author: CUTRER, Judge. PER CURIAM.

text:
    James W. COLEMAN, Plaintiff-Appellant, v. Carlton L. JACKSON, et al., Defendants-Appellees.
    No. 82-183.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Rehearing Denied Dec. 2, 1982.

      Jones, Tete, Nolen, Hanchey, Swift & Spears, Gregory P. Massey, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, G. Michael Bourgeois, Plauche, Smith, Hebert & Nieset, Michael J. McNulty, III, David W. Burton, DeRidder, Joe J. Tritico, Lake Charles, for defendants-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal emanates from a suit for damages arising out of a “head-on” collision involving automobiles driven by James W. Coleman and Gregory T. Jackson, the minor son (seventeen years of age) of Carlton L. Jackson.

This “head-on” collision occurred on Thursday, May 29, 1980, at approximately 9:25 P.M., on U.S. Highway 171, in Beauregard Parish north of Longville, Louisiana. This highway is a standard two-lane highway, 24 feet in width. The roadway was dry and straight in the vicinity of the impact. There were no weather conditions existing that would impair the vision of the drivers.

James W. Coleman was proceeding north, in a 1975 American Motors Matador, on Highway 171 toward DeRidder, and Gregory Todd Jackson was proceeding south in a 1977 Buick owned by Aaron and Willa Garner. Both drivers were alone in their vehicles at the time of the accident.

Coleman filed suit for damages against Carlton L. Jackson, the father of the minor, Gregory, and his liability insurer, Allstate Insurance Company (Allstate).

Southern Farm Bureau Casualty Insurance Company (Southern Farm), the liability insurer of the Coleman vehicle, filed an intervention seeking to recover $15,000.00 paid to Coleman under its medical payments coverage and the uninsured motorist coverage of the policy.

American Bankers Insurance Company of Florida (American Bankers) filed an intervention to recover $3,659.23 paid to the Garners under American Bankers’ collision coverage of the Garner vehicle. This intervention seeks judgment against Coleman and his liability insurer, Southern Farm, and Jackson and his liability insurer, Allstate.

The trial court rendered judgment dismissing Coleman’s suit and the intervention of his insurer, Southern Farm. Judgment was rendered in favor of American Bankers and against Coleman and his insurer, Southern Farm, Jackson and his insurer, Allstate in solido for the sum prayed for. Only Coleman appealed. We affirm in part, reverse in part and render judgment.

The substantial issue on appeal is whether the trial court was clearly wrong in its finding of contributory negligence on the part of Coleman.

In order to properly evaluate the issue of contributory negligence by Coleman, we will first discuss the evidence surrounding the occurrence of the accident and the negligence of Gregory Jackson.

NEGLIGENCE OF GREGORY JACKSON

On the day of the accident, Gregory had worked for Aaron Garner as a mason helper. Gregory finished his work at 3:30 P.M. and went to Garner’s home to see his girl friend, Garner’s daughter. After visiting and eating dinner with the Garners, Gregory left about 9:00 P.M. in the Garner automobile to proceed south on Highway 171 to his father and mother’s home where he resided. There is no evidence that Gregory had consumed any alcoholic beverages.

Gregory testified that he was proceeding south on Highway 171 with the cruise control on at a speed of approximately 50 miles per hour. As he approached the accident scene, Gregory stated he saw the lights of the Coleman vehicle approaching from the south. As he saw the vehicle approach, Gregory stated that the vehicle made a slight swerve toward the centerline as if to avoid something. He did not observe the vehicle cross the centerline. He saw the approaching vehicle straighten up in its lane of traffic. The next thing Gregory remembers is the lights of the other car nearing his vehicle. His testimony in this regard is as follows:

“Q. And — but you don’t remember at all putting your foot on the brake and disengaging that cruise control, is that right?
“A. That’s right.
“Q. Now, Todd, when you saw that vehicle in front of you swerve a little bit, you then saw that vehicle get back on line, and then the lights, and that was the last thing that you remember?
“A. And — that’s when the lights were right up on me, and then that was — that’s the last thing I remember.
“Q. That’s the last thing you remember.
“A. Until they were pulling me out of the car.”

Gregory did not recall taking any evasive action to avoid the accident nor does he contend that the slight swerve of Coleman’s car caused him to go into the other lane.

The accident was investigated by Trooper Jerry Craft of the Louisiana State Police. This officer found that the Jackson vehicle came to rest in the ditch on the east side of the highway facing west. The Coleman vehicle came to rest near the edge of the highway in the northbound lane facing northeast. Skid marks and gouges in the road surface indicate the point of impact.

Trooper Craft made pictures of the scene the night of the accident and also the following day. The investigation led the officer to the conclusion that the accident occurred in the northbound lane of travel which was Coleman’s lane of travel. The impact occurred approximately five feet from the centerline. The pictures in evidence reflect skid marks left by Coleman and gouge marks at the point of impact in the northbound lane of traffic. The two vehicles were each extensively damaged on the right front and along their right sides.

In his reasons for judgment the trial judge concluded that young Gregory Jackson was negligent and that such negligence was a cause of the accident. The court reasoned, in part, as follows:

“The evidence in this case preponderates that the collision, or the impact, between these two vehicles occurred in the northbound lane of traffic. And the Court so finds.
“Court finds that Mr. Jackson’s vehicle went across the centerline into the northbound lane, and this is prima facie evidence of negligence on the part of Mr. Jackson. And the Court finds that he failed to show, by clear convincing evidence, a justification or excuse for crossing the centerline. Now, there is an indication that the on-coming Coleman vehicle swerved toward the centerline, but Mr. Jackson, excuse me, no, Mr. Jackson, was unable to say and did not say that he crossed the centerline because of any action on the part of Mr. Coleman’s automobile.
“So, this is not sufficient in the judgment of this Court to meet the requirements of clear and convincing evidence of justification or excuse for crossing the centerline. So, the Court concluded that Mr. Gregory Todd Jackson was guilty of negligence for the reasons which I have stated.”

The undisputed evidence fully supports the trial court’s conclusion that Gregory Jackson crossed the centerline of the highway and struck Coleman’s automobile head-on approximately five feet inside Coleman’s lane. No explanation or justification was given by Gregory for his being in the wrong lane.

“It is well established in Louisiana that when a collision occurs between two vehicles, one of which is in the wrong lane of travel, there is a presumption that the driver in the wrong lane was negligent, and that the burden is on him to show that the collision was not caused by his negligence....”

Simon v. Ford Motor Company, 282 So.2d 126, 128 (La.1973).

Since Gregory Jackson could give no explanation or justification for his being well within Coleman’s lane of travel at the time of the collision, these principles apply. We find that Gregory Jackson was negligent in the operation of the vehicle he was driving and such negligence was a cause of the accident. The trial judge was fully supported in his conclusion.

CONTRIBUTORY NEGLIGENCE OF COLEMAN

Since we have found that young Gregory Jackson was at fault in causing the accident, we shall now approach the issue of contributory negligence by Coleman.

Contributory negligence is an affirmative defense that must be specially pleaded. Defendant bears the burden of establishing the essential facts to support the plea by a preponderance of the evidence.

The negligence of a plaintiff could not constitute contributory negligence unless such negligence was a legal cause of his accident. The threshold inquiry in the determination of legal cause is whether the act was a substantial factor in causing the injury. Breithaupt v. Sellers, 390 So.2d 870 (La.1980).

With these principles in mind, we proceed to examine the evidence to determine if defendants have presented facts which reflect that Coleman was negligent and that such negligence was a legal cause of the accident.

The only witnesses to the occurrence of the accident were the two drivers. We have previously reviewed the testimony of Gregory Jackson, minor son of defendant, Carlton Jackson, which clearly reflected that he was negligent in crossing into Coleman’s lane of travel without any justification.

Coleman stated that during the day of the accident he had performed his duties as an employee of Service Machines, Inc. of Lake Charles. He worked until 5:00 P.M., at which time he drank a couple of seven ounce beers with his employer. He went to his residence and moved his personal belongings to another apartment in Lake Charles. During this time he drank one more small beer. Subsequently he called his wife, who lived in DeRidder and from whom Coleman had been separated for some time, and told her that he wanted to go to DeRidder to talk with her. She consented to his request and he left Lake Charles to proceed to DeRidder at 9:00 P.M. The accident occurred shortly thereafter.

Coleman’s unrefuted testimony as to the occurrence of the accident was that, as he went over a hill in the vicinity of the accident at about 55 to 60 miles per hour, he was facing the lights of Gregory’s car and that is the last thing he remembers. He didn’t recall putting on his brakes even though it is clear that he left a total of 69 feet of skid marks, which reflects skid marks before and after impact. He remembered nothing of the occurrence of the accident or how it happened.

The accident was investigated by Trooper Craft, an officer with fifteen years of experience. This officer testified that Coleman’s vehicle left a total of 69 feet of skid marks. These skid marks are shown in the photographs in evidence, made that night and the following morning. The photographs support the conclusion of the trial court that the impact occurred approximately five feet inside of Coleman’s northbound lane of travel. The gouge marks in the pavement show the point of impact.

When Trooper Craft arrived at the scene he found Coleman injured and in apparent extreme pain. He asked what had happened and Coleman replied, “I don’t know, I might have went to sleep.” When questioned about the statement Coleman stated that, at the time he was asked the question by Trooper Craft, he was unable to recall the details of the accident and he assumed that he may have gone to sleep.

The trial judge, in his reasons for judgment, concluded that Coleman was not keeping a proper lookout and did not have his vehicle under control. The trial judge, in holding Coleman guilty of contributory negligence, stated that he believed “[t]hat Mr. Coleman probably did doze off. He probably did swerve and perhaps much more dramatically than the evidence or testimony of Jackson would indicate, and caused a reaction on Jackson’s part.” The record simply does not contain evidence to support these conclusions.

