 1975 Monte Carlo. Mr. White stated that when his son returned the car that night, the vent window on the driver’s side of the automobile had been broken without his permission. Mr. White’s testimony was corroborative of that of Officer Walsh.

The broken window concerning which Mr. White testified to, along with the officer’s testimony, was sufficient evidence of an unauthorized entry, since the car was parked in the same area where Detective Walsh observed the group of boys and heard the glass breaking. From the fact that property was taken from several vehicles parked in the same area as the White automobile, and which vehicles had sustained the same damage in entry as had Mr. White’s vehicle, it can be inferred that the perpetrators also intended to commit theft from Mr. White’s car. Although intent is a question of fact, it need not be proven as a fact and may be inferred from the circumstances surrounding the commission of the offense. State v. Anderson, 343 So.2d 135 (La.1976); State v. Robinson, 315 So.2d 268 (La.1975). The State presented ample evidence that Franklin had the active desire to commit a theft in the White automobile. The State provided sufficient evidence of all essential elements of count eight of the petition, and the Family Court was correct in its judgment. The defense’s contention that there was no evidence that Mr. White’s vehicle was in the 500 block of St. Phillips Street on April 29,1980 and that there was no evidence of an unauthorized entry is without merit. By the stipulation, defense counsel admitted that Detective Walsh would have testified that he had seen Mr. White’s damaged vehicle on the night of April 29, 1980 when it was parked in the 500 block of St. Phillips Street. From the foregoing, a rational factfinder could have found beyond a reasonable doubt that Franklin participated in the burglary of White’s vehicle.

The appellant further argues as to the remaining counts, that the State failed to prove beyond a reasonable doubt that Franklin participated in these burglaries and thefts. The defendant maintains that Detective Walsh did not see Franklin until he was already standing on the corner of St. Phillips Street and the side street which divides the 500 and 600 blocks of St. Phillips Street, when Detective Walsh saw him looking up and down St. Phillips Street and the side street. The record does not support the appellant’s position.

Detective Walsh testified that he first observed the boys in the L-shaped parking lot in the 400 block of St. Phillips Street. He could see the youths well enough to observe that they were black, all about the same height, and approximately fifteen to seventeen years old. Detective Walsh stated he observed them in close proximity to a number of the vehicles and could hear glass breaking.

Detective Walsh then observed all of the subjects move to the parking lot behind the 500 block of St. Phillips Street. The parking lots were lit by streetlights and floodlights from the warehouses. Detective Walsh testified that when the subjects moved to the parking lot, he moved to a point of observation which was one-half of a block away from them. He stated that although the grassy parking lot was dimly lit, he could see the subjects moving among the vehicles throwing rocks at the car windows.

The officer further testified that, when passersby approached, all of the subjects who had been in the grassy parking lot then moved to the side street between the 500 and 600 blocks of St. Phillips Street. While they were changing locations, the subjects walked underneath the bright lights of the V B C building which were shining on the corner of the side street. At that point, Detective Walsh could clearly see the subjects and he positively identified Franklin.

The defendant also contends that Franklin could not have been one of the subjects because he did not flee, had no stolen property on his person, and had no glass on his clothing. These are merely factors to argue to the trier of fact and for him to consider in weighing the evidence. They do not necessarily lead to the conclusion that Franklin was not a perpetrator of or a participant in the crimes in question.

The defendant further contends that the State did not prove that Franklin was waving and yelling a warning to the subjects, who were on the side street. The record reflects that Detective Walsh said he saw the subjects move into the side street. The detective then walked to St. Phillips Street where he observed Franklin, whom he recognized as one of the subjects, standing on the corner of St. Phillips Street and the side street. The officer testified he saw the defendant yell and wave in the direction of the other subjects on the side street. The other youths then fled the scene. Franklin, at the trial, denied being involved with the young black males who had burglarized the parked vehicles, stating that he had gone to the concert in the Centroplex. He testified that he left the concert early. He said he stood on the corner for about twenty minutes and watched the police pursue some people. He denied warning the group of youths by waving or yelling. He stated that after standing on the corner, he then proceeded down the street and was arrested by the police.

