text:
    Dean P. ALLISON and Arthur S. Bernstein v. Louis William McFAUL.
    No. 12446.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 5, 1981.
    Stewart J. Kepper, Jr., Kepper, Moulin & Kepper, New Orleans, for defendant-appellant.
    John H. Hammel, III, New Orleans, for plaintiffs-appellees.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This suit is by lessor against lessee for unpaid rent. On October 31, 1979, the parties confected a written lease on an apartment for a seven month term ending May 31, 1980. Defendant-lessee vacated the premises at the beginning of April leaving the rent unpaid for the final two months. From a judgment in favor of plain tiff-lessor the defendant has appealed. The issue is whether parol evidence is admissible and sufficient to prove oral amendments subsequent to the written lease which shortened its term or terminated the lease two months early.

The evidence at the trial consisted of the testimony of plaintiff-lessor Dean Allison, defendant-lessee Louis McFaul and plaintiff’s employee Nellie Payne. Summary of that testimony follows:

Dean P. Allison: When he purchased the property on October 31 McFaul was already occupying the premises as a tenant of the prior owner. On the day of his acquisition he was contacted by McFaul who had heard about the purchase and was anxious to negotiate a satisfactory monthly rent and to limit his occupancy to seven months from that date. Allison agreed to accommodate McFaul in this connection and drew the written lease accordingly. McFaul would not sign the lease at that time but insisted on taking it to his lawyer but returned with the signed lease and the first month’s rent either that day or the following day. He has about 35 employees who have dealings with his tenants but whose authority is limited to apartments whose rent is less than $300. Asked whether he had any other contacts with McFaul outside of the ones discussed, Allison said that “he could have called me and I could have spoken to him on other occasions. I believe I said I remembered speaking to him more than once and I remember seeing him more than once, but I can’t say exactly what our conversation as to the exact statement.” Asked if he had any conversation with McFaul about his moving out before May, 1980, Allison said: “No. If anything, he asked me, which is company policy and I said if you want to move out sooner than May, what I would have told him would be the only way you could move out is if we find a tenant that would sublease your apartment, agree to your terms, and pro rate the rental. You find the tenant and pay for the cost of advertising and that’s it.” Notwithstanding this testimony Allison stated that he never spoke to McFaul again after the lease was signed, never had any notice that he was going to move out and found out for the first time when he brought the keys into the office in April.

Louis McFaul: He began occupying this apartment in May, 1978, and when he learned of the sale of the building he contacted Allison to determine his plans. Although he was initially told that the rent would be raised from the $280 he had been paying to $450 per month, Allison agreed to a lower rent at the beginning with a sliding scale up to $400 per month for April and May and with a term of seven months. The lease was signed on this basis, but after this was done Allison told McFaul that if he wanted to move because of the higher rent before the end of the term he should simply advise the office, pay for the ad for a new tenant and leave. Allison seemed enthusiastic about this arrangement because if McFaul moved this would enable Allison to get more rent. In February McFaul called Nell Payne at Allison’s office to advise that he would be leaving the premises at the end of March. At the end of February when he paid his rent he handed a written notice to Nell Payne saying he intended to vacate the premises at the end of March. As time went on McFaul became concerned because there was never a phone call from anyone to see the apartment and he saw no ad in the paper or a “for rent” sign outside of the premises, so he phoned Payne to discuss it. He advised her of the agreement he had with Allison about leaving early with the understanding that he would pay for the newspaper ad and, “She said fine.” When he brought the keys into the office and gave them to Payne on April 3 she said that Allison said don’t worry about paying for the ad. Several days later he heard from Payne that she was closing out the files on the property and she asked what his new address was. “And the next thing I heard I’ve got a lawsuit.” He was told that Payne was the office manager for Allison.

Nellie Payne: She is Allison’s personal secretary and saw McFaul once when he was talking with Allison and the other time when he turned in his key. When asked whether she spoke to McFaul on the telephone she answered “He called and said he was moving and I said all right and then he said he would turn in his key on, I believe, April 3, you know, and I said okay.” After McFaul vacated the premises they were advertised for two months before being rented to a new tenant in June for $450 per month. She did not recall the note he attached to the March check confirming the telephone conversation in which McFaul stated he was going to move out at the end of March.

On motion of defendant for written reasons for judgment, the trial judge (19 days after trial) gave the following reasons:

“As a general rule, parol evidence is inadmissible to vary, modify, explain or contradict a written agreement. The terms of the written agreement of lease sued on herein are clear and explicit, and contain no ambiguous provisions.
Over the timely objection by Plaintiff, parol evidence was permitted to be introduced by Defendant concerning an oral agreement not included in the written agreement of lease, but Defendant has failed to sustain such defense, and consequently there must be judgment in favor of Plaintiffs as prayed.”

As we understand these reasons the trial judge found that the lease was unambiguous so that the parol evidence offered was not admissible in that connection. Furthermore, he found that the parol evidence was insufficient to establish some agreement which the parties did not include in the written agreement. On appeal plaintiff contends that all of the parol evidence was inadmissible because it pertained to conversations which preceded the confection of the written lease. As a matter of law this position is correct under LSA C.C. Art. 2276, Piliawsky v. Colar, 112 So.2d 730 (La.App. Orl. 1959). This principle, however, does not exclude conversations which took place after the confection of the lease and had the effect of orally amending the lease, Christ v. Christ, 251 So.2d 197 (La.App. 3rd Cir. 1971). Because the trial judge did not address this issue with respect to the alleged conversation between Allison and McFaul immediately following the signing of the lease or the transaction between McFaul and Payne in February and March, the manifest error doctrine has no application on this appeal.

McFaul’s testimony of what happened following the signing of the lease is not contradicted in essence by Allison because when asked about any conversations with McFaul he answered that he could not remember. More importantly, however, McFaul’s testimony that he informed Allison’s manager or secretary (who surely had apparent authority to bind Allison) of his intentions and got no objection, was uncon-tradicted by Payne.

We are satisfied that the trial judge did not address the issue of oral modification of the written lease or termination on Allison’s part by Payne, and we find that as a fact the lease was terminated by agreement between the parties as of April 1, 1980.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of defendant, Louis W. McFaul, and against plaintiffs, Dean P. Allison and Arthur S. Bernstein, dismissing their suit at their cost, including the cost of this appeal.

REVERSED.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Rebecca Lynn HARRISON v. Francis Daniel HARRISON.
    No. 12675.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 5, 1981.
    Kenny M. Charbonnet, Charbonnet & Charbonnet, New Orleans, for defendant-appellant.
    Floyd J. Reed, Reed & Reed, New Orleans, for plaintiff-appellee.

      Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

The issue in this case is whether the trial court erred in awarding alimony to a 22-year old handicapped person against her father in the amount of $300 per month considering the record before us and the circumstances of the case.

In March, 1980, plaintiff first sought alimony from her father and was awarded a judgment of $300 per month on April 17, 1980. In that judgment the trial court directed the parties to return to court on October 15, 1980, to review the status at that time. No appeal was taken from that judgment. On October 9 defendant filed a rule to reduce and/or terminate this alimony alleging that his daughter was capable of gainful employment. On November 12 the trial court rendered the judgment now on appeal, dismissing defendant’s rule to reduce and/or terminate the alimony.

Plaintiff’s disability consists of a deformed foot on which she cannot stand for a long period of time, amputation of the first segment of her right index finger, dyslexia, and an ileostomy which resulted from the removal of her bladder and affords access to an apparatus on the outside of her body to collect her urine. She testified that she worked as a Kelly Girl occasionally and held a temporary job twice a week as a clerk at a credit union and another temporary job for two and a half months at the Veterans Hospital. She had difficulty with both jobs because of problems related to the ileostomy such as leakage from the apparatus. She is unable to type, take shorthand or use dictation machines. Attempts to find regular employment have been unsuccessful. She has enrolled at University of New Orleans in Communications as advised by counselors at that University. Asked whether a doctor ever told her she was incapable of gainful employment, she stated she had arrived at that conclusion herself because of her physical condition and she was trying to get an education and become qualified for a position whose hours and demands might be less restrictive and more flexible. The father offered no evidence as to his financial condition.

At the conclusion of the testimony the trial judge made the following statement:

“The court finds that it will not terminate nor reduce the child support. I am going to rely not only on the moral obligations of parents to support their children but from the testimony I have ascertained today the girl is in the same stage she was the last time she was in court except she has not, in an effort, at U.N.O., tried to get that thing which would give her enough, I guess, independence so she wouldn’t need this money, whatever sum it may be, from either her mother or her father.”

In this court the father relies on Demarie v. Demarie, 295 So.2d 229 (La.App. 3rd Cir. 1974) and Dubroc v. Dubroc, 284 So.2d 869 (La.App. 4th Cir. 1973). However, these cases simply hold that a child beyond the age of minority who is not disabled from working is not entitled to alimony merely to obtain an education rather than work — precisely what LSA-C.C. Art. 230 says. However, the child in this case is not seeking or obtaining alimony simply for education. The $372 tuition she pays for a semester is not the basis for the trial court’s award of $300 per month. This plaintiff has severe problems which prevent her from gainful employment on a regular basis. She hopes she will overcome that problem by education and would thereafter no longer be in need.

The conclusion that plaintiff is in such physical condition as to support her claim for alimony as a matter of law is essentially a factual conclusion by the trial judge which should not be disturbed in the absence of manifest error. Finding none, we affirm the judgment.

AFFIRMED.

      . Inability to read more than a few lines with understanding. Steadmans Medical Dictionary, 3rd unabridged Lawyers Edition.

      . The father does not dispute the amount of the award but disputes liability for any amount. He does not ask for a reduction by $62 per month which is the amount of her tuition.


author: DOMENGEAUX, Judge.

text:
    ROY O. MARTIN LUMBER COMPANY, INC., Roy O. Martin, Jr., and Norman K. Martin, Plaintiffs-Appellants, v. RAPIDES PARISH POLICE JURY, Defendant-Appellee.
    No. 8376.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III, Alexandria, for plaintiffs-appellants.
    Gus Voltz, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   DOMENGEAUX, Judge.