The testimony of the two drivers only establishes that, as they approached each other, they both saw the headlights of the other. Neither driver remembers anything of the facts surrounding the occurrence of the accident.

The only other evidence that would shed some light on the occurrence is the skid marks which reflect clearly that Coleman was well within his lane at the time he applied his brakes and remained there until the impact.

Since Coleman (even though he can’t remember doing so) ascertained the presence of Gregory in his lane of travel and applied his brakes, leaving skid marks in a futile attempt to avoid the impact, he had to have been awake to decide to apply his brakes.

There is no evidence that Coleman swerved over into Gregory’s lane of travel, causing him to go into Coleman’s lane of travel. Gregory did not testify to such nor does he contend that this was the case.

As we have previously stated, the trial court correctly applied the legal presumption in finding Gregory guilty of negligence and that such negligence was a legal cause of the accident since Gregory was in Coleman’s lane of travel at the time of the impact. We hasten to point out that no such presumption is available to defendants in carrying their burden of proof to show that Coleman was also negligent and such negligence was a legal cause (substantial fact) of the accident.

Whether plaintiff’s conduct was a cause in fact of his injury is a question of fact which must be proved by the defendants by a preponderance of the evidence. The court, in assessing negligence or the causative role of a plaintiff’s negligence, cannot base its conclusions on assumptions or speculations. Such conclusions must be based upon proven fact, without which defendants will have failed to meet their burden of proving causation. See: Breithaupt v. Seller, supra.

We hold that the trial judge was clearly wrong in dismissing Coleman’s claim on the ground of contributory negligence. The judgment of the trial court will be reversed in this regard.

Also, having found Jackson liable, that portion of the judgment recognizing American Banker’s intervention, for sums paid to the Garners for their car damage, will be amended by dismissing the intervention judgment against Coleman. In all other respects the intervention judgment of American Bankers will be affirmed.

DAMAGES

James Coleman, age twenty-five at the time of the accident, sustained serious injuries. In addition to generalized bodily contusions and abrasions he received a com-minuted (segmented) fracture of the mid-shaft of his right femur.

As a result of Coleman’s injury he was confined to the Lake Charles Memorial Hospital for about 48 days under the care of Dr. David Drez. Coleman remained confined in his hospital bed on his back in balanced skeletal traction for this length of time. A metal pin was surgically implanted in Coleman’s leg just below his knee. This pin was used to fascilitate the traction which was to re-align the fractured femur.

On July 14, 1980, Coleman was taken out of traction, the pin was surgically removed and he was placed in a cast brace. Such a cast consists of a solid fiberglass cast from the toes up to the knee. At the knee end of this cast two hinges extended to just above the knee connecting to a plastic sleeve. This plastic sleeve extended up to the groin area. Coleman remained in the hospital with this cast three additional days. After leaving the hospital, Coleman continued to wear the cast brace from July 16, 1980, until October 1, 1980. During this time Coleman needed the help of crutches to move around.

Coleman returned to his work around October 1, 1980, working partial days in the beginning. Coleman continued with therapy after he returned to work. Coleman testified that he was able to perform his full duties at the time of trial (January 1982) and had not suffered any substantial pain for about five months prior to trial. He was able to perform his full time duties.

Coleman returned to Dr. Drez on March 9, 1981. Dr. Drez’s examination revealed that Coleman’s injured leg had sustained a shortening of approximately three centimeters (about one and one-half inches). Dr. Drez prescribed a heel lift to compensate for the shortening.

Coleman returned to Dr. Drez’s office on August 13, 1981, complaining of pain. Dr. Drez’s associate, Dr. Gunderson, noted that Coleman’s pain was occurring in Coleman’s iliotibial band (knee area). Dr. Drez stated that such tenderness was consistent with the injury, subsequent casting, and return to function.

Dr. Drez’s final examination left the doctor with the impression that Coleman’s injury had resulted in an overall disability of thirty percent in his lower extremity or twelve percent as to the body. Dr. Drez believed that due to Coleman’s young age at the time of the accident and to the fact that the injury did not occur in a joint, Coleman’s chances of developing arthritis had not been increased. As we consider Coleman’s pain and suffering during the months after the accident and the disability he suffered, we will award general damages in the amount of $40,000.00.

As to Coleman’s loss of wages, the record reflects that he lost four months wages which were $1,050.00 per month. This amount will be awarded in special damages.

Also, the following medical expenses are proven and will be awarded:

Ambulance Service $ 105.00
Hospital Expenses 6,841.75
Dr. David Drez 1,945.00
Diagnostic Expenses 201.00
Anesthesia Bill 104.00
Cast Bill 201.88
Total Medical $9,398.63

Further, the value of the damage to Coleman’s car was testified to by Dennis Ray Smith, an experienced car dealer. He stated that he was acquainted with Coleman’s car before the accident and had also seen it after the wreck. He stated the car was “tore all to pieces” by the accident. We find the car was a total loss. Smith stated that the car was classified as a nice car before the accident and had a value of from $1,700.00 to $1,800.00. We shall award Coleman $1,700.00 for the loss of the automobile.

In summary, we shall render judgment in favor of Coleman for the following amounts:

General Damages $ 40,000.00
Special Damages 15.298.63
$ 55,298.63

For the reasons assigned:

That portion of the trial court judgment dismissing James W. Coleman’s claim against Carlton L. Jackson, individually and as administrator of the estate of his minor son, Gregory T. Jackson, and Allstate Insurance Company, is reversed and set aside. Judgment is hereby rendered in favor of James W. Coleman and against Carlton L. Jackson, individually and as administrator of the estate of his minor son, Gregory T. Jackson, and Allstate Insurance Company in solido for the sum of $55,298.63 with legal interest from judicial demand until paid. The liability of Allstate Insurance Company shall not exceed its policy limits of $10,000.00.

That portion of the trial court judgment which granted judgment in favor of American Bankers Insurance Company of Florida on its intervention against Carlton Jackson, individually and as administrator of the estate of his minor son, Gregory T. Jackson, Allstate Insurance Company, James W. Coleman and Southern Farm Bureau Casualty Insurance Company in solido for the sum of $3,659.23 plus legal interest is hereby amended by reversing and setting aside the judgment insofar as it affects James W. Coleman. In all other respects this portion of the judgment is affirmed.

That portion of the trial court judgment dismissing Southern Farm Bureau Casualty Insurance Company’s intervention is affirmed.

The expert witness fees are hereby fixed and taxed as costs as follow:

Dr. David Drez $ 250.00
Ross Joseph Macklin 200.00
Dennis Ray Smith 100.00

The following expenses are hereby fixed and taxed as costs:

Court Reporter Pees $ 138.50
Copying Hospital Records 114.00

The costs of the trial court and for this appeal shall be paid by defendants-appel-lees.

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

ON APPLICATION FOR REHEARING

PER CURIAM.

Defendants-appellees in their application for rehearing correctly suggest that we erred in our statement that: “[T]he liability of Allstate Insurance Company shall not exceed its policy limits of $10,000.00.” We recognize this error and we now amend our opinion to limit Allstate’s liability for general damages to be $5,000.00. In addition, Allstate’s liability, under its property damage coverage, is limited to $1,700.00, the sum awarded herein for property loss.

With this amendment, defendants-appel-lees’ application for a rehearing is denied.

      . Intervenor, Southern Farm, did not appeal. The judgment dismissing Southern Farm’s intervention is not before this court. R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980).


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    Carolyn C. FAIR, Individually and as Tutrix for and on Behalf of the Minor, Jeremy Lee FAIR, Plaintiff/Appellant, v. The BLACK AND DECKER MANUFACTURING CO., et al.
    No. 15,007.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Law Offices of Walter J. Barnes by Ronald Coleman, Baton Rouge, for plaintiff/appellant. *
    Cotton, Bolton, Roberts & Hoychick by John Hoychick, Jr., Rayville, for defendant/appellee, Clyde B. Mullican.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, for defendant/appellee, The Black and Decker Mfg. Co.
    Before HALL, FRED W. JONES, Jr., and SEXTON, JJ.
   SEXTON, Judge.

This is an appeal from a sustained motion to dismiss a suit for wrongful death damages. The suit was brought by Carolyn C. Fair on behalf of herself and her minor son Jeremy Lee Fair for the electrocution of her deceased husband Mickey Fair.

Mrs. Fair initially brought suit against Clyde Mullican, owner of the property upon which Mickey Fair was working at the time of his death, and The Black and Decker Manufacturing Company, the manufacturer of the electric drill which Mr. Fair was using at the time of his death. Mrs. Fair released Black and Decker before trial, and thus at trial, she was left to prosecute her claims against only defendant Mullican. On the trial, defendant Mullican moved for a dismissal after the close of plaintiff’s case in chief on the grounds that plaintiff had not established a cause of action against him. The trial court granted the motion, dismissing Mrs. Fair’s claims against Clyde Mullican at plaintiff’s costs. Mrs. Fair now appeals the trial court’s dismissal of her suit against Clyde Mullican. We affirm.

On August 1,1979, decedent Mickey Fair was employed by building contractor David Patton to help construct a metal barn for defendant Clyde Mullican, which Patton had contracted with Mullican to erect. The metal barn was being constructed on Mr. Mullican’s property and working with Mr. Fair on the project were Kenneth Mason, his father Tommy Mason, the job foreman, and Kenneth Mason’s uncle (unnamed in the record).

