author: DOUCET, Judge.

text:
    Tommie FRAZIER, Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al, Defendants-Appellees.
    No. 7853.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Charles F. Wagner, Pineville, for plaintiff-appellant.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for defendants-appel-lees.
    Bolen & Erwin, Gregory S. Erwin, Alexandria, for intervenor-appellee.
    Before FORET, SWIFT, and DOUCET, JJ.
   DOUCET, Judge.

Tommie Frazier brought this suit to recover damages for personal injuries that he sustained when a 1977 Chevrolet Van that he was driving was rear-ended by a 1970 Peterbilt truck owned by Cotton Brothers Baking Company, Inc. and driven by its employee, Charles Sullivan. The collision occurred on July 2,1978 while plaintiff was stopped at a traffic light at the intersection of Louisiana Highway 28 and Edgewood Drive in Pineville, Louisiana. Sullivan claimed that he was unable to stop because the brakes on the truck had failed without warning.

Plaintiff named Sullivan, Cotton Brothers, and Cotton Brothers’ insurer, United States Fidelity and Guaranty Company, as defendants to the suit. Fireman’s Fund Insurance Company intervened, claiming subrogation to workmen’s compensation benefits paid to plaintiff in the sum of $844.23. The case was tried before a jury, which found: (1) that Sullivan was not negligent, (2) that Cotton Brothers and its insurer were liable for its failure to maintain proper brakes on the truck, (3) that plaintiff was entitled to general damages in the sum of $1,000.00, and (4) that Fireman's Fund was entitled to recover the benefits it had paid to plaintiff. From a judgment rendered in accordance with those findings, plaintiff appeals.

The first issue raised by plaintiff on appeal concerns the trial judge’s instructions to the jury. Plaintiff contends that the trial judge erred in failing to instruct the jury with regard to the applicability of strict liability under LSA-C.C. Art. 2317. He argues that under that theory the jury would also have found Sullivan liable. We agree that the trial judge erred in this respect. See Sikes v. McLean Trucking Co., 383 So.2d 111 (La.App. 3rd Cir. 1980); Loescher v. Parr, 324 So.2d 441 (La.1975); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, we find that plaintiff was not harmed by the error. The record shows that service of process was never made on Sullivan. Thus, he was never made a defendant to this suit, and the trial court was without jurisdiction to render a judgment against him. LSA-C.C.P. Art. 6.

Since judgment cannot be had against Sullivan, the only remaining issue is plaintiff’s demand for an increase in the amount of general damage.

Plaintiff complained of low back pain and intermittent headaches following the accident. Dr. John T. Weiss, an orthopedist, examined him on July 6, 1978 and diagnosed his injury as a lumbar strain. Dr. Weiss advised him to wear a lumbosacral corset and prescribed a mild analgesic and muscle relaxant to ease his pain. On July 8, 1978, Dr. Weiss released him to go back to work, and he has been working since.

Dr. Babson Fresh, a neurosurgeon, examined plaintiff on August 25, 1978, to determine the cause of his intermittent headaches. Some tenderness was found at the base of his skull on the left side, but there were no external signs of swelling, cuts or bruises. Dr. Fresh diagnosed the headaches as post traumatic and found no evidence of permanent neurological impairment.

Dr. Weiss examined plaintiff on two subsequent occasions and found nothing to contradict his earlier diagnosis. Plaintiff is a large man standing six feet five inches tall and weighing 325 pounds. It is Dr. Weiss’ opinion that if plaintiff were to lose approximately seventy pounds, he would no longer suffer the mild pain in his lower back.