Roy 0. Martin, Jr. and Norman K. Martin claim ownership to 8.3 acres of land in Rapides Parish, which the Rapides Parish Police Jury (Police Jury), the defendant herein, contends it acquired from Roy 0. Martin Lumber Company, Inc. as part of Tract II in a cash sale executed June 5, 1968, and recorded June 6, 1968, in the office of the Clerk of Court of Rapides Parish. The Martins and their predecessor in title, Roy 0. Martin Lumber Company, Inc., petitioned the district court to render a declaratory judgment establishing the limits of the property transferred by Roy 0. Martin Lumber Company, Inc. to the Rap-ides Parish Police Jury on June 5, 1968.

The June 5, 1968, deed identified Tract II in the following manner:

“TRACT # II: ALL OF THE FOLLOWING DESCRIBED PROPERTY WHICH LIES TO THE SOUTH OF THE RIGHT-OF-WAY LIMITS FOR DAM AND SPILLWAY AND THAT PROPERTY WHICH LIES BELOW THE 99.6 FEET MEAN SEA LEVEL CONTOUR LINE AND BEING PART OF THE FOLLOWING DESCRIBED PROPERTY:
[There follows a metes and bounds description of the entire tract owned by Roy O. Martin Lumber Company, Inc.] The property herein described being shown on that plat of survey dated October 15, 1967 by Louis J. Daigre, which plat is attached hereto and made a part hereof for greater certainty of description ...”

The above mentioned plat by Louis J. Daigre is reproduced at the end of this opinion. Roy O. Martin approved the plat by affixing his signature thereto beneath the designation “Tract # II”.

On the basis of the above description, the plaintiffs claim the deed transferred only that property to the south of the right-of-way limits for the dam and spillway which lay below the 99.6 feet mean sea level (MSL) contour line.

The Police Jury contends that it acquired all of that property lying south of the right-of-way limits for the dam and spillway except that property which was specifically designated on the plat as being above the 99.6 feet MSL contour line.

The two tracts in dispute are south of the right-of-way of the dam and spillway and are above 99.6 feet mean sea level. In addition, one of the disputed tracts has a western part of the dam constructed on it. However, these tracts were not shown on the plat attached to the act of sale as being above the 99.6 feet MSL contour line, although other areas above 99.6 feet were set out by a dotted contour line on the plat.

The district court ruled that the June 5, 1968, act of sale transferred the disputed tracts of land to the Rapides Parish Police Jury along with the rest of the crosshatched portion of the plat. Although the disputed tracts were not shown on the plat attached to the deed, we have outlined their approximate locations on the plat and have labeled them “A” and “B” as a convenience to the reader.

The trial judge found that there was a discrepancy between the wording of the deed and the markings on the plat, so he applied the well established rule that where there is an error or ambiguity with regard to a description in a deed, an attached map relating to the error or ambiguity will control. Casso v. Ascension Realty Co., 195 La. 1, 196 So. 1 (1940); Prather v. Valien, 327 So.2d 130 (La.App. 3rd Cir. 1976), writ denied 330 So.2d 318 (1976); Angelle v. Prejean, 391 So.2d 511 (La.App. 3rd Cir. 1980). We affirm.

Assuming that the Lumber Company did intend to transfer only that property south of the dam and spillway right-of-way which was below the 99.6 feet MSL contour line, the property comprising Tract II cannot be determined simply by reading the deed. One must still resort to the plat, which was attached to and made a part of the June 5, 1968 cash sale “for greater certainty of description”, to discover which property was above and which was below the 99.6 feet MSL contour line. The only acreage of the Lumber Company’s property which is designated as being above the 99.6 feet MSL contour line is that property in the southwest (lower left) corner of the plat which is outlined on the plat and described in its legend. Since this is the only property shown on the plat to be above the 99.6 feet MSL contour line, it follows that the remainder of the property that is south of the right-of-way limits for the dam and spillway was sold to the Police Jury as part of Tract II. We so hold.

For the above and foregoing reasons the judgment of the district court is affirmed at plaintiffs-appellants’ costs.

AFFIRMED.

      . The tract was to be used, and is presently used in connection with a dam — spillway—reservoir project and was purchased by the Police Jury in lieu of acquisition by expropriation.

      . On October 10, 1974, Roy O. Martin, Jr. acquired from Roy O. Martin Lumber Company, Inc. and 8.3 acre tract of land “located above the 99/6 MSL contour line in Section 84”. On February 12, 1975, Roy O. Martin, Jr. conveyed 2.4 acres of the 8.3 acre tract to Norman K. Martin. This 8.3 acre tract (marked “B” on the attached plat) along with a 1.3 acre tract (marked “A” on the attached plat) sold to Eugene A. Andries, Jr. on June 3, 1973, are claimed by the Police Jury. Andries is not a party to these proceedings.


author: REDMANN, Judge. JULIAN E. BAILES, Judge, Pro Tern., SAMUEL, Judge,

text:
    Diane B. ALONGI et al. v. F.W. WOOLWORTH COMPANY, INC. d/b/a Woolco Store No. 6018.
    No. 11949.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 1981.
    Wayne J. McDougall, Chalmette, for plaintiffs-appellees.
    Law Offices of James J. Morse, Michael F. Grennan, New Orleans, for F.W. Woolworth Co., Inc.
    Law Offices of Adams & Reese, Oscar L. Shoenfelt, III, New Orleans, for Liberty Mutual Ins. Co.
    Terry Christovich Gay, Christovich & Christovich, New Orleans, for Unarco Commercial Products, Inc.

      Before SAMUEL, REDMANN, BOU-TALL and KLEES, JJ., and BAILES, J. Pro Tem.
   REDMANN, Judge.

The trial judge had ample support for the basic factual conclusion that the shopping cart was in an unreasonably dangerous condition. The testimony of disinterested witness Crovetto was that the cart tilted as the 30-pound, three-year-old plaintiff child, standing in its merchandise section, moved toward its side; that the cart returned upright as the child stepped back to the center of the cart, and turned over when the child again stepped to its side. Defendant’s employee Duckworth testified, “If the basket [the cart] was hit by a car and bent then a small amount of pressure might make it turn over.”

The legal basis supporting the trial judge’s conclusion of liability is the duty on the part of any self-service store that elects to supply carts with seats for small children to supply carts that are reasonably safe for the children in the expected use of the carts. The expected use for children makes foreseeable that, in the absence of seatbelts or other restraint, a child whose guardian is distracted momentarily by shopping pursuits might move from the seat into the merchandise section of the cart, and therefore a reasonably safe cart must not turn over from the simple presence or nonviolent movement of a small child in its merchandise section. A cart that may have been reasonably safe when manufactured may become unreasonably dangerous after being so damaged, as by an automobile, that it turns over from “a small amount of pressure,” so small that it is exerted by a small child standing or moving nonviolently in the merchandise section of the cart. The self-service store’s duty to supply carts that are reasonably safe must therefore oblige the store both to procure carts that are properly designed and manufactured and to maintain the carts in reasonably safe condition thereafter (or not offer unstable carts to customers for use).

Crovetto’s testimony reasonably supports the trial judge’s apparent inference that the cart in question was not reasonably safe, because it did turn over without the child’s moving violently or even leaning over the side. For purposes of deciding this child’s case against the store alone it is not necessary to decide whether the unsafeness arose from faulty manufacture or faulty maintenance. We thus reason that Woolworth breached its duty to provide reasonably safe carts and that that breach caused plaintiffs’ damage.

But it is the store’s burden to prove faulty manufacture, rather than faulty maintenance, in order to recover on its third-party demand against the manufacturer. Evidently the trial judge’s conclusion was that the unsafeness of this cart was not shown to be a manufacturing defect because he did not give judgment over against the manufacturer. From the testimony of Duckworth that “a small amount of pressure” might overturn a damaged cart (more easily than an undamaged one), and under the circumstance that defendant Woolworth had the cart involved in its possession but did not preserve it apart from the other carts, and notwithstanding Duck-worth’s testimony that he inspected the cart immediately after the accident and found it in good condition, we cannot say the trial judge erred in concluding that Woolworth did not prove that the plaintiff child’s injury was caused by a manufacturing defect. It is at least equally permissible to infer that the cart fell over because of damage, such as bending by an automobile, that a proper inspection would have revealed.

Woolworth’s third-party demand against the child’s mother’s insurer was also properly rejected. It is not negligence, insofar as a self-service store may assert, for a shopper to succumb to the distraction of the store’s intentionally enticing displays of alluring merchandise. The store may not, while seeking for itself the benefit of impulse-buying generated by its displays, argue that the shopper has a duty not to be distracted by those displays. That argument is repeatedly rejected by the slip-and-fall cases such as Gonzales v. Winn-Dixie La. Inc., 326 So.2d 486 (La.1976).

Affirmed.

BAILES, J. Pro Tem., dissenting.

SAMUEL, J., dissenting for reasons assigned by BAILES, J. Pro Tem.

JULIAN E. BAILES, Judge, Pro Tern.,

dissenting.

The defendant, F.W. Wool worth Co., Inc., and its insurer, Travelers Insurance Company, appealed the trial court judgment awarding the plaintiff a total of $12,701.00 in damages for an injury of the minor child, Darrel Alongi, sustained when he fell from a cart in which he was standing while his mother was shopping in defendant Woolworth store.

There were third party pleadings and an array of third party plaintiffs and defendants not necessary to name at this time.

In written reasons for judgment the trial court, inter alia, stated:

“The only eyewitness to the accident, Mr. Louis Crovetto, confirms the mother’s testimony, and added that none of the three adults standing next to the shopping cart saw it tip over. Mr. Crovetto saw the entire accident as he was running toward a large window of the store and was unable to reach the window and knock on it until after the child fell. “The Court was impressed with the testimony of Mr. Crovetto who retold that the accident occurred in about 5 seconds, when the small child stepped toward the side of the basket, the basket then tipped over without the child touching the side of the basket or leaning out of the cart. There is no testimony as to how the child moved from the seat in the rear of the cart to the large portion of the basket.”