Prior to Mickey Fair’s death, he was laying and installing tin sheets on the roof of the metal barn with Kenneth Mason. Mr. Fair was using an electric Black and Decker drill to drill holes in the tin sheets and an electric impacter to bolt the tin sheets to the roof of the barn. At the end of the power drill’s cord was an electric plug which was two-pronged rather than three-pronged; the plug on the end of the drill’s electric cord was absent a ground prong and the drill was thus devoid of a “ground connection.” There were at least two extension cords connecting the power drill’s cord and two-pronged plug with the electrical outlet. The outlet or electrical receptacle into which the extension cord was plugged was owned by Mr. Mullican and located on a small storage shed on his property. This was a two-holed receptacle or outlet and thus did not permit the insertion of a three-pronged or “grounded” electrical plug or cord.

Shortly before the fatal accident, the electric drill — then used by Mickey Fair— began “shorting out.” Mr. Fair then handed the drill down off the roof to Tommy Mason and his brother who were working at ground level. Tommy Mason briefly “repaired” the power drill, tested it, and handed it back to Mickey Fair, atop the building. Kenneth Mason plugged the drill’s cord back in, and Mr. Fair resumed using the drill to install the tin sheets. Mr. Fair thereafter went to the peak of the roof to assist Kenneth Mason bolt down a piece of tin that was particularly troublesome for Mason to install. In the course of assisting Mason, Mr. Fair pressed the trigger of the electric drill and the drill, in the words of Kenneth Mason, “shorted out.”

The sequence of events which next ensued occurred at approximately 12:30 p.m., and is best characterized by Kenneth Mason’s trial testimony:

“[A]s soon as it hit him, he ... he hollered one time and I knew what happened and I hollered and they unplugged it. He, you know, wasn’t in it but just a few seconds, and then he ... he was right on the edge of the building and he started rolling off, you know. We was right in the middle of the building and he rolled off and I grabbed his leg, but he was pretty good size and he liked to pulled me off the building. My father caught his head and shoulders before he hit the ground. His head never did hit.”

Defendant Clyde Mullican immediately carried Mickey Fair to the hospital in the cab of his pickup, but it appears from the record that Mr. Fair had died at the scene of the accident.

It was established at the trial that the apparent short circuiting of the power drill was caused by the contact of an exposed electrical conductor inside the drill’s casing with the drill casing itself. According to electrical engineer John Tucker, “a black conductor from the switch that goes to the motor [was] imbedded in the metallic part of the drill and the copper [was] exposed and it was actually touching the drill case .... ” Mr. Tucker reached the conclusion that the short circuiting was caused by the exposed conductor by testing the electric charge present in the drill casing before and after the exposed part was covered with electrical tape.

Plaintiff’s claim against the sole remaining defendant Mullican, at the trial level, was alternatively based on defendant’s negligence and strict liability. The essence of the negligence claim is that defendant had acted unreasonably, under LSA-C.C. Art. 2316, in inviting the presence of construction workers and the use of electrical tools while only affording two-holed electrical outlets for their use. The substance of the strict liability allegation was that defendant was the owner and thus the custodian of a defective and unreasonably dangerous “thing” — the two-holed electrical outlet— and was therefore strictly liable under the principles of LSA-C.C. Art. 2317.

Negligence and strict liability for things in one’s custody are, of course, definitionally distinct. “Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It is a departure from the conduct expectable of a reasonably prudent man under like circumstances.” Pence v. Ketchum, 326 So.2d 831, 835 (La.1976). While negligence is unreasonable conduct, the liability emanating from LSA-C.C. Art. 2317 is based upon a defendant’s care or custody of a thing which causes damages because it is defective or unreasonably dangerous. “[T]he liability of the guardian of a thing for damages caused through the vice or defect of the thing has been interpreted as providing for liability of the guardian without personal negligence on his part, his legal fault ... being based upon the breach of his legal obligation to keep his thing in such condition or in such control that it does no damage to others.” Loescher v. Parr, 324 So.2d 441, 447-48 (La.1975) (emphasis added).

While there is thus a distinct conceptual foundation underlying each theory of recovery, plaintiff cannot succeed under either unless causation is established. Under a negligence theory, the unreasonable act must cause the damages of which plaintiff complains. Under LSA-C.C. Art. 2317 genre of strict liability, the unreasonably dangerous thing must have caused plaintiff’s damages. Hebert v. Maryland Casualty Co., 366 So.2d 1044 (La.App. 1st Cir. 1978); Stevens v. Richardson, 156 So. 779 (La.App. 1st Cir.1934).

The linchpin of both tort allegations is plaintiff’s contention that Mullican caused Mr. Fair’s death by affording only a two-holed electrical outlet to the construction workers erecting the metal barn on his property. Plaintiff’s reasoning is as follows: Mullican’s two-holed receptacles precluded the use of a three-pronged or “grounded” electrical plug since a three-pronged plug can simply not be inserted into a two-holed receptacle. Because the use of a grounded plug was precluded, a grounded and continuous electrical circuit could simply not exist. An unbroken and circular electrical flow was made an impossibility, and electricity could therefore not achieve a return flow from the power drill to a grounded electrical source.

Plaintiff’s reasoning is sound as far as it goes, however it simply does not proceed far enough to resolve the pivotal factual question which is at the crux of this case. A careful analysis of the facts of this case reveals that the two-holed receptacle owned by defendant Clyde Mullican and used by Mickey Pair did not cause decedent’s death.

We reach this conclusion because the third or “ground” prong normally present on the plug of the electric drill’s cord had been cut off. Without this ground prong or “bridge”, the electricity present in the casing could not achieve a reverse flow through the plug, and could not reach or return to the extension cord to which the plug was connected. The ground wire present in the extension cord was thus rendered ineffective for transmitting electricity back to the “ground.” In short, the absence of a ground prong on the plug of the electric drill’s cord effectively severed the circular continuity of the electrical circuit and prevented the return flow of electricity from the drill to the outlet. The removal of the ground prong normally present on the plug of the drill’s cord irretrievably destroyed the “grounded” connection.

Because of the ground prong’s absence, the electricity in the casing could not have achieved a return flow to the outlet even if a three-holed receptacle would have been made available. Thus, Clyde Mullican’s two-holed receptacle did not cause the electrocution. The electrocution would have occurred even if a two-holed receptacle had not been utilized. Because of the fatal absence of a three-pronged plug Mickey Fair would have died even if a three-holed receptacle had been provided by Clyde Mul-lican.

This causal fact was amply developed by the testimony of electrical engineer John C. Tucker, plaintiffs witness who was accepted on the trial as a qualified expert:

Q. In other words, with that ground prong missing, the accident would still have happened?
A. That is correct.
Q. The ground prong on the drill?
A. That’s correct. That removed the case ground.
Q. So that even if the electrical outlet had been grounded, the accident would still have occurred?
A. In my opinion it would have.

The trial court denied recovery. Based upon our factual finding that Clyde Mulli-can’s two-holed receptacle did not cause decedent’s electrocution, we uphold the trial court. Accordingly, the trial court’s judgment is affirmed at plaintiff’s costs.

AFFIRMED.

      . Black and Decker only remained a party to the litigation insofar as a third party demand was filed by defendant Mullican against Black and Decker for any amounts for which Mulli-can might be adjudged liable to plaintiff. The importance of Mullican’s third party demand, however, is mooted by the resolution of this appeal.

      . Although there was some uncertainty as to precisely which outlet was being used at the time of decedent’s death, there is little genuine doubt that the outlet was owned by Mr. Mulli-can, that the outlet was located on Mr. Mulli-can’s storage shed, and that the outlets located on Mr. Mullican’s storage shed were two-holed, rather than three-holed receptacles.

      . We have serious doubts that a homeowner has a “duty” to protect a repairman called to the premises from being electrocuted by that repairman’s faulty equipment as a result of not having grounded receptacles. Does and/or should the average homeowner have the necessary knowledge of electrical forces? However, obviously our analysis in this cause precludes the necessity of a discussion of this subject.

      . We are in no wise unaware that our analysis and determination could be entirely transformed if the evidence established that the ground prong of the drill’s cord plug was “cut off” in response to the workers’ discovery that the available outlets were two-holed. If this were the case, the two-holed receptacle could still be said to have caused the electrocution by impelling the workers to remove the ground prong and thus destroy the ground connection. However, plaintiff did not establish this. Indeed, it appears, although the testimony is not unequivocal in this respect, that the ground prong was removed prior to, and not in response to, the workers’ discovery that the receptacles were two-holed.


author: JASPER E. JONES, Judge.

text:
    John M. KELLEY, Plaintiff-Appellee, v. Arlton STRINGER, Defendant-Appellant.
    No. 15035.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Rehearing Denied Dec. 9, 1982.
    Writ Denied Feb. 4,1983.

      Law Offices of Bobby L. Culpepper by Bobby L. Culpepper, Jonesboro, for defendant-appellant.
    Whitten & Blake by Leon H. Whitten, Jonesboro, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

This is a boundary action. The plaintiff is John M. Kelley. The defendant is Arlton Stringer. After a trial on the merits the district judge rendered judgment fixing the boundary along the ideal line determined by the court appointed surveyor as per the record title of the litigants, rejecting the demands for damages made by both parties and assessing costs against both parties. Stringer appealed and Kelley answered the appeal.

The assignments of error made by both parties present four issues for decision:

1) has Stringer acquired the disputed area east of the ideal boundary by acquisitive prescription;
2) is either party entitled to damages;
3) what is the proper amount of the surveyor’s fee; and
4) how should the costs of this proceeding be taxed.

The Facts

The parties are owners of adjoining tracts of land in rural Jackson Parish. Kelley acquired his property in 1979. The appellant acquired his property adjacent to the Kelley property from his mother’s succession in 1971 and by deed from his brother in 1977. The disputed boundary is depicted in the sketch below.

The lands of Kelley and Stringer are separated by a fence. Kelley’s witnesses testified that the northern portion of the fence was constructed by his ancestors in title in 1945 and was tied in to the older pre-exist-ing southern portion of the fence. Stringer’s witnesses testified that the fence was built by his ancestors in title in the 1920s.