The appellant asks this Court to utilize the adverse presumption of LSA-R.S. 15:432, because Officers D’Amico and Wilson, who aided Detective Walsh, did not testify. However, both officers were subpoenaed by the State to testify in this matter and were domiciliary served, but failed to appear. Under these circumstances, the presumption of LSA-R.S. 15:432 does not apply; their absences were adequately explained. There is no adverse presumption under such circumstances. The defense was, moreover, given an opportunity to argue the effect of the adverse presumption, if any. Even assuming that the testimony of these officers could be considered adverse to the State, there was sufficient evidence in the record to overcome the rebut-table presumption that this testimony would favor the defendant rather than the State. See LSA-R.S. 15:432; State v. Bonanno, 373 So.2d 1284 (La.1979).

Article 73 of the Code of Juvenile Procedure sets forth in pertinent part the burden of proof imposed upon the State in delinquency proceedings:

“If the petition requests that the child be adjudicated a delinquent, the state shall prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition ... . ”

In juvenile proceedings, the scope of this court’s review extends to both law and fact. La.Const. Art. 5, Section 10; State in Interest of Giangrosso, 385 So.2d 471 (La.App. 1 Cir. 1980). Therefore, we must decide if the Family Court was clearly wrong in its determination that Franklin was proven guilty beyond a reasonable doubt.

After carefully considering the entire record, we conclude that the Family Court was not manifestly erroneous or clearly wrong in its finding that Franklin was guilty as charged beyond a reasonable doubt of the four counts of simple burglary and two counts of theft. See State in Interest of Giangrosso, supra.

Accordingly, the judgment of the Family Court is affirmed.

AFFIRMED.


author: LEAR, Judge.

text:
    Charlotte RAHM v. EXXON CORPORATION and Gwendolyn B. Calhoun.
    No. 14149.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Stanley K. Hurder, Baton Rouge, for plaintiff Geraldine Dickerson.
    Sumpter B. Davis, III, Baton Rouge, for defendant/plaintiff Charlotte Rahm.
    Nelson W. Wagar, III, New Orleans, for defendant Exxon Corp.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiff, Charlotte Rahm, filed this civil action seeking recovery for damages suffered as the result of an alleged physical attack upon her by Gwendolyn Calhoun at a car wash where Ms. Calhoun worked. Plaintiff named as defendants both Ms. Calhoun and her employer, Exxon Corporation. The case was consolidated for purposes of trial with another case arising out of a related incident at the car wash on the same day. In this second case, Ms. Rahm was named as defendant by Geraldine Dickerson. Ms. Dickerson alleged that Ms. Rahm had physically attacked her.

After trial on the merits, judgment was rendered in favor of Ms. Rahm and against defendants in the instant case. However, in the other ease, judgment was rendered against Ms. Rahm and in favor of Ms. Dickerson: Exxon Corporation appealed from the judgment in the instant case. No other appeal was perfected.

On appeal, Exxon contends that the trial court was clearly wrong in finding that Ms. Calhoun, Exxon’s employee, attacked Ms. Rahm without just provocation. Exxon argues that the “Aggressor Doctrine” should have been applied in this case.

A plaintiff may not recover damages for a battery if the evidence establishes that he is at fault in provoking the difficulty in which he was injured. Each case depends on its own peculiar facts and circumstances. Resort must be had to the evidence to determine who was the aggressor. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (La.1969).

On March 9, 1979, Ms. Dickerson, a black woman, and Ms. Rahm, a white woman, both brought their automobiles to the Exxon car wash. Construction was in progress on the premises in the area of approach to the wash itself. Apparently, the area in which cars should have lined-up was not marked with certainty.

We recount the testimony regarding both incidents in order to reveal the total circumstances under which the incident at issue on appeal occurred. Ms. Dickerson testified as follows: She was in line when Ms. Rahm drove up and called to her to move her car back. Ms. Dickerson simply ignored this directive; and Ms. Rahm then got out of her automobile, approached Ms. Dickerson’s car, and told her to “move back, nigger.” Ms. Dickerson continued to ignore Ms. Rahm. Then, Ms. Rahm returned to her automobile and proceeded to bump her car into Ms. Dickerson’s automobile. Still, Ms. Dickerson ignored Ms. Rahm. Ms. Rahm then walked up to Ms. Dickerson’s car, leaned through the open window, punched her, scratched her, and called her names. Ms. Dickerson then went into the car wash office. Ms. Rahm followed her into the office and said: “Nigger, I told you I’s gonna beat your ass.” Several other persons were present. Ms. Dickerson returned to her automobile after it had been washed and left the scene.