The trial court, by applying the rationale of Kavlich v. Kramer, 315 So.2d 282 (La.) and Gonzales v. Winn-Dixie, La., Inc., 326 So.2d 486, said:

“* * * it is the opinion of the court that a store keeper owes an affirmative duty to those who use his premises, as well as products such as shopping carts made available for the use of his customers, to exercise reasonable care to keep the premises, as well as the products, in a safe condition.”

The mother of the injured child testified that she placed him in the seat at the rear of the basket and that he was in that seat when last observed by her prior to his fall from the upset shopping cart.

Also, it was shown that Mrs. Alongi selected the cart upon entering the store and she testified:

“Q. Alright. At this time you were in the store prior to the accident happening I assume you rolled the basket around during that time, at least somewhat?
“A. Yes.
“Q. Did you notice any problems with the shopping cart?
“A. No, it was rolling fine.
“Q. You didn’t notice any problem with the wheels?
“A. No.
“Q. Did it seem to you as if it wobbled or wiggled?
“A. It seemed to be safe.”

The trial court, under Morais v. Schwegmann, 290 So.2d 357 (La.App. 4th Cir., 1974) [of which, incidentally, this dissenter was author and which case was repudiated by a divided (5 to 4) court in Gonzales v. Winn-Dixie Louisiana, Inc., 309 So.2d 697 (La. App. 4th Cir., 1975); writ granted, 1975, whose author was Judge Schott, although the Supreme Court reversed this court’s ruling in Gonzales v. Winn-Dixie, Louisiana, Inc., 326 So.2d 486)] found that this court “* * * held that when the customer could establish her freedom from causation, the burden would shift to the store keeper to rebut the presumption of fault for the reason that the store keeper is most cognizant of facts necessary to decide the issue.

“The court believes that the plaintiffs have met this burden. The evidence established that the injury occurred in the defendant’s store in St. Bernard, while using a shopping cart provided by the defendant, and which remained in control of the defendant following the accident.

“Defendant contends that Mrs. Alongi was responsible for the accident as she had left her child unattended. The court was not impressed by those witnesses provided by defendant, as the only eyewitness to the incident, Mr. Crovetto, supported the mother’s testimony. The court therefore concluded that the plaintiffs established their freedom from causation and shifted the burden of proof to the defendant.”

(The trial court did not discuss the defendant’s witnesses’ testimony contending that witness Crovetto was the only eyewitness.)

“* * * It was therefore the conclusion of the court that the defendant failed to exculpate himself from the presumption of fault and to establish freedom from fault, and determined to award judgment to the plaintiffs. * * *”

The majority holds:

“The legal basis supporting the trial judge’s conclusion of liability is the duty on the part of any self-service store that elects to supply carts with seats for small children to supply carts that are reasonably safe for the children in the expected use of the carts. * * *”

I find nothing untoward in the above statement but I cannot agree with the following assessment of witness Crovetto’s testimony:

“Our conclusion from Crovetto’s testimony is that the cart in question was not reasonably safe, because it did turn over without the child’s moving violently or even leaning over the side (sic).”

I find manifest error on the part of the trial judge. The judgment of the trial judge is manifestly erroneous because it is clearly wrong. The assignment of facts is erroneous as well as the conclusions of law.

The trial judge states he is not impressed by the defendant’s defense or its witnesses that the mother had left her child unattended.

The testimony of Mrs. Anna Diaz, a Woolworth clerk who had been so employed for over two years, was either overlooked or ignored by the trial judge.

Mrs. Diaz testified that she had a customer who wanted to purchase a clock that was hanging on a wall. In order to reach the clock she obtained a stepladder and was at the time about four feet off the floor when her attention was attracted to a man outside the store knocking on the door. When she looked toward the man and the door she saw the subject child standing in the buggy trying to reach some merchandise on the shelf.

Her eyewitness testimony is the following:

“Q. Did you witness an accident while you were on duty on March 11, 1975? “A. Yes.
“Q. Gould you tell us, please, what happened?
“A. Well, that night I was working in the area of hardware and I got a customer and she wanted a clock that was in the wall and I had to get a ladder and went to reach the clock and when I tried to I hear the knock outside the door of the garden center fifty or sixty foot away. When I hear the knock I look and I see a man knock on the door. When I see him knock I look and see a child in a buggy, one of the buggies of Woolco.
“Q. Like this (indicating)?
“A. Yes. But, they had — I couldn’t see the boy, just the head. The boy was by himself and nobody around and he was trying to get some merchandise on the shelf. When I went down to try to go there — I gave the clock to the lady and— when I got there the only thing I see was the child on the floor and one lady with, I imagine, the mother screaming. And, the child had a sweater and I took the sweater and just grabbed the child and rushed to the front.”

Specific reference is also made to pages 83, 84, 86, 96, 97 and 98 for additional testimony of this witness.

Re-cross examination by Mr. McDougall, page 98:

“Q. I am a little confused. You said before that you could not see the basket and then you just testified the child was leaning out over the side. If you couldn’t see the basket then how do you know?
“A. He was leaning because he was trying to reach merchandise on the wall. I see the child waist up and then leaning, trying to reach.
“Q. There was merchandise in front of the child?
“A. Yes, merchandise in there.”

I find the testimony of witness Crovetto and Mrs. Diaz completely reconcilable. It appears to me likely that Mr. Crovetto is confused as to where he was when the child fell. He testified that the child fell before he got to the window whereas Mrs. Diaz states there was a man knocking at the door; that is when she was attracted to look in the direction of the child, saw him reaching for some merchandise, she handed the clock to her customer and before she could get to the child, he had fallen.

I find the case should be reversed for the reason that the presumption of fault applied by the trial judge is taken out of context of the case of Morais v. Schwegmann, supra (even if Morais v. Schwegmann had not been repudiated heretofore in Gonzales v. Winn-Dixie Louisiana, Inc., supra.)

In the instant case the plaintiffs have not satisfied the burden of proof. There is no evidence that the cart was damaged, bent or deformed. There is positive proof that the child was leaning out of the basket (lack of proper supervision by his mother) trying to reach merchandise on the wall.

I respectfully dissent.

SAMUEL, Judge,

dissenting.

For the reasons assigned in the dissent of Bailes, J., I respectfully dissent.


text:
    Frank LOPEZ v. SEARS, ROEBUCK & COMPANY, et al.
    No. 12692.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 1981.
    Writ Denied Dec. 14, 1981.

      W. H. Carlton, Law Office of Bendana & Carlton, New Orleans, for plaintiff-appellant.
    H. F. Foster, III, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for defendant-appellee.
    Joseph R. McMahon, Jr., Edward L. Le-vert, Jr., Young, McMahon & Levert, New Orleans, for defendant Guy Lowe, Jr.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This appeal is from the granting of a motion for summary judgment dismissing plaintiff’s case against Guy Lowe, Jr. and his insurer, Affiliated F & M Insurance Company. Other defendants are not involved in this appeal. The issue is whether the owner of a shopping center is liable to plaintiff under LSA-C.C. Art. 2322 for an injury sustained by plaintiff while he was using an allegedly defective electric saw owned by his employer and brought on the premises in connection with construction work being performed by plaintiff and his employer.

Art. 2322 makes the owner strictly liable for damage resulting from defects in the building, including appurtenances to the building. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978), Cothern v. LaRocca, 255 La. 673, 232 So.2d 473 (1970), Boudoin v. Sehwegmann Bros. Giant Supermarket, 371 So.2d 370 (La.App. 4th Cir. 1979), Fontenot v. Sarver, 183 So.2d 75 (La.App. 3rd Cir. 1966).

Since the saw was not an appurtenance to appellee’s building these cases and the article are not applicable and the judgment appealed from is affirmed.

AFFIRMED.


author: PONDER, Judge.

text:
    Brigida HALL v. BOARD OF SUPERVISORS SOUTHERN UNIVERSITY, etc., and Niagara Fire & Marine Ins. Co.
    No. 14030.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Writ Denied Dec. 14, 1981.

      Steve LeBlanc, Baton Rouge, for plaintiff-appellant, Brígida Hall.
    John B. Noland, Baton Rouge, for defendant-appellee, Board of Supervisors, Southern University & Agricultural & Me-chanican College and Niagara Fire Ins. Co.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiff appeals the dismissal of her suit against defendants for damages suffered in a shooting incident on the Southern University campus.

The sole issue is defendants’ liability.

We affirm.

Plaintiff, a student at Southern University, was shot by a non-student in the lobby of her dormitory, an area commonly used as a meeting place for dormitory residents and their friends. Plaintiff’s assailant, who was unknown to her, had been sitting quietly in the lobby for some twenty to thirty minutes, suddenly, without warning or provocation, pulled a revolver and shot plaintiff as she awaited an elevator. The trial court found that Southern University had breached no duty to her and dismissed her suit.

Plaintiff claims defendant Southern University breached its duty to protect her in three respects: by requiring her to live on campus without warning her of the dangers to which she would be subjected; by failing to maintain an adequate police force and to establish a security monitoring post, and by failing to bar her assailant from the campus.

Southern University is a community of 14,000 individuals. There had been some isolated incidents of violence on campus pri- or to plaintiff’s enrollment. However, these isolated criminal activities were not sufficient to require Southern to warn all incoming dormitory residents of probable danger from criminal assault. There is no proof that living on campus increased the hazard above the ordinary. Pennington v. Church’s Fried Chicken, Inc., 393 So.2d 360 (1st Cir. 1980).

We find the evidence in the record regarding the alleged inadequacy of Southern’s campus security to be irrelevant. For plaintiff to establish a cause of action against defendants, there must be a causal relationship between Southern’s inadequacies and the resulting injury to plaintiff. The failure to implement a given level of security protection is not a proximate cause of a particular act where the event might have occurred in spite of utmost security precautions. Gant v. Flint-Goodridge Hospital of Diliard University, 359 So.2d 279 (4th Cir. 1978); Kane v. Braquet, 368 So.2d 1176 (3rd Cir. 1979). Even the most sophisticated security forces are powerless to prevent a spontaneous, sudden and unprovoked act of violence. A security monitoring post would not have prevented this assault, since plaintiff’s assailant, though a non-student, entered the campus in a vehicle bearing a valid university sticker.