At its southern end the fence encroaches slightly on land under Stringer’s title and at its northern end the fence encroaches slightly on land under Kelley’s title. The net difference is .05 acres in Stringer’s favor. Neither the evidence nor the briefs contain any indication that either party denies that the fence on the southern part of the boundary which encroaches upon defendant’s record title has not been the recognized visible boundary between the respective tracts by their respective owners for far more than thirty years.

This controversy flared after Kelley began making plans to build a home on his property. Because of a creek Kelley must build his driveway from La. Highway 811 along the extreme western edge of his property or incur the expense of bridging the creek. However, there is insufficient room between the west bank of the creek and the fence for Kelley’s driveway to pass.

Kelley contacted Stringer and told him that he planned to move the fence to the west to allow the passage of his driveway. Stringer objected and Kelley responded by cutting the fence. Stringer replaced the fence in its former place.

Kelley then brought this action to have the boundary fixed and also demanded damages, including attorney’s fees, for trespass. Stringer answered pleading acquisitive prescription and reconvened for damages.

The district court appointed Albert D. Hulett, Jr., a registered land surveyor, to survey the disputed boundary. Hulett conducted his survey and the case was tried.

ISSUE # 1 — Acquisitive Prescription

The appellant pleaded the acquisitive prescription of thirty years provided by LSA-C.C. art. 794. Though he found the fence to be more than thirty years old the trial judge rejected Stringer’s plea of acquisitive prescription because he found that the fence had not been intended to serve as the boundary.

To prevail on the issue of acquisitive prescription Stringer must show that he and his ancestors in title have possessed as owners for thirty years without interruption within visible bounds. LSA-C.C. art. 794.

The trial judge found that the northern portion of the fence had been constructed by Kelley’s ancestors in title. The plaintiff only had one witness who testified that he knew of his own knowledge that the fence was first placed along the northern boundary in 1945. The defendant had numerous witnesses that were familiar with the fence in the 1920s, 1930s and early 1940s, all of whom stated that the fence had been there long before 1945. These plaintiff’s witnesses all had either lived upon the property or very near it. Two of the witnesses had farmed the property as share croppers in the 1930s. Two of the witnesses had cut timber from the property in the 1930s and early 1940s. All of these witnesses testified the fence as it exists today is in the same location where it existed long before 1945. For these reasons the trial judge’s fact determination that the fence was first constructed by Kelley’s ancestor in title in 1945 is probably clearly wrong but we do not find it necessary to make this determination because defendant has clearly acquired the property by acquisitive prescription whether the fence was placed there in the 1920s as contended by the defendant or in 1945 as contended by by the plaintiff.

The trial judge apparently based his conclusion that the fence was not intended to serve as the boundary on testimony by plaintiff that his ancestors in title purposely built the fence back from the property line.

Though the record supports the conclusion that Kelley’s ancestors in title did not intend the fence to serve as the boundary between the two tracts, their intent is irrelevant to the issue presented for decision.

That a party does not intend a fence to serve as a boundary is immaterial and does not affect the rights accruing to the possessor. Scott v. Blanton, 115 So.2d 658 (La.App. 2d Cir.1959); Snellings v. Lutz, 219 So.2d 781 (La.App. 2d Cir.1969), writ refused 253 La. 1090, 221 So.2d 520 (1969); De Bakey v. Prater, 147 So. 734 (La.App. 1st Cir.1933); Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957). Thus, the intention of Kelley’s ancestors in title is immaterial.

Our inquiry is whether Stringer and his ancestors in title have possessed as owners for thirty years without interruption within visible bounds.

The fence fulfills the requirement of a visible boundary. The record shows that for far more than thirty years Stringer and his ancestors in title have used the land up to the fence for row crop farming, pasturing cattle and cutting timber. Further, these activities went undisturbed until the present dispute developed. Kelley and his ancestors in title never used any of the land west of the fence.

However, plaintiff contends that despite all the activities of Stringer and his ancestors in title the requirements of Article 794 are not met because they did not possess the disputed area as owners. In support of this contention plaintiff points to the fact that after he told Stringer of his intention to move the fence Stringer told him to have a survey done. This, it is argued, shows Stringer’s uncertainty as to the location of the boundary and his lack of intent to possess as owner. We disagree.

A reading of Stringer’s testimony shows that appellant considers the fence to be the boundary and has possessed the land to the fence as owner. Stringer believes an accurate survey would show the fence to be the boundary. Stringer believes the Hulett survey to be in error because of its failure to conform with the fence. It appears that Stringer suggested a survey only because he thought it would satisfy Kelley that the fence was correctly placed.

The fact of possession is presumed to be as owner unless it is shown to have begun in the name of and for another. LSA-C.C. art. 3488; Dunn v. Bayonne, 197 So. 284 (La.App. 2d Cir.1940); Frost Lumber Industries, Inc. v. Harrison, 215 La. 767, 41 So.2d 674 (1949); Humble v. Dewey, 215 So.2d 378 (La.App. 3d Cir.1968); Levy v. Germania Plantation, Inc., 395 So.2d 366 (La.App. 1st Cir.1981); See also Jones v. Skannal, 368 So.2d 774 (La.App. 2d Cir.1979). Appellant is entitled to this presumption which has not been rebutted.

Stringer has proved that he and his ancestors in title have possessed as owners the property up to the fence for more than thirty years without interruption. The trial judge erred in not sustaining defendant’s plea of acquisitive prescription and fixing the boundary according to the limits of possession.

ISSUE # 2—Damages

Both parties contend they are entitled to damages by reason oí the trespasses committed by the other. Plaintiff seeks attorney’s fees and damages for trespass and the loss of use of property. Defendant reconvened for attorney’s fees and damages for the invasion of his property rights, destruction of the fence, the cost of restoration of the property and mental anguish and suffering.

Trespass is the unlawful physical invasion of the property or possession of another. Patin v. Stockstill, 315 So.2d 868 (La.App. 1st Cir.1975).

Any trespass in this matter must stem from activities on the disputed area. As we have found that Stringer is the owner of the property to the fence, including the disputed area, his activities on the disputed area do not constitute any trespass upon Kelley.

Kelley only cut the barbed wire fence at one or two places and removed only one post, all in a very limited portion of the fence. Stringer offered no evidence as to the cost of material and labor required to repair the fence. The damage that Kelley did to the fence was very slight.

The record contains no proof that Kelley went on the lands of Stringer or committed any acts which damaged Stringer’s land. The record contains no proof of any of Stringer’s asserted damages other than his mental anguish and suffering. It appears from the record that the extent of Stringer’s mental anguish and suffering was merely a state of minor annoyance for which an award of damages would be inappropriate.

Stringer has not established that Kelley owes him any damages for trespass.

We also note that though both parties demanded attorney’s fees, they are not recoverable in cases such as this. Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976); Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978); Inzer v. Hollis, 339 So.2d 522 (La.App. 2d Cir.1976), writ refused 341 So.2d 1124 (La.1977); Gewin v. Willamette Industries, Inc., 406 So.2d 730 (La.App. 3d Cir.1981).

ISSUE # 3 — Surveyor’s Fee

Stringer contends that the trial judge fixed the court appointed surveyor’s fee at an excessive amount. Kelley agrees that the fee was fixed at an excessive amount but contends that the court should have awarded an additional amount to the surveyor as an expert witness fee for his testimony. Hulett submitted a bill for $2,560.00 for the survey and requested an additional expert witness fee of $200.00 for his testimony on Kelley’s behalf. The trial judge fixed the surveyor’s fee at $2,255.00 and taxed it as an item of costs.

Fixing of the surveyor’s fee is largely within the discretion of the trial judge. Sessum v. Hemperley, 83 So.2d 546 (La.App. 2d Cir.1955), reversed on other grounds 233 La. 444, 96 So.2d 832 (1957). An award of expert witness fees lies within the discretion of the trial judge and will not be altered absent a showing of an abuse of discretion. Smith v. Travelers Indem. Co. of Rhode Island, 374 So.2d 708 (La.App. 1st Cir.1979). The trial judge is not required to set the fee at the amount charged by the expert. Veuleman v. Sims, 382 So.2d 245 (La.App. 3d Cir.1980).

The survey made by Hulett took several days and was carefully executed. There were three and sometimes four men in the survey crew. Hulett’s testimony at trial was not lengthy and much of it dealt with the procedures used in his survey. The fee of $2,255.00 fixed by the judge and assessed as costs is sufficient to compensate the surveyor for the survey and his testimony. There was no abuse of discretion by the trial judge.

ISSUE # 4 — Costs

The final issue before us is which party should bear the substantial costs of this proceeding. Both parties bitterly complain of the joint assessment of costs made by the trial judge. Each contends that the other should bear the costs of this matter as the unsuccessful party.

When a boundary is judicially fixed the costs are to be taxed in accord with the provisions of the Code of Civil Procedure. LSA-C.C. art. 790. The Code of Civil Procedure provides that costs may be taxed in accord with equity. C.C.P. art. 1920.

This action was precipitated by Kelley’s conduct. He commenced it solely for his own ends and benefit. From the record it appears that Kelley never made any real effort to settle this matter without legal proceedings. Instead, Kelley uncompromisingly announced his intent to move the fence onto what Stringer properly considered his own property. Kelley initiated these proceedings. If Kelley had made an inquiry of the people in the area who had lived there during the preceding thirty years, he would probably have learned that Stringer and his family, who were his ancestors in title, had continually possessed the disputed area up to the fence for more than thirty years. We note that Kelley placed no witness on the stand who contradicted defendant’s extensive evidence of possession for more than thirty years.

All of Kelley’s demands have been rejected by us and we have recognized Stringer’s claim of acquisitive prescription. In light of our resolution of the merits of this case and Kelley’s role in fermenting this controversy, equity demands that he bear the entire costs of this proceeding.