It is well settled that an appellate court may not disturb an award made by a trial court unless the record clearly reveals that the trial judge or jury abused its considerable discretion in making the award. LSA-C.C. Art. 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979). In view of the evidence concerning plaintiff’s injuries, all of which indicates that they were far less serious than plaintiff claims, we find no abuse of discretion in this case.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Robert K. FREEMAN, Plaintiff-Appellee, v. TOWN OF MANY, Louisiana et al., Defendant-Appellant.
    No. 7912.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Richie & Richie, John A. Richie, Shreveport, for defendant-appellant.
    Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-appellee.
    Lowther & Boone, Many, for defendant-appellee.
    Before FORET, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

Robert K. Freeman brought this suit to recover damages resulting from the construction of a sewer line by the Town of Many. He named as defendants the Town of Many, Homer 0. Byers, the general contractor for the project, and Wayne Construction & Utility Company, the subcontractor that installed the line. The Town of Many filed a third party demand against the contractor and subcontractor, seeking indemnification for any judgment rendered against it. Following a trial, judgment was rendered in favor of plaintiff and against Homer 0. Byers in the sum of $1,624.40. Plaintiff’s demand against the Town of Many and the Town’s third party demand were dismissed. From that judgment, Byers appeals.

The facts are not in dispute. In the mid-1970’s the Town of Many initiated a project to expand its sewer system. After drawing up plans and specifications for the project, the Town entered into a contract with Homer O. Byers, a general contractor. Byers agreed to complete the planned construction according to the terms of the contract for the sum of $620,722.74. Byers in turn engaged a subcontractor, Wayne Construction & Utility Company, to perform the actual construction of the sewer lines.

The Town obtained a servitude from plaintiff, allowing it to lay a sewer line across his property. Subsequently, employees of the subcontractor went onto plaintiff’s property and dug ditches in which they installed the line. In the process of doing so, they severed the roots of two large oak trees, which eventually died. When they initially attempted to fill the ditches, they also broke a water line. The water supply to plaintiff’s residence was interrupted for five days before the line was repaired, and the filling operations were not resumed until three or four months later. One of the ditches that remained open during the interim was located near plaintiff’s residence. It was approximately four hundred feet long and six to seven feet deep.

The trial judge found that the damage caused by the loss of the trees, the interruption of the water supply to plaintiff’s residence, and the failure to fill the ditches within a reasonable time resulted from the negligent acts of the subcontractor. He concluded that Byers was liable for that negligence under certain provisions of his contract with the Town, which operated in plaintiff’s favor.

On appeal, Byers argues that the trial judge erred in finding that the subcontractor was negligent, and in finding that he is liable to plaintiff under the contract. Alternatively, he argues that if he is liable, the Town should be held solidarily liable with him.

Byers’ contract with the Town of Many required him to take all necessary precautions to prevent damage to property adjacent to the construction site, such as trees, shrubs and utilities. [Contract, § 11.-1] He was obligated to locate subsurface obstructions, such as water lines, and exercise care in order to prevent damage to them. In the event that any public or private structure or utility was damaged in the course of his work, he was obligated to immediately repair it, or have it repaired at his own cost. [Contract, § 17-01(f)] He was also required by the contract to open no more than 100 feet of trench in advance of the pipe laying, unless he was permitted to do so by the project engineer, and in no case was a ditch to be left open overnight. [Contract, § 17 — 06(c)]

The trial judge correctly concluded that these provisions constituted stipulations pour autrui in plaintiff’s favor. LSA-C.C. Art. 1890; Hargroder v. Columbia Gulf Transmission Co., 290 So.2d 874 (La.1974); Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969). The servitude agreement provided that the Town would be liable to plaintiff for damages arising out of its exercise of the servitude. Byers’ promise to satisfy the above conditions served to protect the town from this liability. Andrepont v. Acadia Drilling Co., supra.

The trial court was also correct in concluding that the subcontractor’s performance, which Byers was responsible for under § 6-10 of his contract, fell short of fulfilling these conditions. We note that Byers has argued that the damage to plaintiff’s trees was unavoidable, because he was obligated under his contract to lay the lines where he did. However, we find no evidence in the record to support his allegations that he followed the course designated by the project engineer, and that doing so necessitated severing the roots of the trees.

In view of the above, we conclude that Byers’ contract with the Town provided a proper basis for the judgment rendered against him. We therefore find it unnecessary to discuss the negligence issue, which he has raised.