There is no evidence in the record Southern was aware of the assailant’s dangerous propensities. His only previous encounter with campus police concerned a refusal to pour out a can of beer. We do not find this isolated incident imposed a duty on Southern to bar him from campus.

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

AFFIRMED.


author: EDWARDS, Judge.

text:
    CONWED CORPORATION v. Curtis BERGERON, d/b/a Central Interiors, Third Party Plaintiff-Appellee (Mickey Construction Company, Inc., Third Party Defendant-Appellant).
    No. 14089.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    H. Minor Pipes, Jr., of Pipes & Pipes, Houma, for plaintiff-appellee Conwed Corp.
    Larry P. Boudreaux, Thibodaux and Anthony C. D’Antonio, New Orleans, for third party defendant-appellant Mickey Const. Co.
    Diana M. Sanders, Raceland, for defendant-appellee Curtis Bergeron d/b/a Central Interiors.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Mickey Construction Company was general contractor for the construction of a library and gymnasium, and renovation of an existing school building, for the Terre-bonne Parish School Board. Curtis Berger-on entered into two contracts with Mickey, one for the installation of acoustical ceiling tiles and the other for the installation of floor tiles. Bergeron’s contracts (entered June 24,1976) stipulated that this work was to be completed no later than June 30,1977. Bergeron purchased the materials necessary to perform the contracts from Conwed Corporation, and they were delivered to the construction site.

Bergeron breached his contracts in two respects: 1) he never provided samples of materials as required by the contracts, and 2) he continually failed to supply a sufficient number of personnel to the construction site, causing delays for the other subcontractors. After a number of warnings relative to lack of sufficient manpower and slow progress, Mickey placed Bergeron in default. Mickey invoked a contractual provision which allowed it to confiscate all materials which the subcontractor placed on the work site in order to complete his work. Mickey hired other subcontractors to finish Bergeron’s portion of the project.

This action originally arose as a suit by Conwed Corporation against Bergeron for the price of the materials supplied by Conwed. Bergeron filed a third party demand against Mickey Construction Company to recover the cost of materials which were incorporated, into the buildings.

The trial court rendered judgment for Conwed and against Bergeron in the amount of $10,347.68 plus interest and at-tomey fees. On the third party demand, judgment was rendered for Bergeron and against Mickey for the same amount. Mickey’s motion for a new trial (on the grounds of mental, emotional and physical illness of counsel) was granted.

After a new trial of the third party demand, the district court awarded Bergeron $5,899.57. Damages were calculated pursuant to Article VII of the contracts. This provision gave the contractor (Mickey) the right to step in and complete any work which the subcontractor (Bergeron) failed to do. It further provided that the expenses incurred by the contractor in finishing the work were to be deducted from the contract price and the remainder paid to the subcontractor. Bergeron was to receive $35,678.00 for both contracts. He had already been paid $15,425.00, leaving a balance due of $20,253.00. Mickey proved expenses of $14,353.43 in completing Berger-on’s work. Bergeron was entitled to the remainder, $5,899.57.

Mickey’s claim for liquidated delay damages was rejected. Article VI of each contract stipulated damages of $50.00 for each day that the contract was in default after June 30, 1977. The trial judge stated that Mickey had failed to prove the date upon which Bergeron’s portion of the work was ultimately finished. The court held that Mickey’s failure to furnish precise evidence as to the number of days delay caused by Bergeron’s breach precluded an award of liquidated damages.

Mickey has appealed. It contends that the trial court erred in failing to award liquidated damages for the delay caused by Bergeron’s breach of the contracts. Mickey asserts that the evidence establishes that it is entitled to delay damages for at least a thirty day period.

Our review of the record does not support Mickey’s contention. Work progress reports introduced into evidence show that work on the acoustical ceiling tile took place almost every day in July and into early August. These same records indicate that floor tile work was performed in the new gymnasium as late as September. However, these reports contain no indication as to the amount or nature of the work which was performed on these days.

No testimony was adduced by Mickey to pinpoint how long it took to complete Ber-geron’s portion of the job. All of the testimony presented by Mickey which dealt with the work performed after Bergeron’s dismissal was concerned with the expenses incurred by Mickey Construction Company in completing the work. The trial court was correct in its conclusion that Mickey did not carry its burden of proving a specific number of days delay for liquidated damages purposes.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are to be paid by the appellant, Mickey Construction Company.

AFFIRMED.


author: ELLIS, Judge: WATKINS, Judge,

text:
    Henry J. SENAC v. Ronald Davis SANDEFER, et al.
    No. 14204.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Writ Granted Dec. 14, 1981.

      Dennis A. Pennington, Baton Rouge, for plaintiff-appellee Henry L. Senac.
    Richard Creed, Jr., Baton Rouge, for defendant-appellant Louisiana Ins. Guaranty Ass’n.
    Before ELLIS, LOTTINGER, PONDER, COLE and WATKINS, JJ.
   ELLIS, Judge:

Plaintiff, Henry J. Senac, was injured in a vehicular collision while driving a truck for his employer. He collected workmen’s compensation benefits from Employers Commercial Union Insurance Company, his employer’s workmen’s compensation insurer. Plaintiff also filed the instant action against Ronald Davis Sandefer, the offending motorist, and his insurer, Manchester Insurance and Indemnity Company. Due to the insolvency of that insurer, the Louisiana Insurance Guaranty Association (LIGA) assumed its obligations, pursuant to Louisiana Revised Statutes 22:1375, et seq.

The liability of defendants was not contested. However, LIGA sought a reduction of quantum by the amount of workmen’s compensation benefits received by plaintiff, contending that plaintiff would otherwise be awarded a double recovery in violation of Louisiana Revised Statute 22:1386(1). The case was submitted for decision to the trial court, based upon the following joint stipulations:

1. That, but for the legal issue involved herein, there shall be judgment rendered in favor of plaintiff, HENRY J. SENAC, and against the defendants, MANCHESTER INSURANCE & INDEMNITY COMPANY and LOUISIANA INSURANCE GUARANTY ASSOCIATION, in the full sum of FOUR THOUSAND NINE HUNDRED and no/100 ($4,900.00) DOLLARS.
2. That all recovery due the plaintiff shall be for general damages and shall not be construed as recovery for special damages such as lost wages or medical expenses.
3. That plaintiff, HENRY J. SENAC, recovered from Employers Commercial Union Insurance Company, the sum of $4,900.00 in weekly indemnity workmen’s compensation benefits, (not medical expenses).
4. That the parties hereto agree that the legal issue to be decided by this Court is whether the Louisiana Insurance Guaranty Association is entitled, under LSA R.S. 22:1386 to offset the stipulated general damages due plaintiff of $4,900.00 with the $4,900.00 in workmen’s compensation benefits received by the plaintiff from Employers Commercial Union Insurance Company.”

In written reasons for judgment, the trial court stated that the workmen’s compensation benefits received by plaintiff were made in lieu of salary, while the damages sought from defendants were stipulated as general damages and not special damages such as lost wages. Accordingly, relying upon Fontenot v. Hanover Ins. Co., 385 So.2d 238 (La.1980), the trial court found no duplication of recovery and awarded plaintiff full general damages as stipulated. LIGA appealed.

The sole issue on appeal is whether the general damage award should be reduced by the amount of workmen’s compensation benefits received by plaintiff.

Louisiana Revised Statute 22:1386(1) provides:

“Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this Part shall be reduced by the amount of any recovery under such insurance policy.”

LIGA argues that the above statutory provision, when taken literally, would result in no liability on its part, since plaintiff has already received from his workmen’s compensation insurer an amount equal to the stipulated damages in this case. Plaintiff, however, advances two arguments as to why the said statutory provision should not be literally applied.

First, it is argued that under Hickerson v. Protective Nat. Ins. Co., 383 So.2d 377 (La.1980) the provisions of R.S. 22:1386(1) do not apply to workmen’s compensation insurance. In the Hickerson case, it was held that R.S. 22:1386(1) applies only to “ordinary insurance” and that since uninsured motorist insurance is required by public policy, it is not “ordinary insurance.” The court went on to say, however, that since LIGA stood in the shoes of the insolvent insurer, the tortfeasor was not uninsured, and plaintiff’s UM insurance was therefore not brought into play. The argument is advanced in this case that workmen’s compensation insurance is required by public policy, and is not “ordinary insurance,” and that payments thereunder may not be applied to reduce the amount of damages owed by LIGA.

The contention is without merit. Leaving aside the obvious factual differences between the two cases, it is clear from the context of the Insurance Guaranty Association Law R.S. 22:1375 et seq., that workmen’s compensation insurance is covered by the law. If workmen’s compensation insurance is covered by the law, it is subject to all phases thereof, including R.S. 22:1386(1).

Plaintiff’s other argument is that workmen’s compensation benefits are paid in lieu of wages, whereas the stipulated tort recovery in this is solely for pain and suffering, and that there is, therefore, no double recovery.

Under the workmen’s compensation law, either the employer (or his insurer) or the employee may proceed against a third party tortfeasor who is responsible for the employee’s disabling injuries. Each is required to notify the other of such a proceeding. The employer or his insurer may intervene in the employee’s suit to recover amounts paid out in compensation and medical benefits. These amounts are to be paid by preference out of any judgment in favor of the employee. R.S. 23:1101-1103.

The courts have held, however, that the employer or his insurer can not collect medical payments out of the employee’s judgment unless these amounts formed part of the award made to the employee. Fontenot v. Hanover Insurance Company, supra. On the other hand, there has been, until recently, no distinction made between damages for pain and suffering and damages for lost wages when reimbursing the employer or his insurer for compensation benefits paid, and in some cases, the entire award made to the employee has been paid to the employer or his insurer. Monk v. Insurance Company of North America, 324 So.2d 880 (La.App. 3rd Cir. 1976); Vidrine v. Michigan Millers Mutual Insurance Co., 242 So.2d 249 (La.App. 3rd Cir. 1970).

