author: BOUTALL, Judge.

text:
    Louis M. WATTIGNEY, Jr. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 12186.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Rehearing Denied Jan. 21, 1982.
    Charles A. Verderame, Giraud, Cusimano & Verderame, New Orleans, for Louis M. Wattigney, Jr., plaintiff-appellee.
    Robert E. Leake, Jr., Hammett, Leake & Hammett, New Orleans, for Government Emp. Ins. Co., defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

Plaintiff, Louis M. Wattigney, Jr., was awarded $80,000.00 for damages suffered in an automobile collision. The defendant insurance carrier, Government Employees Insurance Company, appealed, contending that the uninsured motorists provisions contained in its policies limits its liability to a lower amount and that the quantum of damages incurred by the plaintiff should be reduced. We affirm.

There is no dispute regarding the accident. On the night of August 7, 1976, Wattigney, Jr., was a passenger in a car owned by his father, Wattigney, Sr. The car was being driven by the plaintiff’s friend, Frank Mule. While going southbound, a car going northbound swung out into their lane resulting in a headon collision causing injuries to the plaintiff and the driver. Wattigney, Jr., was returning to New Orleans from a Mr. Teenage, U.S.A., competition being held in El Dorado, Arkansas. At that contest, he placed second in his class and also won best overall pose.

Plaintiff sued Government Employees Insurance Company based on the accumulation of uninsured motorists limits contained in two policies. At the time of the accident, Wattigney, Sr., owned four vehicles all covered by GEICO. Policy No. 246 — 41—47 listed three cars on its declaration sheet. The effective dates of this policy were August 15, 1975, to August 15, 1976. The car involved in the accident was not listed in this policy but was listed on the declaration sheet of a policy bearing the number 246-41-47-1. The effective dates for that policy were November 6, 1975, to November 6, 1976. GEICO avers that it can list only three cars under one policy number because of its clerical procedures and that the additional “ — 1” on the policy number signifies that this second declaration sheet was only the second page of the original policy. Accordingly, GEICO contends that the fourth vehicle listed on the separate declaration sheet was actually in a companion policy and not a separate policy governed by its own provisions.

We disagree and believe that two separate policies existed with each having its own separate policy limitations. In this instance, Wattigney, Sr., owned three vehicles in July of 1975. He sought coverage through GEICO, which issued policy No. 246 — 41—47. The coverage extended by that policy was for liability limits of $50,000.00. However, Wattigney, Sr., executed a waiver on July 15, 1975, which set the limit for uninsured motorists coverage at $10,000.00 per vehicle. This waiver was made pursuant to R.S. 22:1406D(l)(a), wherein it states:

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this sub-section shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespectively of whether physically attached thereto.”

In November of 1975, some four months after the first policy was in force, Wattig-ney, Sr., purchased a fourth automobile. GEICO issued policy number 246 — 4147-1 with the policy period beginning on November 6,1975 to November 6,1976. The liability limits for this policy was also set at $50,000.00 but Wattigney, Sr., did not execute a waiver in order to lower his uninsured motorists coverage. The insurer contends that the original waiver is effective on this policy and that the accumulation of coverage amounts to a limit of $40,000.00.

We conclude that the two policies are separate for three reasons: it is physically separate for a newly acquired additional automobile; the policy dates and year are different; GEICO’s notice with the second policy (P-11) states that it is a new separate policy and a separate bill will be sent for each policy. Being a separate policy, the second policy does not fall within the exemptions of the statute afforded to a renewal or substitute policy. The failure of the insurer to obtain a waiver of the required uninsured motorist coverage requires the imposition of the bodily injury limits in accordance with the statute. We further point out that the insurer sent along with the new policy an explanation of UM coverage, including a waiver, which contains the following: “NOTE: Your policy will be issued to comply with Louisiana requirements if this form is NOT returned.”

As a result, the coverage under the uninsured motorists provisions of the new policy was $50,000.00. The trial judge then correctly determined that the total amount of uninsured motorists coverage was $80,-000.00 in accordance with the concept of “stacking” as set out in Seaton v. Kelly, 339 So.2d 731 (La.1976); Graham v. American Casualty Co. of Reading, 261 La. 85, 259 So.2d 22 (1972); and Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972). In Seaton, Justice Dixon stated:

“... that if a plaintiff is an insured under two or more policies, pays premiums or has premiums paid for his benefit for two or more different coverages, he can cumulate the coverages.”

The second question in the matter is in regard to the amount of damages that the plaintiff suffered. The trial judge determined that the plaintiff sustained injuries and damages far in excess of the amount of GEICO’s liability. While we disagree with that determination to the extent that we consider the award generous, we cannot say it is excessive or manifestly erroneous.

When plaintiff was injured on August 7, 1976, he was taken to a local hospital where he was treated by Dr. C. E. Tommey, a general surgeon. Dr. Tommey concluded that the plaintiff suffered a large, rugged laceration in the middle of the forehead, extending all the way across the left forehead to the hairline as well as small superficial lacerations on the lower portion of the face and hands. Plaintiff also suffered a severe contusion of the chest. His wounds were cleaned and stitched and he received some drugs for pain and a tetanus booster for any possible infection.

Several days after the plaintiff returned home, he went to see Dr. William Terral, his family doctor. Dr. Terral redressed the wound several times over the next couple of weeks and finally removed the sutures on August 21. Later on October 2, Dr. Terral made a small incision and drained the ab-cess that had formed on his forehead because of an infection that had set in.

In November of 1976, plaintiff saw Dr. Kenneth Dieffenbach, a plastic surgeon, because of problems relating to the laceration on his forehead. Dr. Dieffenbach performed surgery on November 12, and concluded that the plaintiff would probably never recover full sensation in that area. He also believed that the plaintiff should not return to body building for at least one year and only then if the plaintiff should have no complaints of headaches or visual disturbances.

The plaintiff later went to see Dr. Albert Fant, a psychiatrist, in August and September of 1977. Dr. Fant believed that the plaintiff suffered from a depression which was a reaction to the accident. The plaintiff also saw Dr. William Sorum, a psychiatrist, in February of 1978, and he concluded that the plaintiff was still depressed because of the accident. The plaintiff later testified at trial that he was seriously considering making body-building a profession and eventually opening up a health spa; but, as a result of the accident, he felt that this was impossible. Drs. Fant and Sorum concluded that the change in his plans of going into body building as a profession also contributed to his depression. However, both doctors believed that the plaintiff would be cured within a short period of time.

We have outlined the medical course of plaintiff’s injuries to demonstrate that the direct injuries and resulting disabilities are not by themselves the dominant factors upon which the award of $80,000.00 was based. The award does not include medical bills, which had been previously paid by defendant. The reasons for judgment given by the trial judge indicates that he must have granted a considerable sum because the injuries interfered and prevented the plaintiff from continuing his body building career.

As noted, plaintiff was injured while returning from a competition in the Mr. Teenage, U.S.A., contest. He was eighteen years old and had engaged in body building for several years prior to the contest, which was nationwide in scope and a highly coveted prize in the body building field. He was adjudged to be in first place in the “best pose” catagory of the contest and was awarded second place overall. Plaintiff had intended to continue his program and compete again the next year, the last year for which he would be eligible, with the hope of taking first place and being named Mr. Teenage, U.S.A. Based upon the achievements that he had already accomplished, together with whatever titles he may acquire in the future, he had hoped to start a career in body building. While there is no proof in this record as to the financial benefits to be derived from winning such a title, and it is speculative to say that he would have made more money in such a profession than he is presently making in his employment as a tugboat captain, nevertheless we are confronted with a young man who had the means of achieving prominence in this field, and whose efforts of several years of hard work plus his dreams of the future have been devalued and curtailed by this automobile collision.

The course of the treatment was not smooth, and plaintiff had problems with the healing of his lacerations that caused him considerable pain. In particular, the gash on his forehead had caused significant amount of tissue loss and because of its poor healing propensity, had to be revised. That wound had severed the supra orbital nerve and caused a numbness to the left side of plaintiff’s head. This was further described as a feeling that the area was heavy or dead and not alive, and caused discomfort in the nature of “pins and needles”. Because of these conditions, plaintiff was advised not to lift weights, and he began to suffer from depression. Plaintiff had been described by Dr. Terral, who had treated him since he was a baby, as a person who did not have any emotional or psychological problems but was always considered to be a stable young man. Because of the many problems presented by his injuries, the plaintiff became depressed, which forever dissuaded him from attempting any body building.