Ms. Rahm’s testimony with regard to the first incident was to the following effect: Ms. Rahm was in line at the car wash when Ms. Dickerson approached and drove her car in line ahead of Ms. Rahm. Ms. Rahm honked her car horn and waved. Ms. Dickerson ignored her. Ms. Rahm then walked over to Ms. Dickerson’s car and asked her to move. Ms. Dickerson refused to do so, and Ms. Rahm simply returned to her car. Ms. Rahm admittedly referred to Ms. Dickerson as a “nigger” but only after Ms. Dickerson had called her “a whore, a white bitch, a white honky, a trashy.” Ms. Rahm entered the office after her car had proceeded through the wash. She had no further exchange with Ms. Dickerson.

Regarding the second incident, the one with which this appeal is directly concerned, Ms. Rahm testified as follows: When her car had been washed, Ms. Rahm paid her bill and went outside to the area in which the car was being dried and wiped-down by Ms. Calhoun. Ms. Rahm asked Ms. Calhoun to wipe the console, to which Ms. Calhoun replied: “I’m not going to clean your car. I don’t have to take any orders from you, you white honky.” Ms. Rahm told Ms. Calhoun that she would do it herself, took the bottle of cleaning fluid and the rag out of Ms. Calhoun’s hand, and turned around to get inside the car. At this point, Ms. Calhoun and possibly one other person jumped on her back and battered her. An unidentified man interrupted the fight. Ms. Rahm escaped to the office and requested to speak with the manager. He was not there, so she left.

Ms. Calhoun testified as follows: She had spoken with Ms. Dickerson, who had informed her of the first incident; and she later recognized Ms. Rahm as the other woman involved in that first incident. While Ms. Calhoun was wiping-down the automobile, Ms. Rahm complained that she was not cleaning it to her satisfaction. Ms. Rahm’s tone of voice was rude, and Ms. Calhoun told her that if she could not speak any nicer then she should leave the premises. Ms. Rahm responded that she need not speak nicely to a “nigger”. Ms. Calhoun stepped away from the car and put down her rag and cleaning fluid. Ms. Calhoun felt an impact from some object and thought Ms. Rahm was attacking her. When asked why she thought that Ms. Rahm was attacking her, Ms. Calhoun replied: “Because of her state of mind. She was angry, she was screaming, she was hollering, she was calling names.” Ms. Calhoun further stated that she was “defending herself against whatever might have been.” Ms. Calhoun then admittedly struck Ms. Rahm, and a fight ensued. Other employees stopped the fight. In later testimony, Ms. Calhoun stated that Ms. Rahm had struck her first when she picked up the rag and cleaning fluid, all in one motion.

The trial court issued written reasons for the judgments in both cases. It opined that the second incident (during which Ms. Rahm was attacked) was the result of the first incident. The court stated that it felt that the initial racial slurs uttered by Ms. Rahm had been heard or communicated to Ms. Calhoun and other Exxon employees, who were black. The court specifically stated that Ms. Calhoun’s attack on Ms. Rahm was unjustified.

The trial court is in the best position to assess the credibility of the witnesses and the totality of the evidence. Its determination of factual issues will not be disturbed on appeal unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973). After carefully reviewing the record herein, we cannot say that the trial court’s finding that plaintiff was battered without just provocation is manifestly erroneous.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are to be borne by appellant, Exxon Corporation.

AFFIRMED.


text:
    James Donald PIERROTTI and Vickie Rulf Pierrotti v. ASSOCIATED INDEMNITY CORP., Mrs. Manuella N. Torres and Allstate Insurance Company, Louisiana Department of Transportation and Development. Jose FUENTES, Jr. and Ophelia Fuentes v. James Donald PIERROTTI et al.
    Nos. 14150, 14151.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Paul C. Tate, Tate, Tate & Tate, Mamou, Thomas L. Mahfouz, Lippman, Mahfouz & Martin, Morgan City, for plaintiffs.
    Charles C. Culotta, Jr., Patterson, for Manuela N. Torres.
    Robert M. Mahony, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abel, Lafayette, for third party plaintiffs James D. Pierrotti, Vickie Pierrotti, Haywood Rulf, Associated Indemnity Corp. and original defendants.
    Richard D. Chappuis, Jr., Voorhies & Labbe, Lafayette, for third party plaintiff, Associated Indemnity Corp.
    L. Lane Roy, Davidson, Meaux, Sonnier & Roy, Lafayette, for third party plaintiff, Allstate Insurance Co.
    David K. Balfour, Asst. Gen. Counsel, Baton Rouge, for La. Dept, of Transportation & Development, Office of Hwys.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