In the recent case of Lagraize v. Bickham, 391 So.2d 1185 (La.App. 4th Cir. 1980), the court held that weekly compensation payments were “wage replacement”, and that the compensation insurer could not recover any part thereof from a judgment awarding damages for pain and suffering. However, in that case, the claimant had continued working despite his disability and had received full wages throughout the period after his injury, so that he suffered no wage loss and the insurer had paid no compensation.

Workmen’s compensation is a type of social legislation, the object of which is “to shift the burden of such economic loss or waste from the employee and his dependents to the industry, in order that it may ultimately be borne by the consumer as a part of the necessary cost of production.” 99 C.J.S. Workmen’s Compensation § 5 (1958). It also relieves society as a whole from some of the burden of supporting those disabled or killed or their dependents, and promotes the general welfare.

From the point of view of the employer and the employee, workmen’s compensation helps both to avoid the uncertainties, costs and time which a litigated claim would entail. As far as the employer is concerned, workmen’s compensation provides a manageable and predictable plan, with a compensation rate not so high as to encourage malingering or feigned injury. Since the great need of the employee is for immediate funds for his emergency, one of the humane purposes of the act would be lost by resort to the courts to enforce a claim. Given this guarantee of a minimum sum to meet medical expenses and support for each and every accident, regardless of fault, it is “perhaps not unfair that (the employee) should fore-go his former claim to be fully remunerated for pain and suffering and those other intangible elements that go into the makeup of a conventional damage suit.” W. Malone and H. Johnson, Workmen’s Compensation Law and Practice, 13 La. Civil Law Treatise § 32 (2nd ed.) 1980.

“Compensation, then, differs from the conventional damage suit in two important respects: Fault on the part of either employer or employee is eliminated; and compensation payable according to a definitely limited schedule is substituted for damages.” Malone and Johnson, supra.

When the employer or insurer intervenes in a suit against a third party, “it is proper to assure that weekly benefits paid are reimbursed in the judgment out of the award to the employee for ‘pain and suffering’, wage loss, or out of ‘general damages’; and that the special expenses (medical expenses and the like) are, to the extent paid by the employer or insurer, awarded directly to it.” W. Malone and H. Johnson, Workmen’s Compensation Law and Practice, 14 La. Civil Law Treatise § 369 (2nd ed.) 1980.

It therefore appears that compensation payments are in lieu of both wage loss and damages for pain and suffering, and that recovery of both compensation payments and damages for pain and suffering is double recovery under the workmen’s compensation law.

Since the purpose of R.S. 22:1386(1) is to prevent such double recovery, we find that the judgment below is erroneous in denying credit to LIGA for compensation payments made to plaintiff.

The judgment appealed from is therefore amended so as to provide that Louisiana Insurance Guaranty Association is to receive a credit for the sum of $4,900.00 paid to plaintiff as workmen’s compensation benefits by Employers Commercial Union Insurance Company, and, as amended, it is affirmed. All costs of this appeal shall be paid by plaintiff.

AMENDED AND AFFIRMED.

COLE, J., dissents.

WATKINS, Judge,

dissenting.

I disagree with the majority because the result is not consistent with the purpose of the Insurance Guaranty Association law. Under this law, as I understand it, LIGA stands in the same shoes as Manchester.

It is clear that the insured party may recover to the full extent of tort liability unless the workmen’s compensation insurer has intervened in the tort suit. Workmen’s Compensation Law and Practice by Malone and Johnson (Vol. 14, § 369, La. Civil Law Treatise). Only in the case of such intervention does the compensation insurer obtain out of damages awardable for pain and suffering of the employe a recovery against the tort feasor or the tort feasor’s insurer. In such case, and only in such case, is “double recovery” prevented on the part of the employee.

If this were a simple suit against the tort feasor or his insurer, this would not be a difficult case. An additional factor is added to this case, however, as the tort feasor’s insurer, Manchester, is insolvent, and recovery is sought against LIGA. According to Hickerson v. Protective Nat. Ins. Co., 883 So.2d 377 (La.1980), LIGA stands in the shoes of the insolvent insurer in most cases. An exception is provided in LSA-R.S. 22:1386(1) under which recovery can be had against LIGA only to the extent recovery is not obtained under another insurance policy-

However, I believe, LSA-R.S. 22:1386(1) clearly refers to a “claim against an insurer” based upon the same cause of action. Here, Senac had two causes of action, one against the tort feasor and his insurer in tort, based on the tort feasor’s fault, and one against the employer and the employer’s workmen’s compensation insurer in workmen’s compensation, where liability arose irrespective of fault on the part of the employer. The two types of insurance afforded by Commercial Union on the one hand and Manchester on the other hand, covered entirely different types of liability, one in workmen’s compensation and the other in tort.

Recovery against one cannot be offset against recovery against the other absent clear and unequivocal statutory mandate. Similarly absent clear statutory mandate, recovery against the compensation carrier cannot be offset against recovery against LIGA. Even if we were to say that LIGA stood in Manchester’s shoes, LIGA would have to pay either Commercial Union or the plaintiff, Senac, and LIGA would have to pay Commercial Union rather than Senac only if Commercial Union had intervened, which Commercial Union did not do.

In summary, as the causes of action against the two insurers, Commercial Union and Manchester, were entirely different, LIGA is not entitled to a reduction for the amount paid plaintiff by Commercial Union under R.S. 22:1386(1).

I respectfully dissent.


author: LEAR, Judge.

text:
    The CITY OF HOUMA v. HOUMA MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD and Daniel Turner.
    No. 14225.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Nov. 23, 1981.

      Robert P. Cuccia, Houma, for plaintiff and appellee.
    Stanwood Duval, Houma, for defendant and appellant Houma Municipal Fire & Police Civil Service Bd.
    Anderson Council, Kenner, for defendant and appellant Daniel Turner.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

This matter is one dealing with a civil service employee who was suspended from duty, without pay, for alleged unauthorized absence from his job as a fireman. Captain Daniel Turner, appellant, was suspended for a period of thirty-one days without pay. This suspension was appealed to the Houma Municipal Fire and Police Civil Service Board (hereinafter referred to as the Board), which modified the suspension to ten days without pay. The City of Houma appealed this modification to the district court, which vacated the modification of the Board and reinstated the thirty-one day suspension. Appellant now appeals from the decision of the district court in favor of appellee, the City of Houma.

Appellant first argues that the notice of appeal by the City of Houma to the district court was defective in that it did not contain the allegation that the Board’s ruling was not made in good faith and that it did not specify any acts or make any allegations from which the conclusion could be drawn that the Board’s ruling was not made in good faith. Appellant contends that, as a consequence of these omissions, the City of Houma’s appeal should have been dismissed at the district court level. He cites Milam v. Municipal Fire and Police Civil Service Board of DeRidder, 253 La. 218, 217 So.2d 377 (1968), as support for this position.

We disagree. The case cited by appellant has been specifically overruled, and it has been established that the notice of appeal is adequate if it contains a reasonably clear and concise statement of the action from which the appeal is taken. Odom v. City of Minden, 281 So.2d 117 (La.1973). See also Touchette v. City of Rayne, Municipal Fire & Police Civil Service Board, 321 So.2d 62 (La.App. 3rd Cir., 1975).

The notice of appeal herein specifically stated that the appeal was taken from the action of the Board in reducing the length of appellant’s suspension. We find that this statement is adequate and that the district court did not err in refusing to dismiss the appeal.

Secondly, appellant argues that the district court erred in finding that the City of Houma acted in good faith for cause when it suspended appellant for thirty-one days and in vacating the Board’s modification of the suspension.

The record reveals that on November 11, 1977, appellant went to his doctor with a complaint of muscle strain in his lower back. He was scheduled for duty with the department on that day. Although appellant obtained a “sick slip” from his physician, he did not in turn deliver it to the Houma Fire Department on the day he was ill, as required by department regulations. The slip was not delivered until November 14, although appellant claimed that he went to the station on November 11 and attempted to deliver the slip while everyone was out on call. The department denied this assertion, contending that someone was always on duty at the station.

Four “sick slips” were actually presented by appellant. The first two, dated November 11, 1977, noted that appellant could return to work on that day. A third, also dated November 11, indicated that he was unable to return to duty for several days. A fourth slip was submitted, dated November 16, which indicated that appellant was able to return to full duty. Appellant contends that the first two “sick slips” were in error and that the third and fourth slips proved that error. He further complains that he was not allowed to present his side of the matter before he was suspended.

According to Fire Department Standard Operating Procedures, Item 39, appellant was supposed to be afforded a departmental hearing within forty-eight hours of a recommendation for suspension before any suspension went into effect. However, when appellant returned to work on November 17, 1977, he was notified that he was suspended from work as of the 15th. There is some evidence in the record that appellant was told that it was too late to apply for a departmental hearing. There is also evidence in the record that appellant waived his right to that hearing. However, we do not believe that it is possible for appellant to have waived his right to a hearing before suspension if he was suspended before he was notified of the proposed action.

On the other hand, we also note that appellant was not entirely without fault in the matter. He did not fully comply with regulations in that he apparently left home on two occasions while he was supposed to remain at home due to his illness.

Appellant filed an appeal from his suspension with the Board, wherein he presented his case and the several “sick slips.” The Board rendered an opinion in which it stated that it “felt that all parties concerned were at some fault.” The Board specifically stated: “This is the reason for the modification.” The suspension of appellant was modified from thirty-one to ten days, without pay.

The district court held that the City had acted in good faith for cause when it suspended appellant. Furthermore, the district court found that the Board itself concluded that the City had acted in good faith for cause. As a consequence of this holding, the district court concluded that the Board lacked authority to modify the suspension. It then vacated the modification by the Board and reinstated the original thirty-one day suspension.