For the foregoing reasons the judgment of the district court is amended to fix the boundary along the fence shown on the survey of Albert D. Hulett, Jr., filed in this suit, dated November 12,1980, and to assess all costs against the plaintiff, John M. Kelley.

As amended the judgment is affirmed.

      . Stringer contends that the trial judge erred in:
      1) fixing the boundary along the “ideal” line;
      2) failing to sustain his plea of acquisitive prescription;
      3) rejecting his demands for damages;
      4) assessing one-half of the costs against him; and
      5)assessing an excessive amount for the surveyor’s fee as costs.
      Kelley contends the trial judge erred in:
      1) not awarding an expert witness fee to the surveyor for his testimony;
      2) assessing one-half of the costs against him; and
      3) rejecting his demands for damages.

      . C.C. art. 794 — “When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.”

      . C.C. art. 3488—“As to the fact itself of possession, a person is presumed to have possessed as master and owner, unless it appears that the possession began in the name of and for another.”

      . Any interest which Stringer might have had in the fence through LSA-C.C. art. 685 would not avail him of any recovery because of the lack of proof of damages.


author: GULOTTA, Judge.

text:
    Doreen Weeser Mullen, Wife of Robert W. MULLEN v. Robert W. MULLEN.
    No. 13188.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Edmund T. Wegener, Jr., Gauche, Weg-ener & Oster, A Professional Law Corporation, New Orleans, for plaintiff-appellant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

Plaintiff-wife, appealing, claims the trial judge erred in awarding accumulated past-due alimony pendente lite from the date of the judgment fixing the alimony instead of from the filing of the petition. Plaintiff further seeks an increase in the attorney’s fee in accordance with LSA-R.S. 9:305.

The initial judgment awarding alimony was silent concerning the date of commencement of alimony payments. The Second Circuit in such an instance concluded the trial judge had intended the rendition date as the commencement date. Cumpton v. Cumpton, 283 So.2d 846 (La. App. 2nd Cir.1973). See also Bienvenue v. Bienvenue, 192 La. 395, 188 So. 41 (1939).

The Cumpton court, supra, held that the determination of the commencement date for payment of alimony pendente lite was within the discretion of the trial judge. In so holding, the Second Circuit in Cumpton refused to follow the rule implied in Stansbury v. Stansbury, 258 So.2d 170 (La. App. 1st Cir.1972) that a trial judge has no discretion in setting the commencement date but that payments are owed from date of judicial demand.

We are in agreement with our brothers on the Second Circuit. The better rule, we believe, is that the trial judge is vested with discretion. See Richard v. Richard, 359 So.2d 696 (La.App. 1st Cir.1978); Quinn v. Quinn, 412 So.2d 649 (La.App. 2nd Cir.1982). Moreover, in Cotton v. Wright, 193 La. 520, 190 So. 665 (1939), the Supreme Court noted (in passing) that the “correct method” in calculating accrued alimony on a rule for arrearages is from the date of the judgment fixing the alimony.

Applying the rule to our case, we cannot say that there was abuse of the trial court’s discretion in not making commencement retroactive to the filing of the petition.

Finally, because we find no error and because plaintiff-appellant has not prevailed in this appeal, we hold no entitlement to additional attorney’s fees. See LSA-R.S. 9:305.

Having so concluded, we affirm.

AFFIRM.

      . Plaintiff filed the petition seeking alimony pendente lite on July 2, 1981. The trial court rendered judgment on August 3, 1981, ordering the husband to pay alimony pendente lite in the amount of $100.00 per week. The wife subsequently filed a rule for arrearages, and on September 11, 1981, the court awarded past due alimony from the date of the August 3, 1981 judgment, instead of the filing of the wife’s initial petition for alimony.

      . LSA-R.S. 9:305 provides:
      “When the court renders judgment in an action to make past due alimony or child support executory, or in an action to enforce child visitation rights, except for good cause, the court shall award attorney fees and costs to the prevailing party.”

      .Strong argument might be made that plaintiff’s appeal is untimely because the appeal should have been taken from the original judgment awarding alimony rather than from the judgment awarding accumulated past-due alimony. Nonetheless, we prefer to consider the appeal on its merits.

      . In written reasons for the August 3, 1981 judgment awarding $100.00 per week alimony to the wife, the trial judge noted that the wife had retained $4,700.00 of the parties $6,200.00 savings account, was living at her parents’ home, and had been gainfully employed during the eight month period of separation, although she was not employed at the time of the rule. The alimony award represented one-third of the husband’s net weekly pay.


text:
    STATE of Louisiana In the Interest of the Minor Russell A. SIMOLKE a/k/a Russell A. Simolke Navis.
    No. 13342.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      William C. Cox, Staff Atty., State of La., Dept, of Health and Human Resources, New Orleans, for appellee. ■
    Patricia Vincent, New Orleans Legal Assistance Corp., New Orleans, for appellant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

The curator ad hoc for the minor appeals from a March 17, 1982 judgment transferring the “care” of the five-year-old child from his foster parents to his natural parents with “custody” to remain in the Department of Health and Human Resources. We affirm.

The curator contends the transfer of “custody” breaks the emotional bond the child had developed with his foster parents and is therefore against his best interest. We disagree.

Russell “Rusty” Simolke Navis, the natural child of Susan Netto and Craig “Tony” Navis was placed in temporary custody of the Louisiana Department of Welfare on February 7, 1977. He was four months of age at that time. Placement was made by the department with foster parents, Mr. and Mrs. Walter G’Sell.

On April 29, 1980, the court granted the natural mother visitation rights with Rusty away from the foster parents’ home.

On a rule to terminate permanent custody invoked by the Department of Health and Human Resources, the trial judge, after hearing the testimony of a psychologist, psychiatrist and a social worker, on March 17,1982 ordered a transfer of “care” to the natural parents. This is the judgment on appeal.

In this judgment, the trial judge continued custody of the child in the care of the Department of Health and Human Resources for the purpose of supervision and necessary therapy. The foster parents were to maintain care of the child until June 12,1982, subject to weekend visitation rights of the natural parents. On June 12, 1982, care of Rusty was to be transferred to the natural parents, subject to monthly visitation by the foster parents. The court further ordered all parties,' including the child, to undergo psychiatric therapy. It was further ordered that “custody and possible final determination” in the matter be held in April, 1983 on motion of the District Attorney’s office.

At the transfer hearing, Dr. Allen Klein, a clinical psychologist, testified the psychological bond between Rusty and his foster mother was unusually close to the extent of generating significant emotional adjustment problems for the child. He described this bond as abnormal and “pathological” and testified the foster mother’s “style of parenting” had made the child “extremely dependent upon her.” This witness felt the ideal situation in Rusty’s best interest would be to maintain a bond with his natural mother, yet maintain a tie with his foster parents. Although Dr. Klein felt an “abrupt” transfer of custody to the natural parents would be detrimental to Rusty, he felt that a planned and deliberate transfer would alleviate the disruption. In his opinion, a full and complete transition of returning the child to his natural parents should take 12-18 months.

After psychologically evaluating all four “parents”, Dr. Klein was of the opinion that both sets of parents had the ability to care for the child. He would question, however, the award of sole custody to Mr. Navis, the natural father, who he felt did not demonstrate good judgment in critical situations. Dr. Klein found the natural mother, like the foster parents, to be “well-oriented in her mental status.”

The court also had before it a June 29, 1981 letter from Dr. C.A. Cowardin, a psychiatrist, who thought that the best interest of the child would be served by allowing the relationship with his foster parents to be permanent and recommended that the situation continue. This psychiatrist realized this directly conflicted with the rights of the parents, and proposed the two sets of “parents” attempt to work at some “creative legal solution” that would allow the child permanence in the foster home while assuring the biological parents of a continuing contact and relationship with the child.

A clinical social worker’s report of September 28, 1981, concerning the natural parents and Rusty, stated the “treatment goals” of counseling administered to the natural parents at their parish mental health clinic “has basically been met.” Although the social worker acknowledged the family had not “resolved all the outstanding problems”, she felt the issue of child abuse was “resolved” and there was “no indication of family violence” or “any unhealthy parenting problems.” From observation at a family session, this social worker further noted that Rusty seemed “at ease with his parents and the interaction seemed spontaneous and natural.” She also indicated the natural mother “has integrated many of the parenting techniques taught to her” in treatment. The natural father, however, was found to have an “explosive personality with mild impairment.”

Well established is the rule that in custody cases the sole criterion is the best interest of the child, and the trial court’s judgment will not be overturned absent a clear showing of an abuse of discretion. We are not unmindful also that the rights of natural parents are preferred to those of a non-parent and that the care of the State is not a substitute for the love and affection of natural parents.

Applying these guidelines, we find no abuse of the trial court’s discretion in transferring the “care” of the child to his natural parents under the conditions as set forth in the March 17,1982 judgment. The transfer from foster care includes protective measures not inconsistent with the expert testimony in this case and is designed to prevent an abrupt transition with the intent to reduce possible traumatic effect on the child. The measures taken by the trial judge clearly reflect his concern for the best interests of the child and we find no reason to disturb his conclusions.

Finally, we distinguish Johnston v. McCullough, 410 So.2d 1105 (La.1982) relied on by the curator in this case. Although the Johnston case is similar to the instant case insofar as the time the child had been living with one parent before the transfer of custody to the other (7 years in Johnston and 5 years in our case), nonetheless, the dispute in Johnston was between the natural mother and father of the 13 year old child. The dispute in our case is between the natural parents on the one hand and foster parents on the other.

Because we find no abuse of the trial court’s discretion to transfer the “care” of the minor from the foster parents to the natural parents, we affirm the judgment of the trial court.