These consolidated suits arise from an intersectional collision between two vehicles in Berwick, Louisiana, where an off ramp of U.S. Highway 90 East intersects Louisiana Highway 182.

On the afternoon of May 19, 1977, Vickie Rulf Pierrotti (Vickie), was driving her father’s (Heywood Rulf) 1968 Chevrolet on Highway 90. She was descending on the off ramp leading into the town of Berwick. No one was in the car with Vickie at the time as she traveled in the right hand lane of the two lane ramp. Associated Indemnity Corporation (Associated) provided both liability and uninsured motorist coverage to the Rulf vehicle. Allstate Insurance Company (Allstate) provided uninsured motorist coverage under a policy issued to Vickie’s husband, James Donald Pierrotti.

Manuella N. Torres, driving her 1977 Buick Skylark, had left the town of Ber-wick proceeding in a westerly direction on Highway 182, a divided four lane highway. She turned left and proceeded in a southerly direction to enter the “on” ramp of Highway 90 going easterly to Morgan City. As she proceeded to cross Highway 90, she was struck on the right rear by the vehicle driven by Vickie. Mrs. Torres had no insurance coverage on her vehicle. Mrs. Ophelia Fuentes and Arthur Dwiggins were guest passengers in the Torres vehicle.

Vickie, Mrs. Fuentes, and Mrs. Torres all claimed to have been injured in the collision and have made their respective demands. The parties and their claims in suit lb 14,-150 are outlined below whereas the parties and their demands in suit # 14,151 are discussed in a separate opinion rendered this day.

Vickie and her husband, .plaintiffs in suit # 14,150, seek to recover for the injuries sustained by Vickie in the collision. Named as defendants in their suit are Mrs. Torres, Associated, Allstate, and the State of Louisiana, through the Department of Transportation and Development (Department of Highways). Judgment was rendered against Allstate, but it has paid its portion and was released by the plaintiffs.

Mrs. Torres answered the petition asserting affirmatively that Vickie was contribu-torily negligent, that she had the last clear chance to avoid the accident, and that Mrs. Torres had preempted the intersection. She filed a reconventional demand against Pier-rotti, Rulf, and Associated and she and the defendants in reconvention filed a third party demand against the Department of Highways claiming that the design, construction, and maintenance of the highway at this intersection caused or contributed to the accident.

The intersection in question had only been open for about a month’s time. This was the first time Mrs. Torres traveled the road and she was somewhat confused as to which approach to take. There were no directional or regulatory (stop or yield) signs at the intersection when the collision occurred.

Mrs. Torres slowed and stopped at the intersection, she looked both ways but did not see Vickie on the off ramp and proceeded to cross the intersection. She knew that at uncontrolled intersections vehicles approaching from the right have the right of way.

Vickie saw the Torres vehicle coming to a stop. She then looked to her right at a vehicle stopping at the other corner of the intersection. She then saw the Torres vehicle entering the intersection and, although she applied her brakes, she struck the right rear of the Torres vehicle just as it was about to clear the intersection. Vickie testified that she was unable to move to her left to avoid the collision because there was a vehicle in the left lane of travel right behind her.

The trial court found that the accident occurred in the southwest quadrant of the intersection when the right front of the vehicle driven by Vickie struck the right rear side of the Torres vehicle. It also found that both drivers had unobstructed views of each other and that Mrs. Torres did stop and look at the intersection.

The court concluded that the failure of Mrs. Torres to see what she should have seen was negligence and the sole proximate cause of the accident. It also concluded that the State of Louisiana was negligent in failing to put regulatory signs at the intersection and in designing the intersection. Although it was found negligent, the State was absolved from liability because the court concluded that its negligence was not a proximate cause of the accident. No negligence was found on the part of Vickie Pierrotti.