With regard to review of the Board’s findings, we note that, in civil service appeals, the issue before the courts is limited to whether or not the determination of the Board was made in good faith for legal cause. La.R.S. 33:2561; McIntosh v. Monroe Municipal Fire and Police Civil Service Board, 389 So.2d 410 (La.App. 2nd Cir., 1980), writ denied 395 So.2d 1363 (La.1981). Unless the record reveals a lack of sufficient evidence to support the decision of the Board, and unless the Board’s decision is clearly wrong or manifestly erroneous, that decision must be affirmed. McIntosh v. Monroe Municipal Fire and Police Civil Service Board, supra. See also Petrus v. Guin, 378 So.2d 1016, (La.App. 2nd Cir., 1979).

Our review of the record herein convinces us that the Board’s finding that both appellant and appellee were at fault to some extent was supported by sufficient evidence. The finding of the Board is not clearly wrong or manifestly erroneous. Hence, we find that the district court erred in concluding that the City of Houma acted in good faith in suspending appellant for thirty-one days.

We also find that the district court erred in finding that the Board was without authority to modify the decision of the appointing authority. The law applicable to this issue is Louisiana Revised Statute 33:2561, which provides, in pertinent part:

“... After such investigation the board may, if the evidence is conclusive, affirm the action of the appointing authority. If they find that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge, or other disciplinary action by directing a suspension without pay, for a given period . . .. ”

The district court correctly noted that, absent a finding of bad faith, the Board is without authority to modify the ruling of the appointing authority. City of Kenner v. Wool, 320 So.2d 245 (La.App. 4th Cir., 1975). In this respect, we agree with the district court. However, we disagree with that court’s finding that the Board found that the City was acting in good faith. The opinion of the Board specifically found both parties to be at fault to some extent. We can only interpret that statement to mean that the Board found both parties lacked good faith to some extent. Hence, the Board did possess the authority to modify the City’s imposition of a thirty-one day suspension.

For the foregoing reasons, we reverse the decision of the district court and reinstate the decision of the Houma Municipal Fire and Police Civil Service Board, modifying the suspension of appellant from thirty-one to ten days, without pay. The City of Hou-ma, appellee, is to pay costs in the amount of $215.92.

REVERSED.


text:
    Lloyd A. HEBERT v. UNION OIL COMPANY OF CALIFORNIA and Charles J. Bergeron.
    No. 14267.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Nov. 23, 1981.

      Joseph Waitz and Gary Kraus, Houma, for plaintiff and appellee.
    Clarence A. Frost, New Orleans, for third party defendants Automatic Power, Inc. and Employers Ins. of Wausau.
    Richard S. Vale, Metairie, for intervenor Employers Mut. Liability Ins. Co. of Wisconsin.
    Wood Brown, III., New Orleans, for defendant and appellant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiff, Lloyd A. Hebert, filed suit against defendants, Union Oil Company of California and Charles J. Bergeron, in order to recover damages sustained by plaintiff in an accident which occurred on September 6, 1978. Defendants answered denying liability and alleging the “Section 6” defense found in LSA-R.S. 23:1032. After suit was filed, Employers Mutual Liability Insurance Company of Wisconsin intervened in order to recover workmen’s compensation benefits and medical expenses paid to plaintiff by intervenor as the workmen’s compensation insurer.

After a trial on the merits, judgment was rendered in favor of plaintiff and against Union Oil of California in the amount of $462,376.47. Judgment was further rendered in favor of the intervenor and against plaintiff for the amount of the workmen’s compensation benefits and medical expenses paid to him by intervenor. Defendant then appealed. In answers to the appeal, intervenor, while seeking to have the judgment recognizing its intervention affirmed, asserts that the amount awarded by the trial court should be increased to include those amounts that it is continuing to pay to plaintiff, and plaintiff seeks an increase in his damages from that awarded to the amount of $850,000.00.

The trial court, in its reasons for judgment, rendered extensive findings of fact and conclusions of law as to both the issues of liability and the amount of damages. In its lengthy and well-reasoned opinion, which we adopt in part, the trial court held as follows:

“FINDINGS OF MATERIAL FACT

“The Court finds the following material facts based on the preponderance of the evidence adduced at the time of trial:

“1) On September 6, 1978, the plaintiff, Lloyd Hebert, was involved in an accident and sustained injury aboard a fixed platform structure owned by the defendant, Union Oil of California and identified as West Gas Lift Manifold Platform, located near the S/L 2826 well # 38 in the Caillou Island field in inland navigable waters of the State of Louisiana.

“2) Mr. Hebert was there as an employee of Automatic Power, Inc., working under contract to Union Oil of California in order to check and repair, if necessary, an electronic aid to navigation located aboard the structure.

“3) Mr. Hebert reached the platform by the field boat ANN K manned by Robert Whitney, a Union employee.

“4) In order to reach the navigational light, Mr. Hebert, by necessity, had to step on a high pressure gas lift line located by Union immediately adjacent to the aid to navigation.

“5) When Mr. Hebert, in order to climb onto the battery box atop which the aid to navigation was located, stepped on a two inch high pressure gas lift line, the line failed, allowing gas under high pressure to escape and to literally blow Mr. Hebert twenty (20') feet into the air off the structure and into the water.

“6) The high pressure gas line was worn out and unsafe and failed as a consequence of external corrosion and internal corrosion and erosion and of Union’s negligent failure to inspect and maintain its lines.

“7) Lloyd Hebert sustained a severe compound fracture of the left leg and did not lose consciousness at any time. He has undergone eight (8) separate surgical procedures. He has not worked since the accident and cannot return to his previous employment. He cannot return to any employment until late 1980 or early 1981. He has a disability ranging up to 50% of the left extremity as a whole and as a consequence of his inability to return to his former employment, will sustain lost wages in the future. (The particulars of his injuries will be discussed further in the quantum section of these Reasons for Judgment).

“8) Lloyd Hebert in no way caused or contributed to his own accident and injury. Furthermore, he in no way assumed any risks which may have been involved.

“9) As a matter of fact, at the time of the accident, Lloyd Hebert was engaged in maritime employment within the meaning of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. 901, et seq. and was working in a situs covered by the Act.

“10) As a matter of fact, the work Lloyd Hebert was doing at the time of his accident was not work falling within the trade[,] business or occupation of Union Oil of California as those terms of the Louisiana State Workmen’s Compensation Act have been interpreted. The service of aids to navigation on inland water structures had not been done by Union, nor was it industry practice for companies such as Union to do such work themselves. Furthermore, these activities were neither essential to the business of Union nor were they an integral part thereof. They were not necessary to the production of oil.

“11) Any obligation Union had to install and maintain aids to navigation was non-contractual.

“LIABILITY

“The details of Lloyd Hebert’s accident are not disputed. The Court’s Findings of Fact set out in Numbers 1 through 7 above are amply supported by the evidence and indeed have not been seriously questioned by the defendant, either during the trial or in post-trial memoranda. Liability of Union Oil for damages sustained by Mr. Hebert clearly follows under Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1978) which holds the platform owner strictly liable without fault for injuries caused by defects or vices in their structures and their necessary appurtenances. The weak, corroded high pressure gas lift line involved in this case certainly qualifies as such.

“Further, an operator of oil and gas pipelines is bound to safely keep those products in the lines and not allow them to escape causing injury to others. Operators of such lines are bound to use care in laying and maintaining these lines and to carefully inspect them to detect and stop leaks. Wilson v. Scurlock Oil Company, 126 So.2d 429 (La.App.1961). The photographs of the failed section of pipe introduced into evidence as Exhibits P-7, P-8, P-10 and P-12 furnished ample evidence that Union negligently failed to fullfill (sic) this obligation in this instance resulting in Lloyd Hebert’s injuries. Furthermore, Mr. Lovell, the Union safety man testified that this pipe was simply worn out and needed to be replaced.

“Moreover, there is no evidence whatsoever in the record of any contributory negligence or assumption of the risk by Mr. Hebert which would bar his recovery.

“The only seriously disputed issue between the parties is the applicability of L.R.S. 23:1032 commonly referred to as the “Section 6” defense. The defendant concedes in brief that the defense is unavailable if the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. 901, et seq. applies instead of the Louisiana State Workmen’s Compensation Act 23:1021, et seq. which contains the defense. This Court and the parties are in agreement that Lloyd Hebert must satisfy the Supreme Court’s dual test of situs and status in order to be covered by the federal compensation act. Northeast Marine Terminal Company, Inc. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348 [53 L.Ed.2d 320] (1977) and [P.C.] Pfiefer [Pfeiffer] [Company,] Inc. v. Ford, [444 U.S. 69] 100 S.Ct. 328 [62 L.Ed.2d 225] (1979).

“In order to fullfill (sic) the status requirement, Lloyd Hebert must have been engaged in maritime employment, Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. 902. This Court so holds as a matter of fact based on the circumstances of his employment which involved sales and service of navigational aids with associated work on and over navigational water where the aids were installed and in service. Maritime employment, although not specifically defined in the Longshoremen’s and Harbor Workers’ Act, has reference to activities having to do with navigation or commerce on navigable waters. Weyerhauser Company v. Gilmore, (sic) 528 F.2d 957 (9th Cir., 1975), cert. denied, 429 U.S. 868 [97 S.Ct. 179, 50 L.Ed.2d 148] (1976), Fusco v. Perini, 601 F.2d 659 ([2nd Cir.] 1979) [444 U.S. 1028] 100 S.Ct. 697 [62 L.Ed.2d 664] (1980). Sales and service of aids to navigation on and over navigable water deals directly with the safe and proper conduct of navigation and commerce on navigable waters. Mr. Hebert’s activities generally and at the time of the accident were significantly related to navigation and to commerce on navigable waters and therefore are maritime in nature within the meaning of the Act and the jurisprudence.

“This is so, notwithstanding the fact that Mr. Hebert was not a longshoreman, harbor worker, ship builder, ship breaker, or ship repairman in the traditional sense of those terms and as they are enumerated in the Longshoremen’s Act. The act’s listing of these activities, is not exclusive and the stated test is ‘maritime employment’. [P.C.] Pfiefer [Pfeiffer] [Company, Inc.], supra Texports Stevedoring Co. v. Winchester, 554 F.2d 245 ([5th Cir.] 1977). Any remaining doubt as to coverage is resolved by the statutory presumption of coverage contained in the act, 33 U.S.C. 920(a).