AFFIRM.

      . A half-brother of Rusty, Jonathan Simolke, was placed in the care of his natural grandparents in 1977 after being subjected to physical abuse by Craig Navis. Jonathan is the child of Susan Netto and Johnny M. Simolke. In April, 1978 he was placed in “permanent” custody of his natural father.

        . Bordelon v. Bordelon, 390 So.2d 1325 (La. 1980); Ohman v. Ohman, 405 So.2d 883 (La. App. 4th Cir.1981); Fouchi v. Fouchi, 391 So.2d 1352 (La.App. 4th Cir.1980).

      . Theriot v. Huval, 413 So.2d 337 (La.App. 3rd Cir.1982); Ferguson v. Ferguson, 398 So.2d 1238 (La.App. 4th Cir.1981).

      . Wood v. Beard, 290 So.2d 675 (La.1974).

      . State in Interest of Driscoll, 410 So.2d 255 (La.App. 4th Cir.1982).


text:
    Franklin E. WILLIAMS v. Joshua GRIFFIN, Sr., Union Carbide Corporation and Kemper Insurance Company.
    No. 13252.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Writ Denied Dec. 20,1982.
    Clark A. Richard, Edward R. Drury, New Orleans, for plaintiff.
    Dominic J. Gianna, Hammett, Leake & Hammett, New Orleans, for defendant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

In this truck-automobile accident case, Franklin E. Williams appeals the dismissal of his damage suit on a jury finding that the defendant driver, Joshua Griffin, Sr., was not negligent. We affirm.

The unwitnessed accident occurred at approximately 2:30 a.m. on December 13, 1974, at the intersection of Chef Menteur Highway and Lurline Street in New Orleans. At the scene, Chef Menteur is a four-lane divided highway with two eastbound lanes, each 12 ft. wide, separated from the two westbound lanes by a median measuring 16 ft. in width. There is a 35 ft. wide break in the median where Lurline, which runs from a North-South direction, intersects with the northern edge of Chef Ment-eur, forming a “T” intersection.

Plaintiffs version of the accident is that he was traveling eastbound in the left lane of Chef Menteur and attempting to pass defendant’s “18-wheeler” tractor-trailer rig traveling eastbound in the right, shoulder lane when defendant, without warning, made a “sharp” left turn into the Lurline intersection across plaintiff’s path. Plaintiff slammed on his brakes but skidded unavoidably into the left side of defendant’s trailer at the rear tandem wheels.

Defendant’s version, on the other hand, is that before reaching the Lurline intersection to make a U-turn onto Chef Menteur he had moved his rig entirely into the left, median lane after activating his left turn signal and checking for following traffic. According to the defendant truck-driver, while moving “almost at a crawl”, the tractor portion of his rig had nearly reached the westbound lane of Chef Menteur, and his trailer was on an angle in the left lane when plaintiff’s vehicle struck him.

Plaintiff, appealing, contends the jury’s failure to find defendant negligent was manifestly erroneous and contrary to the preponderance of the evidence. Plaintiff points out that defendant’s uncorroborated version of the accident is “impossible” and “not worthy of belief” in light of the physical evidence.

Plaintiff further contends the trial judge erred in the jury instructions. Specifically, plaintiff argues the trial judge erroneously instructed the jury that a following motorist has a duty to exercise “extraordinary” rather than “reasonable” care. He further points out that the judge’s instruction concerning rear-end collisions was not applicable since plaintiff had failed to prove a rear-end collision occurred in this case.

DEFENDANT DRIVER’S NEGLIGENCE

We find no merit to plaintiff’s contention that the jury manifestly erred in finding the defendant guilty of negligence.

In support of his arguments that the defendant’s version of the accident was “incredible”, plaintiff relies on the testimony of an investigating police officer who arrived on the scene minutes after the impact. He found the “nose” of defendant’s tractor “at the edge of the neutral ground closer to Lurline Street” with the rear-end of the trailer straddling both eastbound lanes of Chef Menteur. Plaintiff’s overturned car was next to the cab of the tractor and facing south on Lurline with damage to its right front. The forward pair of the four rear tandem wheels on the left side of the defendant’s trailer had been struck.

The investigating officer found 40 ft. skid marks from plaintiff’s car in the left, eastbound lane of Chef Menteur. Although he did not note any skid marks from the trailer, he found a trailer tire “imprint” straddling both eastbound lanes. This witness estimated the point of impact to be slightly to the right of the center of the left eastbound lane. The defendant was given a ticket for making an improper left turn.

Plaintiff’s accident reconstruction expert, John F. Exnicious, Sr., testified that a tractor-trailer rig of defendant’s size could not make a U-turn on Chef Menteur highway at the Lurline opening in the median without leaving the travelled portion of the highway, since the minimum turning radius of the rig required an 80 ft. diameter to complete the turn. According to this expert, if the defendant driver had started his turn from the left lane as claimed, he would have completed the turn 28 ft. off the roadway in a westbound direction. Based on the skid marks and damage to the vehicles, this witness was of the opinion that the defendant had made a left turn from the right, shoulder lane of Chef Menteur across plaintiff’s path in the left lane.

In contrast to the above testimony, the defendant driver asserted that all of his trailer was completely in the left lane of Chef Menteur as he approached Lurline to make his U-turn. He stated that he had turned his steering wheel all the way to the left and the tractor portion of his rig was at a 35° angle from the trailer and had nearly reached the westbound lanes of Chef Ment-eur when he heard a “bump” and looked down to see plaintiff’s car turning over. Joshua Griffin testified that because he was carrying liquid oxygen he feared a fire might be ignited from plaintiff’s overturned vehicle. Because of this fear, following impact, he backed his rig several feet. According to Griffin, when he backed his rig the damaged wheel on his trailer left the tire imprint noted by the investigating police officer and his trailer came to rest across both eastbound lanes of Chef Ment-eur. Defendant Griffin, a tractor-trailer driver with 33 years experience, further testified that he had previously made U-turns from Chef Menteur at the Lurline intersection from the left lane and that normally the front of his tractor “takes up” some of the shoulder of the road in making the turn. He further testified that he had paid the ticket issued to him “to save time and money.”

We do not quarrel with the rule cited by plaintiff that conflicting, irreconcilable testimony must be examined in light of the surrounding physical facts. Nonetheless, when we consider the evidence in the instant case, we cannot say defendant’s version of the accident is inherently “incredible” or contrary to the evidence at the accident scene. If the jury believed defendant driver’s explanation that he moved his rig after impact to avoid possible fire, it undoubtedly placed less weight on the opinions of plaintiff’s witnesses concerning the point of impact and the circumstances of the accident.

Moreover, although plaintiff’s testimony that he skidded in a straight line in the left lane finds some support in the skid marks at the scene, his testimony differed from his earlier disposition where he had stated that he “put on his brakes and tried to avoid him [the defendant] to the left into the median.” Plaintiff’s deposition supports a point of impact farther to the left and is consistent with defendant’s version. The jury might well have placed more emphasis on plaintiff’s deposition than his testimony at trial.

Furthermore, plaintiff’s expert’s testimony concerning the turning radius of defendant’s vehicle does not destroy defendant’s version. This expert testified that a U-turn could be completed from the left lane of Chef Menteur, although the trailer would of necessity leave the travelled portion of the highway. This testimony was not inconsistent with the defendant’s prior experience of making the U-turn from the left lane using the westbound shoulder to complete the turn. Under the circumstances, we find no manifest error in the jury’s exoneration of the defendant driver from negligence.

Even assuming arguendo the jury erred, we point out that no reversal is warranted since there is ample evidence in the record to support a finding by this court that plaintiff was guilty of contributory negligence. It is undisputed the truck was traveling at 15 mph prior to the accident while plaintiff’s car was traveling at the 45 mph speed limit. The defendant driver testified that he had activated his left-turn signal and that it was impossible to turn the wheels of this large tractor-trailer rig “hard” or “spin it around” under the circumstances. Despite the duty of a left turning motorist to exercise caution, a reasonable conclusion might be made that plaintiff was negligent in failing to reduce his speed or that he was traveling at a greater speed than indicated by his testimony. Moreover, plaintiff admittedly had consumed two alcoholic drinks before the accident, and there were empty alcoholic beverage bottles in his car. Accordingly, there is evidence that plaintiff’s judgment or reflexes might have been impaired at the time of the accident.

JURY INSTRUCTION

We likewise reject plaintiff’s argument that improper instructions by the trial judge led to an erroneous verdict. The objectionable instructions were as follows:

“I charge you that a duty of a motorist to look includes the obligation of observing what one should or could observe by the exercise of ordinary kind of reasonable care. I charge you there’s a rule when a following vehicle collides with the rear of a leading vehicle. The following motorist has a duty to keep his vehicle under control and to respect the forward motorist’s announced intention to stop or turn.
The law imposes on a following motorist duty to exercise great care, sometimes referred to as extraordinary care.”

Plaintiff contends this erroneous and irrelevant instruction misled the jury to direct a judgment against plaintiff despite the overwhelming preponderance of this evidence.

Assuming, without holding, that the objectionable charge was erroneous, it is clear that the instruction complained of concerns plaintiff’s contributory negligence. The jury specifically answered, “No” to the first interrogatory: “Was the defendant, Joshua Griffin, Sr., the driver of the tractor-trailer owned by Union Carbide, guilty of negligence, and was his negligence the proximate cause of the accident?” Having exonerated Griffin from liability, the jury did not reach the second interrogatory concerning plaintiff’s contributory negligence, and thus had no reason to be influenced by the complained of instructions concerning rear-end collisions and the duty of a following motorist. Under these circumstances, the issue raised by plaintiff concerning the objectionable instructions takes on little or no importance, and there is no necessity to consider the merits of this complaint of error.