Judgment was rendered on the Pierrottis’ main demand against Associated as the uninsured motorist carrier of the Rulf vehicle (up to its policy limits), Mrs. Torres as the tortfeasor, and Allstate, the uninsured motorist carrier of James Pierrotti (up to its policy limits). James Pierrotti, on behalf of the community, was awarded $10,256.36 for special damages while Vickie, individually, was awarded $25,000.00. The third party demands of Associated and Allstate against Mrs. Torres were maintained. The court dismissed the reconventional demand of Mrs. Torres and all third party demands against the Department of Highways.

From this judgment, Associated and the Pierrottis have devolutively appealed. No appeal has been taken by Mrs. Torres, and therefore the judgment is final as to her.

The Pierrottis assign as error the ruling of the trial court that the negligence of the Department of Highways was not a proximate cause of the accident. In addition, they contend the court erred in limiting its award of damages to Vickie to the sum of $25,000.00.

Associated, as the uninsured motorist carrier, also contends that the trial court erred in its ruling that the negligence of the Department of Highways was not a proximate cause of the accident. Associated further contends that the trial court erred in failing to find Vickie Pierrotti negligent and that this negligence was the sole or concurrent proximate cause of the accident.

The appellants’ first argument is premised on the fact that the trial court found the Department of Highways negligent and the Department has failed to appeal this finding. They contend that this issue is therefore final. They aver it only needs to be shown, on appeal, that this negligence was the proximate cause of the accident for them to prevail.

This premise is not sound. We recognize the fact that the Department of Highways has failed to appeal or answer the appeal on this particular finding and speculate the reason is that it was a prevailing party at the trial level. A recent decision of the Supreme Court sheds some light on this matter. In Chester G. Bond, et ux. v. Commercial Union Assurance Co., et al., Docket No. 80-C-1965 (April 6, 1981), the Court addressed the problem of a party raising an overrruled exception on appeal even though he has neither appealed nor answered the appeal. The Court concluded that:

“... C.C.P. arts. 2082 and 2133 were not designed to require a successful party to insure his judgment below by appealing every adverse ruling on an interlocutory order simply because the appellate court may overturn the trial court’s final decision in his favor on the merits.” Bond, supra.

The same rationale is applicable here. Since the Department of Highways received a favorable judgment at the trial level, there was no need to appeal a finding of fact and law by the trial court simply because such a finding could be reversed on appeal. We consider the finding of the trial court as to the negligence of the Department of Highways a viable issue presently susceptible to review by this court.

The trial court first found the Department of Highways negligent but then concluded that this negligence was not a proximate cause of the accident. Under the recent decisions of both the Supreme Court and the Courts of Appeal, the courts have used the duty/risk analysis instead of the proximate cause approach to determine the liability of a defendant. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); Hebert v. Maryland Cas. Co., 366 So.2d 1044 (La.App. 1st Cir. 1978); Kane v. Braquet, 368 So.2d 1176 (La.App. 3rd Cir. 1979); Becnel v. St. John the Baptist Parish Police Jury, 364 So.2d 1074 (La.App. 4th Cir. 1978); See Malone, Ruminations on Dixie Drive It Yourself v. American Beverage Company, 20 La.L.Rev. 363 (1970); Robertson, Reason v. Rule in Louisiana Tort Law; Dialogues on Hill v. Lundin & Associates, Inc., 34 La.L.Rev. (1973); and Problems in the Application of Duty-Risk Analysis to Jury Trial in Louisiana, 39 La.L.Rev. 1079 (1979). We will refer to this analysis in this matter.

The first step is to determine whether the Department of Highways’ omission of failing to place regulatory or directional signs was a cause in fact of the accident. (Under this analysis we determine the cause element first before reaching the conclusion that a defendant is negligent or not). For an omission to be a cause in fact of the accident it must be a substantial factor in bringing about the harm complained of. Dixie, supra; Laird, supra; Hebert, supra; and Becnel, supra.