It is extremely difficult to place a precise valuation upon the damages suffered in a case like this. Louisiana Civil Code Article 1934(3) grants the judge much discretion in the assessment of damages in such cases. We are disposed to grant to the plaintiff in this case a higher amount of award than would ordinarily be granted to a person who was simply prevented from pursuing a hobby or some recreational pursuit. Bearing in mind that this individual worked very hard for several years at body building, that he had achieved a high plateau of recognition in this field, and that he was prevented from pursuing his endeavors further, we cannot say that the trial judge erred in making the award that he did. For us to reduce the amount of the award would simply constitute the substitution of our opinion for that of the trial judge and would be in violation of the principles set out in the cases of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) and Reck v. Stevens, 373 So.2d 498 (La.1979).

Accordingly, we affirm the judgment appealed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Henry J. BROCK v. ST. JAMES PARISH COUNCIL, Paul K. Keller, Parish President Gaston Bourgeois, Tax Collector For St. James Parish and St. James Parish School Board.
    No. 5-149.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Rehearing Denied Jan. 21, 1982.

      John Peytavin, Asst. Dist. Atty., Lutcher, J. Hugh Martin, Foley, Judell, Beck, Bewley & Martin, New Orleans, for St. James Parish Council, Paul K. Keller, Parish President, Gaston Bourgeois, Tax Collector for St. James Parish School Board appellants.
    Richard J. Brazan, Jr., Vacherie, for Henry J. Brock appellee.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   BOUTALL, Judge.

This appeal is the sequel to the prior case of Brock v. St. James Parish Council, 400 So.2d 745 (La.App. 4th Circuit 1981). That case was an election contest suit in which this same plaintiff, Henry J. Brock, challenged the outcome of a sales tax election in St. James Parish and sought injunctive relief against the imposition of the proposed sales tax. After our decision in that case, the St. James Parish Council passed an emergency ordinance ordaining that the 1% sales tax to be imposed- by the election was not to be imposed parishwide, that is, it would not be levied in the incorporated municipalities of Lutcher and Gramercy, and ordering the abatement of the tax within the Lutcher-Gramercy General Improvement District only. Shortly thereafter, Brock filed the present suit against the St. James Parish Council and certain of its officials involved with the collection of the sales tax seeking to have the ordinance declared null and ordering the imposition of the sales tax parishwide. The trial court rendered a judgment generally favorable to Brock and the St. James Parish Council and other defendants have appealed.

Underlying most of the issues presented in the second case on this appeal is the interpretation and effect of our prior decision and the Supreme Court denial of writs. Appellant urges that the doctrine of res judicata applies to this case, the issues having been settled in the first case. We refer to Civil Code Article 3556(31) which defines a thing adjudged, and to Article 2286 which states the essential elements necessary to the authority of the thing adjudged. Comparing these cases it is clearly demonstrable that the elements necessary to maintain a plea of res judicata are lacking here. The first suit was a contest of an election imposing a sales tax; this suit has for its purpose a declaration of the authority which flows from that election and is concerned with an ordinance passed thereafter. Additionally, while the plaintiff is the same and some of the defendants are the same, there were other defendants in the original suit who are not in this suit, and the relationship of the defendants to the basic cause of action is different.

It is these essential differences in these two suits that cause some of the confusion concerning the imposition of the sales tax. The first suit was an election contest suit and the decree rendered by the trial judge in that case was as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the application for injunctive relief requested herein be and the same is hereby denied and rejected and plaintiff’s action dismissed with prejudice at plaintiff’s costs.”

That judgment was based upon two main findings, 1) that the exception of no cause of action which was leveled at the conduct of the election itself was sustained, and 2) that the imposition of the tax was not constitutionally prohibited. The reasons for judgment given by the trial judge are not a portion of the decree which is stated separately at the end of the document entitled “Judgment,” but which contains both the reasons for judgment and the decree. In his reasons as to the constitutionality of the tax, the trial judge answered the arguments and issues as they were presented by the attorneys. However, although the matter was argued to us in somewhat the same way, we noted that the proposition actually voted upon was different from the political objectives proposed by those seeking the passage of the tax election. As we pointed out in our opinion at 400 So.2d 747: “However, we see the matter as presenting a different resolution. The proposition put before the people is as follows:” and thereafter we quoted the proposition. Again, at page 749 we stated:

“Accordingly, we conclude that the proposition presented to the voters imposing a 1% sales tax within the parish of St. James is legal, and that the tax applies to the entire parish. For these reasons, it becomes unnecessary to consider the constitutional issues considered by the trial court and argued before us on appeal relative to unequal imposition of the tax and unequal distribution thereof.”

As a result, we simply affirmed the decree of the trial judge dismissing the plaintiff’s suit, which we consider to be the correct result.

In considering the issues on the present appeal, we note that the parties stipulated that this case was to be a declaratory judgment proceeding and that the question presented to the court for declaration was as follows:

“First, (Does) the judgment granted in the case entitled Henry J. Brock versus St. James Parish Council, Et al No. 5-56, Court of Appeals, Fourth Circuit, State of Louisiana permit the adoption of an ordinance by the St. James Parish Council to levy and collect the one percent sales and use tax approved by the voters on April 4, 1981, outside of the corporate limits of the sales tax district for the Towns of Lutcher and Gramercy, and effective in the rural areas of said parish only, or does said judgment require that said tax be levied and collected throughout the Parish of St. James?”

We believe the answer to that question has been properly decided by the trial judge, and we adopt his reasons for judgment as quoted:

“LEGALITY OF THE ABATEMENT
At the heart of the parties’ disagreement is the question of the force to be given to the judgment of the Fourth Circuit in Brock No. 1. Plaintiff understands the appellate opinion in Brock No. 1 to be a definitive adjudication that the tax must be levied and collected parish-wide. Although plaintiff uses inconsistent language in his petition — avering in Paragraph 3 that the appellate court stated that the tax ‘applied to the entire parish,’ but stating in Paragraph D of his prayer that the Court was merely ‘indicating that the tax is to be applied par-ishwide’ — the Court understands the gist of his contention to be that the Fourth Circuit, in Brock No. 1, ruled that the one cent sales and use tax must be collected throughout the parish. The defendants urge an entirely different reading of the Fourth Circuit’s decision, arguing that it was limited to an approval by that appellate court of the Council’s levy and collection of the tax in the five rural districts and a grant of permission also to extend the tax to the municipal areas.
The Court finds some merit in each argument, but accepts neither one completely. The ruling of the Fourth Circuit does not, as this Court understands it, order the Council to levy and collect the tax in every district, or in any district. It does, however, clearly state that the tax may be levied and collected parishwide, and that Article VI, Section 29 of the Louisiana Constitution is no bar to such action. The appellate court’s opinion is couched in permissive and not mandatory language, and to this limited extent this Court agrees with the defendants. But the defendants’ contention that the Fourth Circuit’s approval of the Council’s plan to levy the tax outside of the Lutcher-Gramercy General Improvement District is tantamount to a grant of discretion to the Council to fail to levy in the incorporated areas is not accepted. That contention is founded on the erroneous supposition that the appellate court did not consider the necessity of the imposition of the tax in the incorporated towns. For, although the holding in Brock No. 1 was not restricted to a determination of the validity of the tax in the ‘rural’ districts, that validity was in fact premised on the applicability of the tax to the entire parish.
Having decided that the tax proposition was legal, the Fourth Circuit found it unnecessary to decide the constitutional issues decided by the trial court in Brock No. 1. It is noted that the Fourth Circuit stated that it would have agreed with the trial court’s constitutional analysis in Brock No. 1 if the Council’s plans to impose the tax only in the rural areas had been ‘contained within the confines of the proposition submitted to the voters.’ This Court understands this to mean that a voter-approved variance in the rates of taxation might have been approved by the Fourth Circuit, just as the Supreme Court sanctioned a similar variance in Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971). However, there is nothing to indicate that the Fourth Circuit prejudged legislative abatement of the tax, and that issue remains for determination.
The proposition presented to the voters of St. James Parish on April 14,1981, was (in pertinent part):
Shall the Parish Council of the Parish of St. James, State of Louisiana (the ‘Council’), under the provisions of Article VI, Section 29(a) of the Constitution of the State of Louisiana of 1974, and other constitutional and statutory authority supplemental thereto, be authorized to levy and collect, and adopt an ordinance providing for such levy and collection, a tax of one percent (1%) (the ‘Tax’) upon the sale at retail, the use, the lease or rental, the consumption, the storage for use or consumption, of tangible personal property and on sales of services in the Parish of St. James (the ‘Parish’), to the extent permitted by law. . . . (Emphasis added)
The crucial words here are ‘in the Parish of St. James (‘the Parish’), to the extent permitted by law.’ They constitute a limitation on the amount of tax the Council may levy. They do not license the Council to act any way it wishes, such as by imposing the tax at different rates in different districts or by arbitrarily exempting certain items from taxation or certain persons from the payment of the tax. The voters gave the Council no discretion to impose the tax in selected areas. They merely approved the proposition as worded on the ballot and, the Fourth Circuit having found it legal, the Council is authorized to levy and collect the tax up to an amount permitted by law. There is nothing in the proposition which authorizes the Council to impose the tax in selected districts or in any manner not uniform throughout the parish. The proposition does not purport to authorize any geographic differentiation.
The defendants, in an attempt to justify their actions, argue that the voters of the parish were told before the election that the tax would not be imposed in the area constituting the Lutcher-Gramercy General Improvement District, and plaintiff acknowledged that there was widespread publicity of the council’s representations. Defendants maintain that the voters authorized the tax on the basis of these representations. However, no cases have been cited to this Court for the authority that pre-election representations made by a legislative body can vary the explicit wording of a proposition placed on the ballot, and the extent to which the voters of St. James may have been influenced by these statements has not been proved to the Court. It is impossible to discern how many voters received the Council’s representations, the number of votes which may have been swayed thereby or whether contrary statements may have been made by spokesmen for the would-be taxing authority. Nor it is likely the defendants could have proved that the election was won on the basis of the Council’s representations without the testimony of the majority of the voters, an attempt surely to be frustrated by the sacroscant principle of the secret ballot. The good faith and integrity of the Council and its legal advisors are not doubted, but neither are they material here. The proposition which appeared on the printed ballot speaks for itself, and it is presumed that this is what the voters read. What may have been said — or not said — in variance of the written proposition’s terms cannot be investigated without setting the precedent for a judicial review of representations made in each and every election contest. Politics is not an unknown phenomenon to the judiciary, but in reviews of tax elections it must remain — in the absence of allegations of fraud or ill practices — an exterritorial one. As the Supreme Court observed in Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (1969), the intention of the people in voting for a ballot proposition may be ‘impossible to ascertain,’ and courts must be guided by the literal wording of the proposition. (Id. at 373).4
4 Justice Barham, in a concurring opinion, remarked (...) Perhaps, as argued, the people were led to support the proposed amendment because of misrepresentation and their consent was obtained through subterfuge, but such an assumption does not release us from our obligation to make our determination within the confines of that amendment and upon its express language. (Id. at 377)”