We note further that a proper instruction was given concerning the defendant-driver’s duty of care as a left-turning motorist, and that the complained-of instructions were given after instructions on contributory negligence and multiple proximate causes of injury. Under the circumstances, we do not conclude that the instructions in any way misled the jury in its deliberations concerning the defendant driver’s negligence. '

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . Defendant’s tractor has two front wheels and a rear pair of tandem axles with four wheels on each side. The trailer has a pair of tandem axles towards the rear with four wheels on each side, giving the rig a total of 18 wheels.

      . See Oppenheim v. Toye Bros. Yellow Cab Co., 7 So.2d 420 (La.App. Orleans, 1942); Hollins v. Jefferson Oil Company, 124 So.2d 629 (La.App. 3rd Cir.1960); Avis Rent-a-Car System, Inc. v. Berthiaume, 188 So.2d 105 (La.App. 1st Cir.1966).


author: SCHOTT, Judge.

text:
    Glenda HAMPTON, Individually and as the Natural Tutrix For the Minor, James HAMPTON v. ORLEANS PARISH SCHOOL BOARD.
    No. 13256.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Steven M. Koenig, Heisler & Wysocki, New Orleans, for plaintiff-appellant.
    Charles T. Curtis, Jr., Polack, Rosenberg, Rittenberg & Endom, New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

James Hampton, a 12-year old, was playing ball in his school yard during the noon recess when he was struck in the mouth by a rock thrown by another child. The trial court dismissed the suit filed by the boy’s mother against the School Board and she has appealed. The issue is whether the School Board is liable because part of the school yard was unpaved, allowing for the presence of rocks such as the one thrown at the boy.

At the time of the incident there were approximately 170 students playing in the yard with three school teachers on duty to supervise the children. The yard consisted of three parts, the center paved portion where James Hampton was playing basketball with other children, a fenced in portion for the kindergarten children, and an unpaved portion. James Hampton, his mother, and his grandmother described this unpaved area as containing rocks and glass. However, the school principal gave the following more accurate description of the school yard:

“A. Well, the condition of the school ground, the three areas that we have, the black top area is debris-clear. The dirt area from time to time will have rocks come up because that is a dirt area, but it is not debris-strewn. It’s relatively clear. There will be times when there will be rocks.
Q. Now I’m trying to figure out how these rocks could have gotten there. Do you know how these rocks got there? A. The rocks that are in the dirt area, the rocks come there probably from the land fill, just from being worn away, from constant use of the yard which is, I think, normal in any dirt area. There are no rocks generally on the black top area because that’s black topped.
Q. Would it be possible to make that school yard totally free of rocks?
A. No, I don’t think so. Not without black topping the whole area and preventing use of the muddy area.”

The trial court dismissed plaintiff’s petition assigning the following reasons:

“In a well supervised playground area of the Guste Elementary Public School, one child threw a rock and hit another child in the mouth, during the lunch recess. The Court concludes that to hold the School Board guilty and liable in these premises would be to make it the health insurer of all its students. The Court finds no negligence on the part of the Orleans Parish School Board in these premises, and dismisses the Plaintiffs’ lawsuit.”

The record supports the trial court’s conclusion that the playground area was well supervised. This incident happened so quickly that it was over before the teachers were aware of it despite the fact that they were right on the scene performing their duties. The law requires that such supervision be reasonable but there is no requirement that the supervisor have every child under constant scrutiny. Partin v. Vernon Parish School Board, 343 So.2d 417 (La.App. 3rd Cir.1977).

However, the principal issue of this appeal is whether the unpaved area from which, presumably, the thrown rock was taken constituted an unreasonably hazardous condition as discussed in Wilkinson v. Hartford Acc. & Indem. Co., 411 So.2d 22 (La.1982). The record supports the trial judge’s conclusion that it was not.

There was no dangerous or hazardous condition on the school grounds which caused plaintiffs injury. As the principal described this was nothing more than unpaved mud and dirt in which some small rocks had surfaced. The record does not support any inference that this was some sort of a rock pile which enticed children to use for ammunition. Furthermore, this is not the case where a child slipped and fell on a dangerous surface. On the contrary, this is a case where a child simply picked up a rock (perhaps in the unpaved area) and threw it at a fellow student.

Our decision is reinforced by an examination of the cases where the question of whether a condition was unreasonably hazardous was considered. While the courts held that a condition was hazardous in Wilkinson, supra, (a plate glass panel in a gymnasium near the entrance to the building and the basketball court); Lawrence v. Grant Parish School Board, 409 So.2d 1316 (La.App. 3rd Cir.1982) (a power saw in a classroom where inexperienced children were present); and Ardoin v. Evangeline Parish School Board, 376 So.2d 372 (La.App. 3rd Cir.1979), (a partially buried piece of concrete protruding from the ground near the base line of a softball diamond); the condition under consideration here, namely, a small unpaved dirt area containing a few indigenous rocks, was far from being unreasonably hazardous. In fact, it was even less so than the conditions considered in Capers v. Orleans Parish School Board, 365 So.2d 23 (La.App. 4th Cir.1978) (trash dumpster and bins in the school yard) and Partin v. Vernon Parish School Board, supra, (tree stump without jagged protrusions) which were held not to be unreasonably hazardous.

The judgment appealed from is affirmed.

AFFIRMED.


text:
    NATIONAL ROOFING AND SIDING COMPANY, INC. v. GULF COAST OIL COMPANY OF MISSISSIPPI, INC.
    No. 13220.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Stephen R. Doody, Sessions, Fishman, Ro-senson, Boisfontaine & Nathan, New Orleans, for plain tiff-appellant.
    Vincent Paciera, Jr., Lemle, Kelleher, Kohlmeyer, & Matthews, New Orleans, for defendant-appellee.
    Before REDMANN, C.J., and GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

This is a claim by plaintiff, National Roofing & Siding Co., Inc. (National) for the balance due on a roofing contract with defendant, Gulf Coast Oil Company of Mississippi, Inc. (Gulf Coast). Gulf Coast answered denying that National performed its contract in a workmanlike manner and reconvened for damages allegedly sustained because of coal tar spillage by National during the course of its work. The trial court awarded National on its. principal demand $1,861.80 and Gulf Coast on its recon-ventional demand $1,550.00. National has appealed. At issue are Gulf Coast’s entitlement to damages under the facts presented, National’s entitlement to attorney fees under the contract, and National’s entitlement to the actual balance on its contract even though this figure exceeds the amount it prayed for in its petition by $100.00.

The contract entered into on December 2, 1976, was for a roofing job on a shopping center owned by Gulf Coast. The work was performed in May, 1977, and the entire contract price of $41,198.00 was paid except for $1,961.80 which was retained by Gulf Coast to compensate it for damages resulting from spillage of coal tar on the parking lot of the center by National while its work was in progress. There is no dispute that the spillage occurred and in August, September and October, 1977, National attempted to remove the tar from the surface of the parking lot at an expense to itself of approximately $900.00. Despite these efforts there are spots and blotches of tar over an area of about four or five car parking spaces in the lot. According to National these spots were simply marks of discoloration left after the tar above the surface had been removed, but Gulf Coast offered some evidence that some of the spots were raised above the ground level and still got sticky when the temperature rose. Gulf Coast called a roofing contractor who testified that the tar spots could be removed at a cost of $1,751.50.

National contends that Gulf Coast suffered no damage because the parking lot contained numerous oil and grease stains and was discolored and worn so that the addition of the tar spots made no difference. It analogizes the problem to a painter’s drop cloth already used for several years and having numerous spots on its surface when someone spills additional paint on the drop cloth. National contends that the owner of the cloth would not be entitled to the cost of removing the new spots.

However, this analogy is not appropriate to this case. Gulf Coast’s president testified as to efforts expended in maintaining the parking lot and he felt that the parking lot’s appearance was diminished by the discoloration. Again, there was some evidence that some of the spots went beyond mere discoloration and were raised above the surface of the ground. While National did expend some efforts to clean the lot three to five months after the spillage occurred, including the use of pressure pumps on the surface, Gulf Coast’s roofer’s plan was more extensive in that he would take a week using three men on the project and utilizing acid to clean the surface. Undoubtedly, the trial court took these factors into consideration in concluding that the discoloration was more significant and consequential than the analogized paint spills on the painter’s used drop cloth.

The ultimate question is whether the trial judge abused his great discretion to award damages under LSA C.C. Art. 1934(3) and the cases interpreting this article such as Sun Finance Co., Inc. v. Briscoe, 384 So.2d 555 (La.App. 4th Cir.1980). Also pertinent are the principles that where there is a legal right to recovery but damages cannot be exactly estimated the trial court has reasonable discretion to assess such damages based on the facts and circumstances of the case, Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971), and if damages cannot be precisely and mathematically determined the trial judge is vested with reasonable discretion in making awards for damage. Lou-Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir.1973) writs refused, 290 So.2d 899 and 290 So.2d 901. See also Sahuque Realty Company v. Employers Com'l. U. Ins. Co. of Am., 327 So.2d 563 (La.App. 4th Cir.1976). In the application of these principles we cannot say that the trial judge abused his discretion in allowing Gulf Coast damages of $1,550.00.

The next question is whether National is entitled to attorney fees based on the contractual provisions of 25% attorney fees should it become necessary to place the contract in the hands of an attorney for collection. Under the circumstances of this case, where Gulf Coast withheld $1,961.80 out of the contract price of $41,198.00 and successfully proved its entitlement to an offset of $1,550.00 because of National’s breach of contract, National is not entitled to the attorney fees on the difference, because the amount of the offset was commensurate with that due on the contract. Furthermore, the principal reason National incurred attorney fees in the case was not for collection of the balance on the contract but rather for defense against Gulf Coast’s successful reconventional demand. As in U-Finish Homes, Inc. v. Lanzl, 202 So.2d 339 (La.App. 1st Cir.1967) National is not entitled to attorney fees.