The trial court’s findings are helpful since this is a factual question. It found that Mrs. Torres did stop at the intersection even though there was no stop sign and that she knew that traffic on her right would have the right of way. This was the testimony of Mrs. Torres, and therefore this finding is adequately supported. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The stopping by Mrs. Torres at this intersection and her looking both ways was what would have been required if a stop sign or yield sign had been in place. Confusion as to what ramp to take might have been a factor for the stopping. But since she did stop, looked both ways and failed to see Vickie descending on the ramp, Mrs. Torres’ actions were the cause of the accident. The Department of Highways’ omission did not result in bringing about this accident. Lawes v. State Farm Mut. Auto. Ins. Co., 387 So.2d 1200 (La.App. 1st Cir. 1980). We need not proceed in this analysis in regards to the Department of Highways since its actions did not cause the accident. Becnel, supra. (Compare Anding v. Southwestern Ins. Co., 358 So.2d 690 (La.App. 3rd Cir. 1978) where the Court found the omissions of the Highway Department to be a cause in fact of the accident and went on to determine if the Department of Highways had a duty and whether the duty was breached).

As to Associated’s next assignment of error of failing to find Vickie Pierrotti negligent, appellant refers to the doctrine of last clear chance and preemption. We believe the doctrine of preemption needs to be reviewed in this case.

Highway 182 is a four lane highway with two lanes approaching the on ramp to Highway 90. Highway 90 is a two lane exit with vehicles traveling toward Berwick. Vickie was in the right lane of the two lane ramp while Mrs. Torres was in the left center lane on Highway 182. After stopping at the intersection, Mrs. Torres proceeded across the intersection and was struck before completing her maneuver.

The right front of Vickie’s car collided with the right rear of the Torres vehicle. A picture of the Torres vehicle showed only that the extreme right rear was damaged along with the right rear taillight. The damage would be considered extremely light.

The investigating officer testified that when he arrived on the scene, the Torres vehicle was sticking out into the intersection a foot áñd a half to two feet. Vickie stated that the front wheels of the Torres vehicle were through the intersection when the collision occurred.

The testimony of Arthur Dwiggins, Mrs. Torres’ son who was sitting in the back seat, is that Mrs. Torres had cleared the intersection when she was struck. He testified to a photo that depicted skid marks supposedly of the vehicle driven by Vickie which would have indicated that Vickie was on the shoulder of the road when the collision occurred.

The questionability of the photo comes to light when it is revealed that the picture was taken later in the afternoon the day of the accident. The investigating officer testified that he could not determine at the time of his investigation the skid marks of any car because the intersection was full of skid marks. We believe the trial court’s finding that Mrs. Torres’ vehicle was struck right before she cleared the intersection is correct.

We now must use this finding to determine if the doctrine of preemption is applicable. This doctrine emerges from the statute covering vehicles entering an uncontrolled intersection. Louisiana Revised Statutes 32:121(A) provides:

“A. When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to the vehicle on the right.”

In this instance, Mrs. Torres should have yielded to Vickie as she exited the off ramp from Mrs. Torres’ right. Although the statute has placed a duty on Mrs. Torres, the Courts have also placed a nonstatutory duty on the other driver, with the so-called directional right of way.

In Zemo v. Louviere, 349 So.2d 420 (La. App. 4th Cir. 1977), the Court stated:

“Our courts have held the statutory provision quoted above (or a similar city ordinance) neither converts one of two streets of equal dignity into a superior one with an unqualified right of way, nor provides mechanical rules for determining liability after an accident merely because of the direction in which the vehi-cíes happened to be traveling at the time of the collision. A greater degree of care is imposed upon a driver with only a directional right of way than one with an unqualified right of way. Every driver who approaches an uncontrolled intersection with a street of equal dignity has some degree of duty, depending upon the circumstances, to proceed cautiously and determine before entering the intersection whether he can safely cross. A determination of fault in such a collision is made by examining the conduct of the motorists under all the circumstances and facts of each case, including consideration of the directional right of way.2” (Footnote omitted). Zemo supra, pp. 422 & 423. •

Just because Mrs. Torres had entered the intersection before Vickie did, does not relieve Mrs. Torres of her liability under the doctrine of preemption. As was stated by the court in Abshire v. Southern Farm Bureau Cas. Ins., 346 So.2d 1354 (La.App. 3rd Cir. 1977):

“Before a motorist can successfully rely on the doctrine of preemption, he must show that he entered the intersection at a proper speed and sufficiently in advance of the car approaching from another direction to permit him to cross without requiring any emergency stop by the other vehicle. Entry into the intersection at the same time, or just a fraction of a second ahead of the other vehicle, does not constitute a preemption of the crossing. * * * ” Abshire, supra, p. 1358. See also Funderburk v. Temple, 268 So.2d 689 (La.App. 1st Cir. 1972).