Plaintiff has cited no authority for the proposition that a legislative body may not modify the terms of a ballot issue approved by the voters. Defendants simply assume this may be done, also citing no authority. In Louisiana Cent. Lumber Co., Inc. v. Catahoula Parish School Board, 191 La. 470, 185 So. 885 (1939), the Supreme Court nullified the defendant’s attempt to collect a tax in any year other than that authorized by the voters. This Court views the Council’s efforts in this case to be all too similar and equally improper.

For these reasons, the Council’s action in abating the tax is declared to be illegal, null and void, and it is unnecessary to consider the constitutional issues raised.

Based upon these reasons, the court’s answer to the question of whether the St. James Parish Council may by ordinance provide for the levy and collection of the tax in the rural areas of the parish only, outside the Towns of Lutcher and Gramer-cy, is that the tax must be collected in the same fashion throughout the parish.

At this point, it is well to note that the appellant complains of the trial judge’s actions in proceeding beyond the bounds of the stipulation in arriving at his decision. We point out that the provisions in our Code of Civil Procedure for the scope of declaratory judgment are set out in Article 1871, et seq. It is the purpose of a declaratory judgment proceeding to put an end to the controversy, and the judge may refuse to entertain any such proceeding where the controversy would not be ended. The stipulations were made in these proceedings in order to end the controversy between the parties and arrive at a decision which would settle all of the pertinent issues. We do not understand appellant’s argument that the judge proceeded beyond the stipulation when the judge noted the rights of the various parties in the record and proceeded in accordance with the basic agreement to answer all of the issues presented.

As a further answer to the question, the judge noted that the petition of plaintiff for a mandamus was still in effect and apparently felt it to be within the supplemental relief provided in C.C.P. Article 1878 and necessary for the purpose of completely answering the basic question posed as well as ending the controversy. In other words, the trial judge ruled, and we agree, that the St. James Parish Council was not being required to impose and levy the tax, but had a choice of either imposing the tax on the entire parish or not imposing it at all. Considering the stipulations of the parties in this suit, we cannot say it is beyond the issues stipulated and the questions posed for answer. The trial judge was obviously determined that he was not to be held to a simple advisory opinion as to what the decision of the Court of Appeal meant, but that he intended to utilize the full scope of the declaratory judgment procedure set out in C.C.P. Articles 1871 and 1872.

Finally, the appellee argues to us that the trial judge was in error by not permitting him to proceed as a class action, giving rise to the possibilities of an award of attorney’s fees, etc. The appellee has not answered the appeal and complained of any portion of the judgment rendered against him, and we do not consider his argument.

For the reasons above stated, the judgment appealed from is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Richard B. SPANGENBERG, Robert W. Merrick, and Boh Bros. Construction Co., Inc., a Joint Venture, d/b/a Industrial Property Development Company v. YALE MATERIALS HANDLING-LOUISIANA, INC.
    No. 12140.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Rehearing Denied Jan. 21, 1982.

      Reuter & Reuter, Arthur C. Reuter, New Orleans, for plaintiffs-appellees.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Robert E. Barkley, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Defendant, Yale Materials Handling-Louisiana, Inc. (Yale), appeals a district court decision in favor of plaintiffs, Richard B. Spangenberg, Robert W. Merrick and Boh Bros. Construction Co., Inc. (a joint venture, doing business as Industrial Property Development Co. [IPD]), and against the defendant in the amount of $84,958 with legal interest due from January 30, 1979. The judgment also noted that it was subject to a credit in favor of defendant, as per joint stipulation of counsel, of $22,296.59.

The defendant has also appealed a trial court decision denying its motion to recuse the district court judge who rendered the decision in the present case.

The issue of this case is the interpretation of a paragraph in a five-year contract of lease (with an option of renewal for another five years) executed between the plaintiffs and defendant, which states:

“24. Improvements by Landlord:
“Prior to the commencement of the term of this lease, Landlord shall at its own expense complete construction, to Tenant’s satisfaction, of the improvements on the Premises as shown in Exhibits ‘A’, ‘B’ and ‘C’, attached hereto and made part hereof. In the event that Tenant requests Landlord to make any changes or additions to the improvements delineated on Exhibits ‘A’, ‘B’ and ‘C’ which would result in increased cost, Tenant may pay such increased cost to the Landlord in cash upon completion of said improvements, or in lieu of a cash payment, Tenant may, at its option, choose to pay as additional rent during each year of the term and the extended term, if this lease is extended by Tenant, an amount equal to 17.22% of the actual cost increase to Landlord resulting from Tenant’s changes or additions.”

The lease between the parties was signed August 9, 1978 and went into effect on December 1, 1978.

In his written reasons for judgment the district court judge stated:

“On August 9, 1978, plaintiffs and defendant entered into a written lease for the rental of certain warehouse space owned by plaintiffs located at 5800 Jefferson Highway and known as Brookhollow Distribution Center. The lease was for a term of five (5) years, with an option to renew for an additional five years. Attached to the lease were drawings identified therein as Exhibits ‘A’, ‘B’ and ‘C’, which indicated improvements which plaintiffs had agreed to make upon the premises.
* * * * * *
“Subsequent to the signing of the lease, defendant requested what it termed ‘additional improvements’, i.e., additions to those delineated in Exhibits ‘A’, ‘B’ and ‘C\ The cost of these improvements was $84,958.00, and defendant invoked the above-quoted lease clause, electing to pay 17.22% of the cost over the five-year term of the lease. Plaintiffs informed defendant that the improvements could not be funded pursuant to paragraph 24 of the lease agreement, because the improvements were not additions to those contemplated by the parties and delineated in Exhibits ‘A’, ‘B’ and ‘C’, but rather were completely new and different ‘special purpose’ improvements. Therefore, subsequently, defendant, thinking that plaintiffs would pay for same, ordered the additional improvements directly through Broadmoor Corporation, the contractor who constructed the improvements. After the completion of the improvements, plaintiffs were informed by defendant that defendant was not going to pay Broadmoor for the improvements, but rather was going to pay plaintiffs via an increased monthly rental as stipulated in paragraph 24 of the lease. Plaintiffs were therefore required to pay, under protest, the entire bill due Broadmoor in cash.
“Plaintiffs now institute this action to recover the cost of the ‘special purpose’ improvements, $84,958.00. At issue is the interpretation of paragraph 24 of the lease agreement, i.e., whether or not the improvements are those contemplated as ‘additional’ improvements under the terms of the lease.
“Normally, the contract, or in this case, lease, constitutes the law between the parties and courts are obliged to enforce the contract as written. * * * However, the fact that a real controversy exists between the parties intentions is a valid basis for the consideration of parol evidence. * * * It is abundantly clear that a ‘real controversy’ does exist between the parties in the case at bar; indeed, plaintiffs’ and defendant’s interpretation of the lease provisions in question are completely at odds.
“The Court therefore has allowed both parties to present evidence regarding these intentions vis a vis the lease agreement. Working well into the evening hours for two days, the Court received lengthy testimony from both plaintiffs and defendant in support of their respective positions.
“The testimony of the witnesses presented was clear and convincing:
“Prior to the signing of the lease, all parties were aware that improvements in the form of generalized office space would be needed. These improvements were to cost approximately $66,000 and were evidenced by original drawings executed by a Mr. Alphonso. Plaintiffs agreed to pay for the improvements as delineated in the Alphonso drawings, and, on August 9, 1978, signed the lease of the property with defendant. Nothing has been mentioned regarding additional improvements up to this date. On August 10, 1978, the very next day, a meeting was held on the job site between Mr. Spangenberg and Mr. Merrick, plaintiffs, and Mr. Joseph Tranno, general manager of defendant’s operation, Mr. Dennis Burmaster, project manager for Broadmoor Corporation, and a Mr. Crocker and Mr. Baker, employees of defendant corporation, who apparently flew in from defendant’s home base in the East or Midwest.
“At that meeting, Mr. Crocker presented new drawings on behalf of defendant which indicated the ‘additional improvements’ which would be needed. Mr. Spangenberg, Mr. Merrick, and even Mr. Burmaster, defendant’s own witness, all testified that they were shocked by the Crocker drawings. The witnesses stated that the improvements called for by the Crocker drawings were radically different from those specified and agreed upon by the parties in the Alphonso drawing. Mr. Spangenberg stated that the Crocker improvements included such special purpose items as a paint spray booth, requiring extensive electrical work to be done through the roof of the warehouse, additions of entire concrete block walls, and the installation of specialized floor drains and intensive lighting equipment. Mr. Merrick testified that he is in the business of leasing warehouse space, owning over 1,000,000 square feet of warehouse rental property in the city. He further stated that defendant’s requested additions were strictly ‘special purpose’ and was of little or no value to other potential business. Additionally, Mr. Merrick testified that in order to accommodate the Crocker improvements, over 2,200 square feet of prior-constructed office space had to be demolished.
“It has been noted above that the drawings representing these radical improvements were first presented to plaintiffs on August 10, 1978, the first day after the signing of the lease (apparently flown in by Crocker), and yet no mention was made of them by defendant to plaintiffs until August 10, 1978. Surely such complicated plans had been in preparation for weeks, and yet plaintiffs were never informed of their existence until the lease was signed.
“This method of transacting business indicates to the Court a pre-conceived attempt on the part of the defendant to take advantage of a clause in the lease. Had there been any doubt on defendant’s part as to whether or not such improvements could be amortized in accordance with the lease, the logical time to inquire about such would be prior to the signing of the lease, not immediately thereafter. There is no doubt whatsoever in the mind of this Court that the defendant was in bad faith — lying in wait like a lynx — waiting to spring upon an honest and unwary prey.
“In additional testimony, Mr. Spangen-berg stated that no money arrangements relative to the additional improvements were made with Mr. Crocker. Obviously, plaintiffs intended defendant was to pay Broadmoor directly, and defendant intended the opposite. However, the proof of plaintiffs’ intention is the testimony of Mr. Spangenberg that he advised Broadmoor Corporation to keep the accounts of the Crocker improvements and the Alphonso improvements separate, which statement was corroborated by Mr. Bur master, defendant’s own witness.
“It was not until January 29, 1979, when Mr. Spangenberg was given the bill for the additional improvements by defendant that he realized defendant intended to pay for them through the increased-rental clause of the lease — and both Mr. Spangenberg and Mr. Merrick testified that although they paid Broadmoor the full amount of the improvements, i.e., $66,000 plus $84,958.00, they did so only after Broadmoor threatened to place a lien against their property should the bill go unpaid — a formidable weapon obviously anticipated by defendant and one which defendant knew could not be used against it.
“As written, the lease-clause in question allows defendant to pay for the improvements at its option, 1) in cash at the time of completion; 2), as additional rent, an amount equal to 17.22% of the actual cost over a period of five years, or 86.1% of the actual cost over a period of 10 years, or 172.2% of the actual cost.
“Mr. Fallon, leasing administrator for Eaton Corporation, the parent company of which defendant Yale is a subsidiary, testified that although under the terms of the lease as invoked by defendant they would only be paying for 86.1% of the actual cost, plaintiffs would own the valuable improvements left behind at the lease’s termination. However, Mr. Merrick stated that plaintiffs were willing to accept a partial payment of the improvements over the five-year amortization period, because generalized office space as contemplated by the Alphonso drawing was an asset to the property and then to plaintiffs. Alternatively, the ‘special purpose’ improvements specified in the Crocker drawings were of little or no value to plaintiffs and, in fact, would act as a hindrance in renting the property in the future.
“The Court would like to note that the document in question was drafted by laymen who, while perhaps sophisticated businessmen, as defendant contends, are not attorneys and thus not entirely knowledgeable of the intricacies of such complex documents. While the obviously inequitable result of this clause is therefore understandable in light of the circumstances of its composition, Louisiana courts will not interpret the words of a contract literally when such an interpretation leads to unreasonable consequences or inequitable or absurd results, even where the words are fairly explicit.
“Certainly to interpret the lease to mean plaintiffs will pay for approximately $85,-000.00 worth of improvements which are virtually worthless to them, while defendant, who is reaping the benefit of said improvements, will re-pay plaintiffs only a small portion of that amount, considering the interest plaintiffs must pay, leads to the absurd and inequitable results referred to above. As was noted in Burt v. Hebert, 338 So.2d 717 ([La.App.] 1976), ‘when a dispute exists over the terms of a contract, the controversy must be resolved in light of the principle that informed and experienced parties do not ordinarily bind themselves to unreasonable obligations.’ The Court considers the obligation defendant seeks to enforce completely unreasonable and was never intended by the plaintiffs.
“In conclusion, the Court has been presented with a plethora of evidence which leads to the unassailable conclusion that the ‘additional improvements’ requested by defendant were not those contemplated by the parties and alluded to in paragraph 24 of the lease, but rather were ‘special purpose’ improvements for which defendant was completely liable.”

Spangenberg testified that the $84,-000 in improvements were special purpose rather than general purpose improvements in that they are not generally of value to warehouse tenants, and he added that the distinction between the two is well-recognized by people in the business of building buildings as well as by lending institutions which issue mortgages.

Spangenberg testified that because the plaintiffs were not able to get the $84,000 of improvements financed within their mortgage, they had to go to the bank and borrow money on a short term basis to pay for them. He added that a separate $66,000 of improvements were in fact agreed to by the plaintiffs, were approved by their lender and were paid for by the plaintiffs. It was Spangenberg’s opinion that the $84,000 of improvements could not be considered “additions or revisions” under the lease but were a “completely new ball of wax,” and he said he was never asked by the defendant to make these improvements.

Spangenberg testified that on August 10, 1978 he met a Mr. Crocker, a representative of the defendant, at the subject warehouse. Crocker exhibited a new set of plans which required plaintiffs to tear down some of the improvements which had already been built by the contractor, Broadmoor, in accordance with the previously approved plans. Span-genberg said he told the contractor’s representative to “go over to his office and see what you have to do.” He said upon learning the proposed additional improvements were going to cost approximately $110,000 he called Mr. Utz, president of the defendant corporation, and told him “I hope you understand. This is an enormous amount of money that you are going to have to pay,” to which Utz replied, “I know that, this is what we need to operate.”

On cross-examination, Spangenberg admitted he did not participate in the actual negotiations on the lease but said that this was done between Robert Merrick and Robert Fallon. He added that although some additional improvements were contemplated under the lease, at the time of the August 10, 1978 meeting he remembered pointing out to Crocker that rather than additions they were talking about something entirely different.

On December 5, 1978, Spangenberg said he was billed by the contractor for the $66,000 worth plus the $84,000 worth of improvements. He stated that subsequently, on January 29, 1979, he met Utz at Broadmoor’s office where Utz stated the defendant was electing to pay the bill he had received from the contractor at 17.22% of the lease. Spangenberg said he paid the entire amount to Broadmoor under duress because he was informed it was going to place a lien against the building unless the bill was paid.