The only remaining issue is whether the judgment should be amended to hold the Town of Many solidarily liable with Byers. Plaintiff has neither appealed, nor answered the appeal, requesting such relief, and we find that our granting it would not benefit Byers. His breach of his contractual obligations would entitle the Town to indemnification on its third party demand against him. We therefore reject his alternative demand for an amendment to the judgment.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendant-appellant, Homer O. Byers.

AFFIRMED.

      . Wayne Construction & Utility Company is not a party to this suit, however, because citation and service of process were never made on it.


author: CULPEPPER, Judge.

text:
    Vera ROBERTS, Plaintiff and Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant and Appellee.
    No. 7964.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Darrel D. Ryland, Marksville, for plaintiff-appellant.
    Trimble, Randow, Smith & Wilson, James T. Trimble, Jr., Alexandria, Edwards, Ste-fanski & Barousse, Russell K. Zaunbrecher, Crowley, for defendant-appellee.
    Before CULPEPPER, CUTRER and GUIDRY, JJ.
   CULPEPPER, Judge.

The plaintiff, Vera Roberts, filed this suit for damages for personal injuries sustained when she was thrown from a horse. The defendants are Percy Allemand, owner of the horse, and Hartford Accident & Indemnity Company, homeowner’s insurer of Winn Plauche, owner of the premises where the accident occurred. From a judgment dismissing her demands against both defendants, the plaintiff appeals.

Winn Plauche, who operates a business of raising, boarding, training and selling thoroughbred horses, hired the plaintiff to help him with his horses. Her duties consisted of brushing the horses, putting them on a mechanical walker and “ponying” them to cool them down after exercise. On the day of the accident, February 10, 1979, the plaintiff agreed to ride Percy Allemand’s horse, which was being boarded and trained by Mr. Plauche. As the plaintiff rode the horse in an open field, the animal began to gallop and she lost control of the horse. Unable to stop, the plaintiff began trying to dismount the animal, and it threw her as it jumped over a ditch.

The plaintiff contends the trial court erred in holding that coverage by Hartford was excluded by the “business pursuits” and by the “workmen’s compensation” exclusions of its policy.

Plaintiff argues the “business pursuits” exclusion of Hartford’s policy is ambiguous and should be construed against the insurer in such a way as to afford coverage. This contention is without merit. Substantially similar exclusionary clauses in homeowner's policies have been upheld by the courts. Pitre v. Pennsylvania Miller Mutual Insurance Co., 236 So.2d 920 (La.App.3rd Cir.1970); Berry v. Aetna Casualty & Surety Co., 221 So.2d 272 (La.App.2d Cir.1960).

The plaintiff also contends that training of thoroughbred horses was not a business pursuit of the insured, Plauche. The record reveals that although Plauche owned another business, he had been raising and selling horses for six years. It has been recognized that a person may have more than one business. Paige v. Tregre, 283 So.2d 777 (La.App.1st Cir.1973). The evidence establishes that Mr. Allemand was paying Plauche to board and train his horse. The trial court’s determination that, at the time of the accident, Plauche was in the business of boarding and training horses, is not clearly wrong.

The trial court also determined that the workmen’s compensation exclusion also precludes coverage. The plaintiff contends this exclusion is inapplicable because the plaintiff was not injured in the course and scope of her employment. Although riding the thoroughbred was not one of her regular duties, the trial court determined it was incident to her employment. The record indicates that the plaintiff was an employee of Plauche and was paid for the time she worked, including the day of the accident. These factual determinations of the trial court are not clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The plaintiff also contends that the trial court erred in not holding the owner of the horse, Percy Allemand, strictly liable under LSA-C.C. Art. 2321 as defined in Holland v. Buckley, 305 So.2d 113 (La.1974).

This court encountered a somewhat similar situation in Fontenot v. Soileau, 336 So.2d 1006 (La.App.3rd Cir.1976). In Fon-tenot, the plaintiff’s minor son was injured when he was thrown from the defendant employer’s horse while exercising it. The court held that being thrown from a horse was a risk inherent to the employment, and that the employee voluntarily assumed that risk when he accepted employment.