Finally, National’s complaint that the trial court erred in awarding only $1,861.80 as pleaded in its petition rather than $1,961.80 which was the balance due on the contract is well founded. This was an obvious clerical error in the preparation of the petition and the trial court should have granted the relief to which National was entitled irrespective of the amount claimed in the petition. C.C.P. Art. 862. Wexler v. Martin, 367 So.2d 111 (La.App. 4th Cir.1979).

Accordingly, the judgment appealed from is affirmed but is amended only to the extent that there is judgment on the principal demand in favor of plaintiff, National Roofing & Siding Company, Inc., and against defendant, Gulf Coast Oil Company of Mississippi, Inc. in the amount of $1,961.80.

AFFIRMED AND AMENDED.


author: GARRISON, Judge.

text:
    Marlene JACOBS, Individually and as Natural Tutor of her minor child, Rhonda JACOBS v. NEW ORLEANS PUBLIC SERVICE, INC., and Julio Kaiser.
    No. 12524.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    James E. Shields, New Orleans, for plaintiffs-appellants.
    A.R. Christovich, Jr., New Orleans, for defendants-appellants.
    Before GARRISON, AUGUSTINE and WARD, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting to Marlene Jacobs damages in the amount of $100,000.00 plus damages in the amount of $2,500.00 to Edward Jacobs as tutor of the minor, Rhonda Jacobs, and damages in the amount of $10,-619.50 to Edward Jacobs. From that judgment, which we amend and affirm, both parties appeal.

A brief history of this case is in order. This court first examined the instant case in 1979. See Jacobs v. N.O.P.S.I., 368 So.2d 1204 (La.App. 4th Cir., 1979). At that time, defendants appealed from the trial court’s judgment of May, 1977, granting $100,-000.00 in damages for psychological disability to Marlene Jacobs on the ground that plaintiff did not plead any psychological disability on the part of Marlene Jacobs. The Fourth Circuit reduced the amount awarded to $7,500.00 on the ground of failure to plead. The Supreme Court granted writs, reversed the ruling of the Fourth Circuit and remanded to the Fourth Circuit, ruling that “A Petition which demands damages for loss of future wages and for future pain and suffering includes damages for psychological and psychoneurotic injuries.” 369 So.2d 1376 (La., 1979). The Fourth Circuit then remanded to the trial court, using the following language: “... Defendants had no occasion to expect and therefore to defend against a claim for psychological disability .... ” 374 So.2d 167, 168 (La.App. 4th Cir., 1979). An application for writs was again taken to the Supreme Court. The Supreme Court granted the writ, stating: “The order of the Court of Appeal is amended to permit either or both sides to adduce evidence in the trial court on remand.” 376 So.2d 321 (La., 1979). The case was remanded and resulted in the judgment described at the outset herein.

Plaintiffs-appellants appeal on the issue of “mitigation and/or minimization of damages.” In his reasons for judgment, the trial judge stated:

“The Court finds from the evidence that the plaintiff, Marlene Jacobs, has a psychological disability which was precipitated by the accident.
“This accident took place in November of 1974. The first trial took place in June of 1976.
“The Court finds that the disability of Mrs. Jacobs is permanent. The Court is very disturbed however that Mrs. Jacobs has not been treated since the trial in 1976. At the time of the trial in 1976, the Court was of the opinion that the injuries were not permanent, and that with treatment, Mrs. Jacobs could return to her employment. The Court concludes that the failure of Mrs. Jacobs to seek medical treatment caused her condition to become permanent.
“For these reasons, the Court will issue a judgment fixing the damages in the same amount as in the original judgment.”

Defendant-appellant argues that no evidence was adduced at the second trial to support a $100,000.00 judgment and that likewise the judgment in favor of Mrs. Jacobs for medical expenses is incorrect and should also be reduced.

As defendant’s argument is the “threshold” argument, it shall be addressed first. Dr. Sanders testified both at the first trial and at the second that Mrs. Jacobs suffered from an anxiety neurosis and possible conversion reaction. He further testified that at the time of the first trial his prognosis was that she would probably remain in her non-functional state and that she was incapable of functioning, much less working, as a teacher. Dr. Escalada, who first saw Mrs. Jacobs in September of 1979, agreed with Dr. Sanders’ diagnosis and prognosis. Both doctors related Mrs. Jacobs’ injury to the accident at issue.

Defendant places considerable emphasis on three points:

1. That Mrs. Jacobs continued working for two years from the date of the accident until the date of her leave of absence;
2. that Mrs. Jacobs had an unhappy childhood which may have predisposed her to emotional problems; and
3. that plaintiff and her husband have “a beautiful home with an indoor pool. Somehow, however, it was suggested that they nevertheless could not afford a doctor for psychiatric treatment.”

Turning to the first point, Dr. Sanders testified that Mrs. Jacobs was a high achiever with a strong will to succeed. He further testified that she felt disgraced by seeing a psychiatrist and that she pushed herself as hard as she could to continue her former life, finally succumbing to an inevitable collapse. In his opinion, she was on a continuing decline from the date of the accident and worked through that period through sheer force of will. We further note that Mrs. Jacobs was employed by the St. Bernard Parish School Board and that her daughter attended Arabi Park School in Chalmette, although the family lived in Orleans Parish. As long as Mrs. Jacobs continued teaching, the School Board would allow her daughter to remain at Arabi Park. This court does not believe that Mrs. Jacobs should be penalized for the extreme effort she made to continue her life; rather, she should be applauded for that effort. She has earned the respect of this court.

Turning to defendant’s second point of emphasis, we note that Dr. Sanders testified that many individuals have unhappy childhoods and later have lives that are perfectly normal. He further testified that, but for the accident, Mrs. Jacobs would not be suffering from anxiety neurosis. This court notes that the defendant “takes the plaintiff as he finds him.”

Defendant’s third point of emphasis also involves the argument asserted by plaintiff on appeal. Mr. Jacobs was 64 years old at the time of trial. He receives $785.00 per month from Social Security, including $385.00 per month which will terminate when Rhonda reaches age 18. Rhonda Jacobs was 17 years at the time of trial. Mr. Jacobs is a retired carpenter. He and his wife purchased the lot on which his home is built years ago for $7,000.00. He built the house in his spare time over a number of years. He had been working on the house long before the accident. The $785.00 per month is the sole family income since Mrs. Jacobs is no longer able to work. Dr. Sanders further testified that Mrs. Jacobs did not continue psychiatric treatment because the family was almost bankrupt.

Does a plaintiff’s duty to mitigate his damages include placing his family and his dependents under such economic stress as to result in bankruptcy or near bankruptcy for all members of the family? Is bankruptcy the price that a plaintiff must pay in order to recover for his damages? We think not. In Roy v. Robin, 173 So.2d 222 (La.App. 3rd Cir., 1965), the court stated:

“The tortfeasor has the burden of proving that damages should be minimized because of the injured person’s unreasonable failure to seek timely medical attention.” (emphasis added) At page 223.

In the instant appeal, we cannot say that Mrs. Jacobs’ actions were unreasonable in light of her family circumstances. Accordingly, the trial judge committed an error of law in finding that plaintiff failed to mitigate her damages.

Turning to the issue of quantum, we note that plaintiff argues that the trial judge failed to make an award for future lost wages. Mrs. Jacobs’ lost future wages, however, amount to $158,471.00. Accordingly, the trial judge erroneously failed to make an award for lost future earnings due to his erroneous ruling on mitigation of damages. In so doing, he clearly abused his discretion in the amount awarded and the judgment of the district court should be increased accordingly.

For the reasons discussed, the judgment of the district court is amended as follows and, as amended, is affirmed:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Marlene Jacobs, individually, and against the defendants, New Orleans Public Service, Inc., and Julio Kaiser, jointly, severally and in solido, in the full sum of TWO HUNDRED FIFTY-EIGHT THOUSAND FOUR HUNDRED SEVENTY-ONE AND NO/100 DOLLARS ($258,471.00), plus legal interest from date of judicial demand until paid, and for all costs of these proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Edward Jacobs, as natural tutor of the minor child, Rhonda Jacobs, and against the defendants, New Orleans Public Service, Inc., and Julio Kaiser, jointly, severally, and in solido, in the full sum of TWENTY-FIVE HUNDRED AND NO/100 DOLLARS ($2,500.00), plus legal interest from date of judicial demand until paid, and for all costs of these proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Edward Jacobs, individually, and against the defendants, New Orleans Public Service, Inc., and Julio Kaiser, jointly, severally, and in solido, in the sum of TEN THOUSAND SIX HUNDRED NINETEEN AND 50/100 DOLLARS ($10,619.50), plus legal interest from date of judicial demand until paid, and for all costs of these proceedings.

AMENDED AND AFFIRMED.

      . At the trial court hearing held on May 4, 1977, Melville Wolfson testified as an economic expert on behalf of the plaintiff. Using a work life expectancy of ZVh years, Wolfson subtracted out 13 years during which she would continue to be employed as a B.A. teacher at the lower pay scale, so that plaintiff would draw retirement for 24‘A years. He then took the present value retirement figure of $5,724.00, discounted at 5% to $96,000.00, subtracting from that the present value of the same sum over the next 13 years at 5% yield at present value of her retirement loss equal to $42,341.00.
      Turning to her salary loss, Wolfson determined that present value figured to be $116,-130.00. He used a base salary of $10,500.00 with a 3.1% annual increase and a discount rate of 5%. Accordingly, Wolfson testified that the present value of $116,130.00 for salary loss plus the present value of $42,341.00 for retirement loss yields a total present value of $158,471.00. (Supplemental Transcript, CA # 9446, p. 127 et seq.)