Merrick testified that at the August 10, 1978 meeting the new plans exhibited by Crocker were a radical departure from the plans already approved by them (and which had been attached to the lease), requiring the plaintiffs to demolish 2200 square feet of office space. Merrick further stated that at that point they started setting up a separate contract with Broadmoor and said that “never before in my wildest dreams would I amortize special purpose improvements over a ten-year basis for a five-year lease, not in a general spec warehouse.” Merrick also testified that he told Spangen-berg to call Utz and tell him “this is for your account, we cannot pay for it”; that although they kept getting invoices from Broadmoor, Spangenberg assured him Utz was aware of the situation; that although he was aware, before the lease was signed, that some highly special purpose improvements were going into the building “we did not think we were going to pay for those”; and that the plans proposed by Crocker totally removed the previously approved plans rather than making an addition to them.

Robert Fallon, leasing administrator of the Eaton Corporation of which Yale is a subsidiary, said that from the outset of negotiations with the plaintiffs they were aware there would be special improvements because the defendant was not leasing a warehouse but a facility for the purpose of sales and service. He stated he negotiated the lease but had no authority to pay for or contract for any leasehold improvements which would have had to have specific approval in his corporation.

Fallon admitted that paying for the improvements by a formula of 17.22% per year would not pay for them over five years, but said he considered this an inducement for the lease. He said he thought this would also serve as an inducement to renew, in which case the 17.22% would amount to substantially more than what the plaintiffs were paying. He added he told Merrick he did not know what the costs of the various improvements would be, and at the time the lease was signed he did not know what the special improvements would cost. He also said he thought special improvements were to be treated the same as general improvements, and he noted the landlord owns the improvements when the defendant leaves the building. Fallon further testified there was never any contract, verbal or otherwise, between Broadmoor and Yale.

Joseph Tiano, who was acting general manager of Yale in New Orleans at the time of the contract, said that prior to the signing of the lease he told Merrick and Spangenberg what Yale would need in the way of improvements to the building to operate a lift truck dealership, and he was never told the plaintiffs would not pay for any special purpose improvements or that there was a distinction between how any additional improvements would be paid for. He said he would have had to contact headquarters for special funds to pay for this. He also said that at the August 10, 1978 meeting neither Spangenberg nor Merrick said they did not intend to pay for the new plans.

Dennis Burmaster, project estimator for Broadmoor, testified Broadmoor is a subsidiary of Boh Bros., one of the plaintiffs. He said he did not give the plaintiffs an estimate as to what it would cost to build the original plans. He explained that at the August meeting, he, Merrick and Spangen-berg “were amazed” at the difference between the two sets of plans. He added because it was hot that day it was suggested that he, Tiano and Crocker go to Broadmoor’s office to go over the plans, but there was no discussion as to who was going to pay for the changes. He said he was later instructed by Spangenberg to keep a breakdown of the original drawing’s costs separate from the costs of the later plans.

Burmaster said as far as he was concerned he was making the improvements for the plaintiffs at the time the construction was done and thought they were going to pay the bill. He said after he sent the first bill for the total amount to the plaintiffs, he then sent a bill to Yale (at Span-genberg’s request) for the $84,000. He stated approximately $38,000 of the $84,000 was for office improvements.

Furthermore, this court can find no merit in defendant’s argument that plaintiffs Spangenberg, Merrick and Boh Bros, have no right of action because they are seeking to enforce the rights of a joint venture and, therefore, the case should have been dismissed by the district court judge. In support of this argument it cites Bradley v. Lemoine, 278 So.2d 148 (La.App. 1st Cir. 1973), which states that under the provisions of LSA-C.C.P. art. 688 a suit seeking recovery of an indebtedness due the partnership must be brought in the name of the partnership and not in the name of an individual member thereof. This court is also aware of Villarrubia v. Roy, 162 So.2d 86 (La.App. 4th Cir. 1964), where the court stated that while a joint venture is not identical with a partnership, it is analogous to a partnership and is controlled largely by the principles of rules applicable to partnerships. Similarly, in Dalby v. United States Fidelity & Guaranty Co., 365 So.2d 568 (La. App. 1st Cir. 1978), the court, noting Villar-rubia, also said that a suit on such a claim brought individually in the name of a partner fails to disclose a right of action or interest in the plaintiff to institute the suit. In the present case, however, a review of the record reveals the suit was actually brought in the names of “Richard B. Spangenberg, Robert W. Merrick and Boh Bros. Construction Co., Inc., A Joint Venture, D/B/A Industrial Property Development Company” and the judgment in favor of plaintiffs was decreed in the same manner. Accordingly because the action was brought in the name of the joint venture, the defendant’s exception of no right of action was properly overruled.

Defendant also contends the district court was in error in admitting parol evidence; however, we cannot agree. In Williams v. Bel, 339 So.2d 748 (La.1976), the court said at 750-751:

“The La.Civil Code, articles 1945, et seq., provides rules to guide us in the interpretation of agreements. Pertinently, it provides that the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences; it is the common intent of the parties — that is, the intention of all — that is sought for [article 1945]; and when there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms [article 1950]; when the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation [article 1956]; but if the doubt or obscurity arise from the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee [article 1958].”

Since there are no limitations specifically placed by Paragraph 24 of the subject lease on changes or additions that might be requested by the tenant (resulting in increased costs), to read that clause literally would lead to the conclusion that the defendant tenant was free to request any amount of additions it chose, which the plaintiffs would also be required to implement and finance. Because the words of the contract, therefore, lead to absurd consequences, the district court judge was correct in allowing parol evidence to ascertain what was the common intention of the parties, rather than adhere to the literal sense of the terms in writing.

In Rayford v. Louisiana Sav. Ass’n, 380 So.2d 1232 (La.1980), the court also stated that ambiguous phrases in contracts are strictly construed against the party who prepared the contract. The court noted, however, it found one paragraph in the subject contract to be ambiguous because it was susceptible of “two conflicting but reasonable” interpretations. In the present case, however, rather than finding the disputed contract clause ambiguous, the district court held the $84,000 of additional improvements requested by the defendant were not those contemplated by the parties and alluded to in Paragraph 24 of the lease. Therefore, because there was no finding of ambiguity, the court was not obliged to strictly construe this paragraph against the plaintiffs who prepared the lease.

The witnesses in the present case gave completely conflicting testimony as to what the intent of the parties was regarding Paragraph 24 of the subject lease. The trial judge’s conclusions — that the defendant was in bad faith and that the $84,000 of improvements were not those contemplated by the parties and alluded to in Paragraph 24 — are factual findings of the district court based on a reasonable evaluation of credibility. For this reason, and because the record furnishes a reasonable factual basis for the trial court’s findings, this court is bound not to disturb it due to the fact that we do not find that manifest error which would allow us to do so.

The defendant also assigns that the district court erred in awarding legal interest from January 30, 1979 rather than from the date of judicial demand. However, in Teledyne Movible Offshore v. C & K Offshore, 376 So.2d 357 (La.App.3d Cir. 1979), the court stated that unlike judgments ex delicto, interest is recoverable on debts arising ex contractu from the time they become due, unless otherwise stipulated, citing LSA-C.C. art. 1938. In the present case a review of the record reveals that on January 29, 1979 defendant informed the plaintiffs through Spangenberg that the increased costs would not be paid in cash but would be paid as additional rent. The district court judgment, therefore, was correct in determining judicial interest should be awarded from January 30,1979, the approximate date when demand on the defendant was met by its refusal to pay in cash.

Lastly, defendant also argues on appeal the trial court judge should have been recused. Such an appeal is properly before the court, because recusation vel non is interlocutory in nature and may be reviewable on appeal of a final judgment on the merits of the case. State, Department of Highways v. McDonald, 329 So.2d 898 (La.App.2d Cir. 1976). In the case of Southern Builders, Inc. v. Carla Charcoal, Inc., 357 So.2d 638 (La.App.3d Cir. 1978), the court noted the jurisprudential rule that there must be a statutory ground for recus-ing a judge. The court also cited LSA-Const. Art. 1, § 22, which guarantees all courts shall be open and every person shall have an adequate remedy by due process of law and justice administered without partiality. In that case, though the appellate court felt some of the actions of the district court judge were ill-advised, it held they did not reflect such partiality as would justify his recusal, based on his testimony that he had earlier reached only tentative conclusions on the basis of evidence thus far presented and that he would decide the case on a fair and impartial basis when all the evidence was heard.