The facts of this case show that Mrs. Torres did not have sufficient time to cross the intersection. The only question left is whether Vickie violated her duty to proceed cautiously. We are to examine facts and circumstances to determine if there was any fault on Vickie’s part.

The trial court found Vickie free of any negligence and now we examine the record to see if it supports such a finding. Arcen-eaux, supra. Vickie testified that as she proceeded down the ramp at a speed of 30-35, she saw Mrs. Torres stopping at the intersection. She blew her horn as a warning and had her foot on the brake. She then glanced to her right to check on a truck coming off the ramp from the bridge. When she looked back to her left, Mrs. Torres had entered the intersection. Vickie applied her brakes but could not avoid the collision. The appellant takes issue with the fact that she did not veer to her left. As Vickie explained it, there was a vehicle on the left side behind her. Although this was not corroborated by any other witness, it was not rebutted by the plaintiffs and the trial court must have believed Vickie’s statement. We do not find the actions of Vickie Pierrotti to be below the standard imposed upon her, and we agree with the finding of the trial court that she was free of any negligence.

Since we have exonerated both the Department of Highways and Vickie Pierrotti of any liability, the judgment of the trial court against Associated Indemnity as the uninsured motorist carrier for the vehicle is affirmed.

The Pierrottis’ last contention is that the award of $25,000.00 was deficient.

Vickie Pierrotti struck her right knee on the dashboard as a result of the collision. X-rays were taken several days after the accident and revealed a non-displaced fracture of the patella. She underwent four arthograms and two surgical procedures.

After the second surgery, plaintiff was relieved of 95% of the pain and had regained full motion of the knee except a five degree extensor lag. Overall, the plaintiff would have a 20% disability of the knee with no foreseeable complications. She has full range of motion with minimal discomfort and can return to work as a clerk, waitress or a housewife.

Much discretion is afforded trial courts in awarding damages. La.C.C. art. 1934 and Reck v. Stevens, 373 So.2d 498 (La.1979). We find the award to be within the very great discretion allowed the trial judge and affirm the award of $25,000.00 to Vickie Pierrotti as general damages.

For the foregoing reasons, the judgment of the trial court is affirmed at Associated’s costs.

AFFIRMED.

This suit has been consolidated with suit # 14,150. The factual setting of this suit and the legal opinion of this court are set forth in a separate opinion rendered this day.

Jose Fuentes, Jr. and Ophelia Fuentes filed this suit to recover the damages incurred by. them as a result of an automobile accident on May 19, 1977. Mrs. Fuentes was riding as a passenger in a vehicle driven by Manuella N. Torres (Torres). They named as defendants, James Donald Pier-rotti, Vickie Rulf Pierrotti (Vickie), the State of Louisiana, through the Department of Transportation and Development (Department of Highways), and Associated Indemnity Corporation (erroneously named in the original petition as Fireman’s Fund).

The Pierrottis and Associated answered the petition claiming they were free of negligence and that the negligence of Torres and the Department of Highways caused the accident. The defendants also allege that any negligence on the part of Torres should be imputed to Ophelia Fuentes since they were on a joint mission. Finally, they filed a third party demand against Torres and the Department of Highways.

Torres answered the third party demand of the Pierrottis and Associated alleging that she had preempted the intersection and that Vickie had the last clear chance to avoid the accident. She also makes a claim against the Department of Highways.

The trial court dismissed with prejudice the Fuentes’ suit against all of the defendants. They appeal that decision.

The Fuentes’ first two specifications of error deal with the negligence of the State and the negligence of Vickie Pierrotti. Finding both of these parties free of negligence, for the reasons assigned in suit # 14,150 rendered this day, we need not consider the specification relating to damages. Since the only negligent party in this collision was Mrs. Torres, whom plaintiffs did not sue, plaintiffs are without recourse from any party sued.

The judgment of the trial court dismissing plaintiffs’ suit is affirmed at their costs.

AFFIRMED.