“The situs requirement is set out in Section 903 of the Longshoremen’s Act and is likewise satisfied by the facts and circumstances of this case. The structure shown on photographic exhibits P-7 and P-10 clearly contemplates docking and the performance of maritime activities such as the work of the plaintiff, Lloyd Hebert. Moreover, it was adjacent to navigable waters as required by the Act. Since both situs and status are present, the federal compensation act applies and the Section 6 defense is unavailable to the defendant in this case. Lloyd Hebert is therefore entitled to judgment and compensation in damages. The intervenor is similarly entitled to recover.

“Assuming, arguendo, however, that the Federal Act does not apply and that the statutory employer defense is available to Union Oil, the result in this case is not changed since, as a matter of fact, this Court holds that Lloyd Hebert was not engaged in activities falling within the trade[,] business or occupation of the defendant at the time of the accident. A preponderance of the evidence presented convinces this Court that the business of Union Oil of California is the production of gas, while the business of the plaintiff and his employer, Automatic Power, Inc., is sales and service of aids to navigation.

“Evidence showing that Union Oil has not serviced its own navigational aids in inland waters for a decade or better was uncontroverted. Furthermore, the only evidence of industry custom demonstrated that Union and other similar companies also contract out the service of aid to navigation in inland waters. The fact that one or two companies, according to Mr. Lanoux, the vice-president of Automatic Power, service their own aids to navigation in certain limited areas of Louisiana state waters does not change the fact that the established and accepted industry practice and custom, including Union Oil’s, was to the contrary. While the maintenance of aids to navigation may be desirable to Union, it was neither essential to Union’s business of producing oil and gas nor was it an integral part thereof. Lushute v. Diesi, 354 So.2d 179 ([La.] 1978); Reeves v. Louisiana-Arkansas Railway, 282 So.2d 503 (La.1973). For additional insight into this area of Louisiana law, see Freeman v. Chevron Oil, 517 F.2d 201, 5th Cir. (1975) and Blanchard v. Engine and Gas Compressor Services, Inc., 613 F.2d 65, ([5th Cir.] 1980).

“Additionally, while Union’s contention that the plaintiff’s sole remedy against it is compensation where the work is being performed as a consequence of a contractual obligation of Union is generally correct, the application for an aid to navigation introduced as Exhibit D-2 and relied upon by Union as evidence of such a contract is in fact not a contract. Union’s mandatory compliance with law can hardly be considered a consensual agreement supported by bargained for consideration.

“Finally, the mere fact that Union was legally obligated to install and maintain aids to navigation does not necessarily bring that activity within Union’s trade[,] business or occupation. The gas lift platform in question certainly could have been operated without navigational lights, although it was desirable from Union’s point of view to have the lights and to comply with Coast Guard regulations. If Union’s simplistic approach to this issue were accepted by the Court, many anomalous situations would result. For example, if a service station employee certified a bakery truck to be safe and then issued a safety inspection sticker, he would arguably be engaged in the trade[,] business or occupation of the bakery thereby preventing him from recovering for injuries sustained from a tire rim exploding during his inspection merely because the accident occurred in connection with the bakery’s compliance with legal inspection regulations. Certainly the service station employee would be surprised to discover that his job of vehicle inspection and service was part of the bread baking business. It is the opinion of this Court that Union’s similar interpretation of the statute in this case goes too far.

“According to the evidence, Mr. Hebert was rendering expert technical services on behalf of a company engaged in a highly specialized field, a field in which Union was not competing or actively engaged in inland waters in Louisiana on platforms such as the one where the plaintiff’s accident occurred. These services were clearly not part of Union’s trade[,] business or occupation and the fact that maintenance work may have been required by law does nothing to change that fact.

“QUANTUM

“As stated in the Findings of Fact set out hereinabove, the Court is pursuaded (sic) that Mr. Hebert has sustained a severe permanently disabling injury. The evidence shows that he has undergone eight (8) separate surgical procedures on his left leg, ankle and foot, all requiring general an-ethesia. In addition to a severe compound fracture of the lower left leg requiring internal fixation with a metal plate and screws, Mr. Hebert has had a triple fusion of the ankle involving various complications resulting in prolonged treatment and the many surgical procedures. He has undergone an arthrotomy of the left knee and a myelogram of his low back for associated complaints resulting from added stress placed on those parts of his body by the injuries to his leg, ankle and foot. He has a permanent limp and must wear high-topped orthopedic shoes permanently. He can be expected to experience pain and swelling for the balance of his life. He is also likely to experience progressive degenerative arthritis of the left ankle. His treating physician, Dr. Christopher Cenac, testified that the plaintiff cannot engage in any activities involving climbing, squatting, heavy lifting or prolonged standing or walking. In any employment setting he will require periodic rest and leg elevation.

“As a result of his residual disabilities and the activity of limitations placed upon him by the treating physician, the Court finds that Mr. Hebert cannot return to his previous employment which required these activities. The Court gives great weight to the persuasive testimony of Mr. Hebert to the effect that he attempted to return to his regular duties but simply could not do so. His prospects for reemployment are bleak inasmuch as his work experience is limited to oilfield work, much of which required at least occasional heavy lifting and carrying. It therefore seems unreasonable to expect him to return to that field of endeavor. He has a high school diploma and some college experience, but quit because he was not well suited for college level work.

“It has been stipulated that Mr. Hebert has already incurred $28,981.41 in past medical expenses and the evidence shows that additional medical expenses will be incurred in the future. Plaintiff’s expert actuary and economist placed past lost wages at $34,170.06. With respect to future loss, plaintiff introduced evidence showing that if Mr. Hebert returns to employment earning a minimum wage, he will still loose (sic) $480,032.94 during the remainder of his work life expectancy. If he cannot find such work, he could lose up to $644,583.67. Taking all factors into consideration damages are awarded as follows:

“Past Wage Loss-$ 34,170.06
“Future Wage Loss and Impairment of Earning Capacity-$200,000.00
“Past Medical Expenses-$ 23,981.41
“Future Medical Expenses-$ 4,225.00
“Past and Future Mental and Physical Pain and Suffering and Permanent Disability-$200,000.00
TOTAL-$462,376.47

“With respect to the intervention, it has been stipulated that $10,998.00 in compensation benefits and $23,981.41 in medical expenses have been incurred on behalf of the plaintiff and paid by the intervenor, Employers Mutual Liability Insurance Co. of Wisconsin. Although these payments were made under Louisiana State Workmen’s Compensation Act and although the weekly compensation benefits were not accepted by the plaintiff, (apparently in an effort to avoid any allegations of election to receive State Compensation Benefits) the Court nevertheless finds that all such payments are to be reimbursed to Employers Mutual Liability Insurance Company of Wisconsin by the plaintiff out of the judgment rendered in favor of the plaintiff in this case, in light of the fact that such payments would have been due and owing under the Longshoremen’s and Harbor Workers’ Compensation Act. That sum, together with medical expenses incurred by stipulation of all parties, are then to be reimbursed by the plaintiff to Employers.”

Plaintiff has brought to our attention the recent case of Alford v. American Bridge Division, United States Steel Corporation, 642 F.2d 807 (5th Cir., 1981); on rehearing, 655 F.2d 86 (5th Cir., 1981). In Alford, supra, a number of workers were injured, and the court considered their cases separately in its opinion. Hector Cantu was the injured employee whose case is analogous to the case at bar. Cantu was a maintenance welder who was injured while working on a “black diamond” which was a navigational aid intended and required to be attached to the tops of barges as a daytime indicator when the barges were towing loads exceeding six hundred feet. The court found that the “black diamond” daytime indicator on which Cantu was working was a significant aid to and part of navigation and commerce and that Cantu therefore did have “employee” status as defined by LHWCA. We find that Alford, supra, is directly on point with this instant case and lends further support to the trial court’s decision.

While plaintiff has answered the appeal seeking an increase in damages, in reviewing this record we find that the evidence supports the trial court’s judgment with regard to quantum.

Finally, we find that intervenor should have the judgment of the trial court increased to include whatever amounts they have paid to plaintiff from the time judgment was signed until this judgment becomes final.

For the above reasons, the judgment of the trial court in favor of plaintiff, Lloyd A. Hebert, and against defendant, Union Oil Company of California, is affirmed.

The judgment rendered in favor of inter-venor, Employers Mutual Liability Insurance Company of Wisconsin, and against plaintiff, Lloyd A. Hebert, is amended, in order to increase said judgment to include all amounts paid by intervenor to plaintiff through the time that this judgment becomes final.

Defendant-appellant, Union Oil Company of California, is to pay all costs.

AMENDED IN PART AND AFFIRMED AS AMENDED.


text:
    Rebecca JENKINS, et al. v. Dennis DEARIE.
    No. 14282.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Charles Rea, Baton Rouge, for plaintiffs-appellees Rebecca Jenkins and Commercial Union Assurance Co.
    Joel B. Dickinson, Baton Rouge, for defendant-appellant Dennis Dearie.
    Before CHIASSON, EDWARDS, and LEAR, JJ.
   EDWARDS, Judge.

This suit for damages arises out of an automobile collision which occurred at the intersection of North Park and North Hampton Streets in Baton Rouge, Louisiana. Plaintiffs are Rebecca Jenkins, driver of one of the two automobiles involved in the collision and her automobile insurer, Commercial Union Assurance Company (Commercial). Defendant is Dennis Dearie, operator of the other vehicle. Defendant was uninsured at the time of the accident.

Ms. Jenkins was reimbursed by Commercial for the damage to her car with the exception of the $100 deductible provided on the collision coverage in her policy. In addition to paying Ms. Jenkins $2,483.20 under the collision provisions of the policy, Commercial paid Willis Jenkins, Ms. Jenkins’ father and a guest passenger in her vehicle, $1,900.00 in settlement of the personal injuries which he sustained under the uninsured motorist coverage provided in the policy. Commercial then filed this suit in subrogation against defendant for the amount paid under the policy, and Ms. Jenkins, as a co-plaintiff, seeks recovery of the $100 deductible. Defendant answered the petition and reconvened for the damages to his automobile. The trial court rendered judgment in favor of plaintiffs, and defendant then perfected this devolutive appeal.