Similarly, at the recusal hearing in the present case, the trial court judge testified there was no doubt whatsoever that he could give both plaintiffs and defendant a fair and impartial trial; that he had no interest, financial or otherwise, in the case; and that the only opinions he had expressed so far about the case were based upon facts given to him at the time of the pre-trial conference. He also noted that although most of the time cases turn out the way they look at the pre-trial conference, if the evidence is different, or he is given some other law, his mind is completely open at the trial to do anything proper. In view of this, we hold the refusal of the judge who heard the evidence on the motion to recuse the trial court judge in the present case was correct because no statutory ground for re-cusal was presented.

For the reasons assigned, the district court decision is affirmed.

AFFIRMED.


text:
    Benjamin JOSEPH, et al. v. Elwood ALBARADO, et al.
    No. 12161.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Rehearings Denied Jan. 21, 1982.

      Talbot, Sotile, Carmouche, Waguespack & Marchand, Victor L. Marcello, Donaldson-ville, for Benjamin Joseph and Lillian Joseph, plaintiffs-appellees.
    Frank J. Achary, Metairie, for Carl Ott, Jr., defendant-appellant.
    Owen, Richardson, Taylor, Mathews & Atkinson, Daniel R. Atkinson, Baton Rouge, for Kent Enterprises, Inc., defendant-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John C. Combe, Jr., New Orleans, for Larry Townsend and Liberty Mut. Ins. Co., defendants-appellants-appellees.
    William V. Renaudin, Jr., and Kenny M. Charbonnet, New Orleans, for Liberty Mutual Ins. Co., defendant-appellant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff Benjamin Joseph and defendants Carl Ott, Jr., Kent Enterprises, Inc. (Kent), and Liberty Mutual Insurance Company (Liberty) appeal a district court decision in favor of the plaintiff and against the defendants. The judgment decreed that Ott, Kent, Carlton Yarbrough and Elwood Albarado (as executive officers of South Louisiana Contractors, Inc. [SO-LOCO]) were negligent and this negligence was a proximate cause of the plaintiff’s injuries. It further declared the judgment was against those defendants, in solido, in the amounts of $50,000 for past, present and future pain and suffering; $5,719.80 for medical expenses and $3,920 for lost wages, together with legal interest thereon until paid and all costs.

It was also stated, as part of the trial court judgment, that the plaintiff was not negligent nor did he assume the risk of his injury and that Liberty was subrogated to the rights of plaintiff to be reimbursed by preference for all compensation payments made to plaintiff and all medical expenses paid for plaintiff past, present and future. Larry Townsend, Norris Pitre, Joseph C. Wiltz, Carroll Mabile and K. C. Forest Products were also declared not negligent and were dismissed as parties defendant.

Additionally, the various appeals filed in this case have been answered by Ott, Liberty (as intervenor) and Joseph. Defendant Elwood Albarado has not appealed the district court decision.

At a trial on the merits of the case Joseph testified that at the time of the accident, September 11, 1976, he was working as a general laborer for SOLOCO and had been so employed for the previous six or seven years. He said on that date he was called by his foreman, Albarado, from the work he was doing (nailing boards) to help “spot pilings.”

Joseph explained he had done this type of work before, but not often, and thé only instruction he had ever been given was to hold the pilings over the stake.

In describing the procedure, Joseph said the dragline operator, Mabile, would winch up the piling attached to a cable and a chain, which was then hoisted into the air, inserted into a cage-like device and brought over to the stakes in the ground. He then would grab the piling when it was at waist level and hold it or steady it until it got to the ground. Joseph further testified he was struck on the lower part of his back and shoulder before falling forward on his knees and said the accident happened so quickly he did not know what hit him. On cross-examination Joseph also said he had seen a branch or knots on the piling but “did not think they made any difference.”

Albarado testified that at the time of the accident Norris Pitre was working with him but Pitre was also a foreman. He said his own supervisor was Carlton Yarbrough but he was not on that particular job site all the time. He added that the three foreman at the Boutte location each took care of his own men.

Albarado said that although he did not see the plaintiff as he was struck, he did see him as he fell to the ground. He added there was an 8- or 9-inch branch on the piling which must have hit him because “that is the only thing I could see.”

Also Albarado stated that before the accident he observed Joseph “doing his job like he was supposed to”; that the plaintiff was responsible for looking down as he spotted; and that no one at SOLOCO was responsible for checking pilings before they were used. He said he did not warn Joseph about branches on the pilings because there were never any before. He estimated the branch he saw was approximately 15 feet from the bottom of the piling but only about 3 feet from the ground by the time he arrived at where the plaintiff had fallen after the accident. He also said his job was to look at the man on the lead so he did not see the branch on the piling prior to the accident, and he stated these pilings were delivered to the Boutte site by a Kent truck.

Carroll Mabile, the dragline operator for SOLOCO at the accident site, said he did not see any branch on the piling in question but that he was not looking for any because there “wasn’t supposed to be any on these.” He also said that when he let the piling go down, it sometimes went down 9 or 10 feet by itself due to marshy ground.

Johnny Carville, safety director at SOLO-CO at the time of the accident, identified documents evidencing the sale of pilings from Kent to SOLOCO in September of 1976 and testified these were the only records found by him in this regard after a search of SOLOCO files. He said Townsend, the branch manager, did not have the authority to tell him when to hold safety meetings. He also said the meetings he held were mainly for the pushers and supervisors and that he depended solely on the pusher or foreman to pass on what he had learned to the crews. He testified he has been on many jobs but has never seen a branch or knot sticking out of an untreated piling.

Carlo Trióla, office manager of Kent, stated that in September of 1976 Kent obtained all of its untreated pine pilings from Carl Ott, Jr., and, although Kent also did business with K. C. Forest Products, during that time period there were no purchases from that company. He also said the pilings were always picked up by his own company’s trucks and if they were not satisfactory, the driver would reject them. He stated that piling is not stocked by Kent but purchased by it when it receives an order.

Carl Ott, Jr., testified the nature of his business is producing poles and pilings. He said trees are cut down to meet the specifications of an order and all the limbs are removed by a power saw out in the forest. He added there are supervisors in the field who inspect the pilings to see if there are any limbs on them when they are loaded on the truck.

Ott said the ultimate responsibility for determining that the pilings are prepared properly according to order rests with those in charge at its final destination. He also said he himself occasionally inspects the preparation of these pilings.

Felix Truxillo testified he had done pile spotting for SOLOCO and received “a little” instruction on how to do it from Albar-ado. He stated he was never warned about limbs or branches. He said that although he had worked for seven years for SOLOCO prior to this accident, he had never attended a safety meeting and only received safety instruction from Albarado. Truxillo said he was driving the truck the day of the accident but he was not responsible for inspecting the pilings nor did he know of anyone else who was responsible for inspecting them before they were used.

Norris Pitre stated he was riding the leads on the pilings for SOLOCO at the time of the accident and that the lead was a “swinging” type. He said after the accident he saw a little bruise spot on the plaintiff’s shoulder, but he did not know what had happened. He also stated that in his position on the job he could not see the person spotting and he had never seen branches on pilings before this incident occurred. He added that only the foremen at SOLOCO attended safety meetings and he had learned to spot pilings only by watching others do it.

Ura Sims, also employed by SOLOCO for 10 or 11 years at the time of the accident, said he was at that time “butting” the pilings or trimming the ends off with a power saw. He said after the accident, he did not see a branch but saw a hole or groove in the ground which could have been made by it. He also stated he rode home with the plaintiff after the accident and Joseph complained of shoulder pain.

Sims testified he had previously sawed off branches or knots he noticed on pilings, and he said a person standing beneath a piling would not always be able to see a branch — it would depend on which side of the piling it was on.

Allen Smith, who was overseer of Ott’s pole yard in September of 1976, testified that pilings were brought into the yard where they were classified as to length and diameter and inspected. He said if a branch was noticed a saw hand would be called to cut it off. He also said that in the three and a half years he was with Ott he had never had a complaint regarding knots or limbs. He admitted it was one of his functions to remove all limbs before the pilings were shipped. He said he did not feel it was the responsibility of drivers picking up the pilings to inspect them.

Larry Townsend, manager of the Thibo-daux branch of SOLOCO at the time of the accident, said at the trial that Carlton Yarbrough, deceased at the time of trial, was under his direction at the Boutte site. He said Yarbrough’s job as a superintendent was to work with the foremen to see that the job was done and that Albarado, as well as himself, had the authority to hire and fire, although applications for hiring had to be approved by the office. He added it was the pusher or foremen’s responsibility to instruct the men as to safety in spotting pilings and that there was no procedure to inspect pilings that were brought to the work sites nor anyone who actually had that specific responsibility. Townsend added that when he receives pilings from a manufacturer or retailer he expects them to be free of limbs.

In giving his reasons for judgment and conclusions of facts, the district court judge stated in part:

“From the evidence, this court finds the following facts proven:
1. The piling involved in the accident had a limb, or branch, some two inches in diameter and some six to eight inches in length protruding from the piling.
2. The piling was cut, cleaned and inspected by Carl Ott, Jr.
3. The piling was sold by Carl Ott, Jr., to Kent Enterprises, Inc.
4. Kent Enterprises, a vendor of, among other things, piling, sold the piling to South Louisiana Contractors, Inc., and delivered the piling to the construction site of SOLOCO in this parish.
5. Kent Enterprises did not inspect the piling before or after delivery to SO-LOCO, or if it did, the inspection failed to reveal the protruding limb.
6. SOLOCO did not inspect the piling before placing it in position to be driven into the ground at the construction site, or, if it did, the inspection failed to reveal the protruding limb.
7. The protruding limb was an apparent and obvious defect that could be detected by visual inspection.
8. In the normal use of piling they are driven into the ground for varied purposes.
9. The primary job purpose of plaintiff was to guide and position the piling above the ground designated for the driving of the piling. This necessitated that plaintiff look downward while positioning the piling.
10. Yarbrough was the Field Superintendent for SOLOCO in charge of the construction at the site in this parish.
11. Albarado was the immediate foreman of plaintiff.
12. As the piling was being driven into the ground, the protruding limb struck plaintiff on the shoulder and caused injury.
“From these facts, the court finds the following conclusions:
1. Carl Ott, Jr., failed to detect and remove the protruding limb from the piling thus rendering the piling unreasonably dangerous for normal use.
2. Kent Enterprises, Inc., failed to detect and remove the protruding limb from the piling thus rendering the piling unreasonably dangerous for normal use.
3. Yarbrough and Albarado failed to have the piling inspected before use thus providing plaintiff with unsafe material to work with and with an unsafe place to work.
4. Plaintiff, in the execution of his duties, was required to look downward and not upward.
“Consequently, this court must find that:
1. Carl Ott, Jr., provided a piling that was unreasonably dangerous for normal use and this defective piling was a proximate cause of the accident.
2. Kent Enterprises sold a piling that was unreasonably dangerous for normal use and this defective piling was a proximate cause of the accident.
3. Yarbrough and Albarado each owed to plaintiff a particular personal duty to provide him with safe materials to work with and to provide him with a safe place to work. Each breached this duty and each breach was a proximate cause of the accident.
4. No act of negligence was proven as to Larry Townsend, Norris Pitre, Joseph C. Wiltz, Carroll Mabile, or K. C. Forest Products. W. W. Goodson and Orville Watson were previously dismissed as party defendants by directed verdict.
5. Elwood Albarado and Carlton Yarb-rough each was an executive officer of South Louisiana Contractors, Inc.
6. Carl Ott, Jr., Kent Enterprises, Inc., Elwood Albarado, and Carlton Yarb-rough each breached a duty of care owed to plaintiff and are liable in solido to plaintiff for damages. As one joint tort-feasor to another each is liable for his virile share of damages and if any of the tort-feasors is required to pay unto plaintiff in excess of his virile share then he is entitled to contribution from the other tort-feasors.”

In the case of Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963), the court said 153 So.2d at 397:

“Causation may, of course, be proved by circumstantial evidence. In many instances, it can be proved only by such evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.”

In the present case, although no one actually witnessed the accident in question, the testimony of those at the job site, as summarized above, allowed the trial court to conclude that the plaintiff’s injuries were, more probably than not, caused when he was struck by a limb protruding from the piling he was spotting, and this court can find no manifest error in that conclusion.

Neither does this court find error in the trial court’s conclusion that Carl Ott, Jr., breached a duty of care owed to the plaintiff and, therefore, was liable for his injuries. In Weber v. Fidelity & Casualty Insurance Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971), the court said 250 So.2d at 755-756:

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.
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“If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.”

In the case of Dixon v. Gutnecht, 339 So.2d 1285 (La.App. 1st Cir. 1976), the court also said at 1289-1290:

“The invocation of strict liability brings with it a corresponding change in the conventional rights and responsibilities of the parties in a delictual action. In essence, it is liability without proof of specific substandard conduct. All that is required is that the plaintiff prove a defect in the product; that at the time of its failure it was in normal use; that it was unreasonably dangerous in that use; and that the injuries were caused by the defect. The defenses in such an action are the negative of any of the above plus the assumption of risk as distinguished from contributory negligence. Hastings v. Dis Tran Products, Inc., 389 F.2d 1352 (W.D.La.1975); and Langlois v. Allied Chemical Corporation, [258 La. 1067, 249 So.2d 133], above.”

The court also stated in Cobb v. Insured Lloyds, 387 So.2d 13 (La.App. 3d Cir. 1980), at 17-18:

“ * * * In Weber v. Fidelity & Casualty Insurance Company, 259 La. 599, 250 So.2d 754 (1971), the court held a product is defective if ‘unreasonably dangerous to normal use.’ We stated in the case of Avoyelles Country Club v. Walter Kidde & Co., 338 So.2d 379, 382 (La.App. 3rd Cir. 1976) the relevant inquiry is ‘what was the normal or intended use of the product, and was plaintiff making such normal or intended use of it?’
* * * * * *
« * * * In the case of Fox v. American Steel Building Company, Inc., 299 So.2d 364 (La.App. 3rd Cir. 1974) we stated:
‘... the law does not require that the manufacturer make the product “fool proof” or “accident proof.” It does require, however, that it exercise reasonable care in the design and fabrication of its products which are of such a nature that, if not carefully made, can cause foreseeable injury to persons using the products for purposes which the manufacturer may reasonably expect them to be used. Failure of the manufacturer to exercise such care renders it liable if injury results from the lawful use of the product in a manner and for a purpose for which the manufacturer may be deemed to reasonably expect. Leathem v. Moore, 265 So.2d 270 (La. App. 1st Cir. 1972); Gauthier v. Sperry Rand, Inc., 252 So.2d 129 (La.App. 3rd Cir. 1971) supra.’
“Normal use is a matter of foreseeable use and may include something broader than operation exactly in accordance with the manufacturer’s instructions. See, Fox v. American Steel Building Company, Inc., supra; Avoyelles Country Club v. Walter Kidde & Company, supra; AMCO Underwriters of Audubon Insurance Company v. American R & S Corp., 329 So.2d 501 (La.App. 1st Cir. 1976).”

In the present ease, the plaintiff sustained his burden of establishing, through testimony, that more probably than not his injury was caused by a defect in the composition of the piling, a protruding limb. Certainly, because the manufacturer was aware that these poles were intended for use as pilings, such an injury to men working with them could have been reasonably anticipated. It was not necessary, therefore, that the plaintiff show Ott was negligent. He did, moreover, establish (1) the piling was defective; (2) it was in normal use at the time of the accident; (3) the piling was unreasonably dangerous in that use; and (4) the defect, the protruding branch, caused his injuries. Neither was it shown by Ott in defense that the plaintiff in any way assumed the risk of his injury or that he was performing his work in a negligent manner when the accident occurred.

We do agree, however, with the plaintiff’s assignment of error alleging that Ott was cast personally in the district court judgment rather than in the name of his corporation. A review of the record reveals that the plaintiff’s second amending petition, including this defendant in the suit, refers only to “Carl Ott, Jr., Poles and Pilings, Inc., a Mississippi corporation licensed to do and doing business in this state.” Ott also testified at trial that he conducts his business as a corporation. Accordingly, this court holds that the district court judgment should be amended in this respect.

This court can find no error in the trial court’s determination Kent also breached a duty of care owed to the plaintiff. In discussing standards to be met for establishing negligence, the court said in Williams v. City of Alexandria, 376 So.2d 367 (La.App. 3d Cir. 1979), at 370:

“Negligence is conduct which creates an unreasonable risk of foreseeable harm to others. Negligent conduct becomes a cause in fact of harm to another if it was a substantial factor in bringing about that harm. Negligence is determined by the existence of a risk or hazard and by the violation of a duty to protect certain individuals from such risk. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970). Where the risk of harm encountered by a plaintiff falls within the scope of protection to which a defendant is under a duty to extend, and where there is a breach of that duty, the defendant then becomes liable for any injury resulting to the plaintiff arising from the particular risk or hazard which exists. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976).”

The defect complained of (a protruding limb) was not a hidden one but one which was discernable upon inspection of the pilings. Kent, as the seller of the defective product, certainly had a duty to inspect and discover such defects and we find that the violation of that duty led to the plaintiff’s injury.