The accident in question happened on July 23, 1978, at approximately 6:00 p.m. The streets were wet at the time of the accident, due to a continuing drizzle and a heavier rain which had fallen previously in the day. At the time of the accident, Ms. Jenkins was driving in a westerly direction on North Hampton Street, which was the favored street at its intersection with North Park. Defendant, on the other hand, was proceeding in a southerly direction on North Park Street, which is controlled by a stop sign at its junction with North Hampton. Defendant’s brother was a passenger in his vehicle at the time.

When defendant approached the stop sign on North Park, he stopped at the intersection. Because of the rain and some bushes at the intersection, defendant and his brother were unable to determine if cars on North Hampton were approaching the intersection. Hence, defendant moved forward until he was partially in the intersection. According to defendant’s testimony, he then asked his brother if any vehicles were approaching from his side of the car. His brother responded that nothing was coming. When defendant turned to look out his side of the car, he was struck by the vehicle driven by Ms. Jenkins.

The testimony of Ms. Jenkins indicates that she applied her brakes and changed lanes in an attempt to avoid the accident. However, she was unable to evade defendant’s vehicle, and a collision ensued.

On appeal, defendant contends the trial court erred in failing to find that Ms. Jenkins was guilty of contributory negligence, in failing to find that Ms. Jenkins had the last clear chance to avoid the accident, and in rejecting his reconventional demand for the damage to his vehicle. Each of plaintiff’s specifications of error addresses itself to a factual finding of the trial court. Accordingly, our review is limited to a determination of whether or not the trial court was clearly wrong in its findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

In rendering judgment for plaintiffs, the trial court necessarily found that Ms. Jenkins was free from negligence and that defendant’s negligence was the sole cause of the accident. Defendant contends that the record shows that the trial court was clearly wrong in finding that Ms. Jenkins was not negligent. Defendant asserts that the evidence adduced at trial clearly indicates that Ms. Jenkins was negligent in failing to keep a proper lookout.

Our review of the record indicates that the trial court’s finding is not clearly wrong. Ms. Jenkins testified that her sight was somewhat impaired by the rain. She testified that as soon as she saw defendant’s vehicle move into the intersection, she applied her brakes and swerved in an attempt to avoid a collision. Notwithstanding her efforts, Ms. Jenkins was unable to avoid impact with defendant’s vehicle. Under these circumstances, we conclude that the trial court was correct in finding that Ms. Jenkins was free from negligence.

Defendant further contends that the trial court erred in failing to apply the doctrine of last clear chance and, therefore, allow him recovery on his reconventional demand. In light of our conclusion that the trial court was correct in finding Ms. Jenkins to be free from negligence, defendant’s final two specifications clearly lack merit.

It is well established that the doctrine of last clear chance does not become applicable until the evidence shows that both the plaintiff and the defendant were negligent. Hebert v. Meibaum, 209 La. 156, 24 So.2d 297 (1945); Parr v. Vicari, 400 So.2d 1157 (La.App. 1st Cir. 1981); Mitchell v. Sigrest, 345 So.2d 141 (La.App. 1st Cir. 1977). Since the evidence does not show that Ms. Jenkins was negligent in the instant case, the doctrine of last clear chance is inapplicable, and defendant’s reeonven-tional demand was properly dismissed.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant, Dennis Dearie.

AFFIRMED.


text:
    Al J. BELAIRE v. Joseph VANDERBROOK, Jr., et al.
    No. 14286.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Nov. 23, 1981.
    Writ Denied Dec. 14, 1981.

      Lawrence K. Burleigh, Levy & Burleigh, Morgan City, for plaintiff.
    Carlos E. Lazarus, Jr., Henderson, Hane-mann & Morris, Houma, for defendants.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

This appeal is from a judgment against defendants, Joseph Vanderbrook, Jr., Berwick Oil Company, and Continental Insurance Company, which resulted from a head-on collision between Mr. Vanderbrook and Al J. Belaire, plaintiff. Berwick Oil Company is Mr. Vanderbrook’s employer; and Continental Insurance Company is Mr. Vanderbrook’s and Berwick Oil Company’s automobile liability insurer. From the judgment of the trial court, defendants appeal assigning three specifications of error:

1. The trial court erred in admitting evidence of defendant’s, Mr. Vanderbrook’s, actions during the twelve hours preceding the accident, particularly of his intoxication, after an attempted admission of liability on the part of defendants.

2. The trial court erred in accepting the jury verdict which was excessive.

3. The trial court erred in failing to grant a new trial or in refusing to reduce the jury award.

It was uncontested that the accident was caused by Mr. Vanderbrook while returning from a company mission for Berwick Oil Company in Gretna, Louisiana. He stayed up all the night before the accident drinking beer. The next day, on his return trip, his car crossed the center line of the highway and collided with plaintiff’s vehicle. The accident occurred at approximately 11:25 a. m. under clear weather conditions. The police officer on the scene took blood samples from defendant Vanderbrook, which registered .10 alcoholic content.

According to the transcript, before trial, in the trial judge’s chambers, defendants attempted to make an admission of liability and objected to the plaintiff’s offering any evidence not pertaining to the accident, impact, or severity thereof. Particularly, defendants wanted to exclude information as to defendant’s intoxication at the time of the accident. However, plaintiff opposed the admission on the ground that it was not made timely, in accordance with the terms of the pretrial order. The trial court decided to hear limited evidence on the matter of intoxication.

On appeal, defendant does not specify when he made or tried to make his admission before the jury. We are not able to find in the record any such admission to the jury. Further, defendants never made any objection to testimony on intoxication during trial. However, defendants argue that, because the trial court allowed the information about intoxication to be admitted, it inflamed the jury and caused an excessive award.

We do not agree under the circumstances. First, counsel for defendants has failed to make a showing that he made a valid admission of liability. We find no admission of liability before the jury in the record. Hence, the circumstances surrounding the accident were at issue.

Secondly, although counsel was warned before trial that evidence would be introduced, he did not attempt to object to that evidence concerning the accident during trial. Since counsel did not take advantage of his opportunities to object, we deem that he waived his right. Thibodeaux v. Western World Insurance Company, 391 So.2d 24 (La.App. 3rd Cir., 1980); Wade v. Joffrion, 387 So.2d 1265 (La.App. 1st Cir., 1980). Under these circumstances, we do not find that the trial court erred in admitting testimony dealing with defendant’s intoxication.

Specifications of error two and three both address defendants’ contention that the jury’s award for damages was excessive. The jury made a lump sum award in the amount of $275,000.00, which did not specify amounts for general or special damages. However, defendants do not contest any specific finding of special damages. Their argument is addressed to the damage award in general.

The standard of review to be applied in this case was recently set forth by the Louisiana Supreme Court in Perniciaro v. Brinch, 384 So.2d 392 (La.1980):

“In the assessment of damages in cases of quasi offenses much discretion must be left to the judge or jury. La.C.C. art. 1934(3). Before a court of appeal can disturb an award made by a trial court the record must clearly reveal that the trier of fact abused his discretion in making his award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). Before an appellate court can disturb a factual finding by the trial court, it must determine that the finding is manifestly erroneous and has no reasonable factual basis. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).”

Our review of the record in this matter reveals that plaintiff, at the time of the accident, was a fairly active man 47 or 48 years of age, who had a history of prior athletic competition. He was still fairly active prior to the accident, although not in competition. He jogged occasionally and participated in other minor sports in small ways. He was the principal of Morgan City High School and mingled with the athletes and other students.

As a result of the accident, plaintiff has a 35% permanent disability of his foot caused by crushed bones. This condition will cause him occasional pain for the rest of his life, especially if he attempts any vigorous activities. He has endured fusion surgery for the three crushed bones in the damaged ankle. If the bones of his foot do not fuse after surgery, he will probably have to undergo the surgery again. There is a definite possibility that the fusion will not occur. Plaintiff had a cast on his ankle for six weeks prior to surgery and at the time of the trial was again required to wear a cast.

Further, plaintiff has a 45-50% permanent disability of his lower extremity as a whole, including his hip, which will cause him occasional pain for the rest of his life. He has begun to develop degenerative changes, such as arthritis, which his treating physician believes will probably worsen. He was confined to a wheelchair for five to six weeks because of his hip injury and is still restricted in his activities. He was using crutches at the time of trial and is still in pain. As further results of his injury, plaintiff suffered a weight loss of some forty-five pounds.

In special damages, plaintiff showed medical expenses of $5,737.21, lost wages in the amount of $2,385.61, and an anticipated loss of future wages of $3,343.00.

Any award, particularly from a jury, is difficult to evaluate. Plaintiff’s demeanor, his experiences, and the medical evidence all play an integral part of the jurors’ resolution of the amount to be awarded for injury. Under the circumstances of this ease, considering the severity and long-lasting nature of the injury, we find no abuse of discretion in the jury’s award, nor in the trial court’s refusal to grant a new trial or reduce the award. See Perniciaro v. Brinch, supra; Kostrzewa v. Wilson, 397 So.2d 859 (La.App. 4th Cir., 1981).

For the foregoing reasons, the judgment of the trial court is affirmed. Appellants are to bear all costs of this appeal.

AFFIRMED.

      . The refusal to grant a new trial is similar to an interlocutory judgment and cannot be considered a final judgment. In the absence of an allegation of irreparable injury, a litigant cannot appeal from a judgment refusing to grant a new trial. However, where appellant has also appealed from the final judgment, the complaints relative to the dismissal of the motion will be considered in connection with the appeal from the final judgment. Acomb v. Acomb, 160 So.2d 326 (La.App. 4th Cir., 1964). For these reasons we have considered appellant’s specifications of error relative to both the final judgment and the denial of the motion for a new trial.