We also hold that the trial court did not err in refusing to grant Kent’s third party demand against Ott for reimbursement of damages for which it is held liable. In the case of Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La.1974), the court refused to hold a retailer liable for damages sustained by the plaintiff, although the manufacturer of the defective product was so held. However, the court noted at 807: There is no evidence in the record from which we could conclude that Reliable Motors [the retailer] or its employees knew or should have known that this wheel and rim were defective.” Spillers, therefore, is distinguishable from the case before us where the defect was an apparent one that could have been discovered upon ordinary inspection, which Kent, as the seller of the product, certainly had a duty to perform. Moreover, employees of the buyer of this product were among those individuals to whom this duty extended since it was foreseeable they could be injured by such a defect in the product.

This court also holds the district court was correct in its determination that Yarbrough and Albarado were executive officers of SOLOCO and that they also breached a personal duty owed to the plaintiff. Accordingly, we hold the policy by Liberty in effect on “executive officers” of SOLOCO at the time of the accident properly covered the liability of Albarado and Yarbrough.

In Canter v. Koehring Company, 283 So.2d 716 (La.1973), the court articulated the following criteria for imposing liability on individual executive officers at 721:

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
“2. This duty is delegated by the principal or employer to the defendant.
“3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
“4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.”

Also, in the case of Hadrick v. Diaz, 302 So.2d 345, 353 (La.App. 1st Cir. 1974), the court articulated numerous factors to be considered in a determination of the status of corporate executives:

“In determining the issue before us, our own courts have considered the following circumstances relevant: (1) Whether the employee’s position was created by corporate charter, Thibodeaux, above; (2) Whether the employee was formally elected or designated to his office or position by the Board of Directors, the officers or stockholders, Thibodeaux, above; (3) Did the employee have authority, discretion and managerial responsibility covering the divergent affairs of the corporation, Thibodeaux, above; (4) Did the employee have duties or authority outside his particular department, Thibo-deaux, above; (5) Was the employee involved in shaping company policy, Thibo-deaux, above; Berry, above; (6) Did the employee possess authority to alter contract terms or conditions or to change specified company procedure, Upham, above; (7) Whether the employee had several department heads under his supervision, Berry, above; (8) Whether the employee had a large number of employees under his direction and control, and (9) Did the employee have authority to hire and fire other employees, Berry, above? In Guillory v. Aetna Insurance Company, 415 F.2d 650 (Fifth Circuit), the court also considered whether the employee maintained a close connection with the corporate officers and board of directors and whether the employee was empowered to write company checks.”

In the present case it was established through the testimony that Albarado was in charge of implementing safety policies among his men and also for showing them proper techniques for performing the various jobs. It was also established he had the authority to hire and fire, had a close connection with those higher in the corporate structure, and it is inferred he helped shape corporate policy due to input from him at safety meetings. Yarbrough, as Albarado’s immediate supervisor and a frequent inspector of the work site, also being higher up on the corporate scale than Albarado, must certainly be considered an “executive officer.” Moreover, each had a personal duty to instruct the plaintiff and the other men on the job in proper, safe work techniques as well as a personal responsibility to inspect for and eradicate any unsafe conditions (such as defective work materials) which were apparent.

For these same reasons, the court was correct in dismissing the action as to Townsend, Pitre, Wiltz, and Mabile to whom no negligence could be attributed through the testimony adduced at trial. K. C. Forest Products was also properly dismissed from the suit because, as noted previously, it was established at trial the defective piling in question could not have come from that company.

Regarding the damages awarded to the plaintiff, this court can find no merit in his argument that he should have been awarded damages for future loss of wages and that the trial court’s award for pain and suffering should be increased. Dr. Robert E. Hanchey testified he admitted the patient approximately one month after the accident for pelvic traction, heat and physical therapy, but he did not improve with these treatments with regard to his back, left hip and left leg.

Dr. Hanchey said the patient underwent a myelogram, which showed an extradural herniated disc type defect on the left, and stated the plaintiff subsequently underwent surgery. He added the plaintiff was discharged and he had seen him “seven or eight times subsequent to that and basically this man has continued to complain of pain in his back and left leg.”

Dr. Hanchey’s opinion was that the plaintiff would not sufficiently improve to perform any type of heavy manual labor. He also said it was his impression that the herniated disc was not acute but had been herniated for a lengthy period of time prior to the injury; however, it was also his impression the injury aggravated this preexisting but relatively asymptomatic degenerated disc. He did not think the plaintiff would benefit from any further neurosurgical evaluation and treatment, and he felt the most reasonable thing to do would be to refill his non-narcotic analgesics. At the time of Dr. Hanchey’s deposition in September, 1978, he had not seen the plaintiff since May of 1977.

It was Dr. Hanchey’s opinion the plaintiff could have performed some light duty that would not require any heavy lifting over approximately 20 pounds, if he were so motivated. He also said the plaintiff was extremely obese, weighing around 300 pounds, and that a significant weight loss would increase Joseph’s ability to perform manual labor.

In his reasons for judgment, the district court judge made the following statements regarding the court’s award of damages:

“Dr. Hanchey found plaintiff to be extremely obese and recommended plaintiff lose at least 100 pounds in weight. He was certain that weight loss would improve plaintiff’s back condition. However, although there was no medical reason why plaintiff could not lose weight he had not done so up to the date of trial.
“On several occasions Dr. Hanchey advised and recommended that plaintiff return to work, however, as of the date of trial plaintiff had not attempted to return to work.
“Dr. Hanchey was of the opinion that plaintiff’s motivation to improve and to return to work was not good.
“Based on this medical history, this court must find that plaintiff has not proven with reasonable certainty that he is totally and permanently disabled nor that his future earning capacity has been impaired or lessened:
* * * [T]he medical opinion only bars plaintiff from heavy manual labor. It suggests and recommends that plaintiff can with minimum pain and suffering engage in less strenuous jobs.
* * * [P]laintiff, at the time of the accident, was earning $2.80 per hour. This is minimum wage and this court cannot, as a practical and logical conclusion, find that any less strenuous job would pay plaintiff a wage below this minimum wage standard. Further, the limited abilities of plaintiff appear well suited for a variety of less strenuous jobs.
* * * [PJIaintiff has made no effort to seek a less strenuous job.
* * * [PJIaintiff has not consulted a doctor nor sought medical attention since May, 1977. His subjective complaints of pain and suffering and inability to perform any manual labor becomes a matter of speculation and conjecture.
* * * [TJhe failure of plaintiff to lose weight and the failure of plaintiff to seek employment suggests strongly that plaintiff is not motivated to seek further employment.
* * * When plaintiff was discharged from medical treatment in May, 1977, from the medical opinions we must believe that he was capable of working at less strenuous jobs. Plaintiff is entitled to wages lost during the period of September 11, 1976 to May, 1977, a total of 35 weeks at $2.80 per hour for a 40 hour work week for a total of $3920.00 lost wages.
* * * Plaintiff was subjected to pelvic traction, a lumbar laminectomy, two mye-lograms. Dr. Hanchey was satisfied that plaintiff’s condition caused considerable pain and would cause pain in the future. Regardless of the plaintiff’s obesity a tort-feasor takes a victim as he finds him and adequate compensation for plaintiff’s pain and suffering, past, present and future will be $50000.00.
* * * The intervening compensation carrier is entitled to reimbursement of compensation paid and medical expenses paid.”

This court can find no merit in the plaintiff’s argument that based on Dr. Han-chey’s opinion he should be awarded damages for loss of future wages. He also urges the court was in error in citing the minimum wage at $2.80 per hour. A review of the Fair Labor Standards, U.S.C.A. 29, § 206(a)(1) reveals that, although the minimum wage may have been less than $2.80 an hour at the time of the accident, at the date of judgment the minimum wage was $3.10 per hour, a considerably higher hourly rate than had been earned by the plaintiff prior to his accident. Because of this, and because of the testimony of Dr. Hanchey establishing the plaintiff could perform some type of work, although not heavy manual work, the trial court judge was correct in his denial of an award for future wage losses.

Neither can this court find the district court abused its much discretion afforded it in the area of damages by awarding the plaintiff $50,000 for pain and suffering. Because of this determination it is not necessary for this court to look to other court awards for comparable injuries, as suggested by plaintiff. Reck v. Stevens, 373 So.2d 498 (La.1979).

For the reasons assigned, the district court judgment is amended inserting the name “Carl Ott, Jr., Poles and Pilings, Inc.,” in all places where the name “Carl Ott, Jr.” appears. In all other respects, the judgment is affirmed, each party to bear his own cost on appeal.

AMENDED AND AFFIRMED.

      . As defendant in the original demand, third party plaintiff in the incidental demand and defendant in intervention.

      . Separately as defendant in the main demand and as intervenor.

      . Although Yarbrough was deceased at the time of trial, the plaintiff had also filed a direct action suit against Liberty as his insurer.