In the instant case, the trial court determined that the plaintiff, an experienced horsewoman, assumed the risk of being thrown when she voluntarily agreed to ride the horse. Assumption of risk has been construed to fall into the category of “fault of the victim”, which is a defense to strict liability under LSA-C.C. Art. 2321. See Fontenot, supra, Daniel v. Cambridge Mutual Fire Insurance Co., 368 So.2d 810 (La. App.2d Cir.1979); Alfonso v. Market Facili ties of Houston, Inc., 356 So.2d 86 (La. App.1st Cir.1978). The trial judge was not clearly wrong in this determination.

The trial court also determined that the accident was caused by plaintiff’s fault in the way she rode the horse. The record clearly supports this conclusion. There is much testimony that the horse was gentle and had been ridden by many persons without difficulty. Something plaintiff did caused the horse to run out of control. Moreover, instead of trying to stay on the horse and control it, plaintiff dropped the reins and took her feet out of the stirrups just prior to falling off. The trial court was not clearly wrong in finding plaintiff was at fault in the way she rode the horse.

In summary, the trial court did not err in holding that the “business pursuits” and “workmen’s compensation” exclusion in Hartford’s policy barred recovery under the policy. There is also no error in holding that recovery from the owner of the horse, Percy Allemand, under the doctrine of strict liability is barred, because the plaintiff both assumed the risk and was guilty of fault which caused the accident.

For the reason assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant, Vera Roberts.

AFFIRMED.

      . This exclusion reads:
      “1. The policy does not apply:
      d. To bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to nonbusiness pursuits or farming;”


author: GUIDRY, Judge.

text:
    ROBERT J. NAQUIN AND ASSOCIATES, INC., Plaintiff-Appellant, v. PORTAGE PLANTATION, INC., Defendant-Appellee.
    No. 7965.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Edward J. Milligan, Jr., Lafayette, for plaintiff-appellant.
    Guillory, McGee & Mayeux, Robert K. Guillory, Eunice, for defendant-appellee.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Robert J. Naquin and Associates, Inc. (hereafter Naquin) brought this suit to collect a real estate commission allegedly owed by Portage Plantation, Inc. (hereafter Portage). Previously, this court considered an appeal in this case from a judgment of the trial court granting defendant’s motion for summary judgment and dismissing plaintiffs suit with prejudice. Robert J. Naquin, Etc. v. Portage Plantation, 372 So.2d 821 (La.App. 3rd Cir. 1979). We reversed and remanded finding there existed a genuine issue of material fact as to whether Naquin was orally authorized to continue acting as agent for Portage beyond the expiration date on an exclusive listing agreement. After remand and a trial on the merits the court found the evidence to be in favor of defendant and dismissed plaintiff’s claim with prejudice. Plaintiff appeals. We affirm.

The only issue is whether the trial court erred in finding there was no oral extension of the term of the original listing agreement.

The record reflects that on February 11, 1977, Portage, represented by its president, Robert K. Guillory, entered into an exclusive listing agreement with Naquin, represented by its president, Robert J. Naquin. The agreement provided for the sale, exchange, or option of a tract of land composed of two (2) sections designated as Section 5, T 5 S R 6 E and Section 32, T 6 S R6 E, totaling 1,297 acres located in St. Landry Parish, Louisiana. The parties agreed that the property would be sold for $800.00 per acre. According to the agreement Naquin, as real estate broker, would be entitled to collect a commission $25,000.00 or two and one-half (2V¿) per cent on the gross amount of the transaction, whichever is less. In addition, the agreement provided that such commission became payable: (1) upon any agreement for or any transfer of title during the term or extension thereof; (2) upon Portage withdrawing the property without Naquin’s consent or upon Portage voluntarily making the property unmarketable during the term or extension thereof; or (3) upon Portage, within ninety (90) days after the expiration of the term or extension thereof, entering into a purchase agreement with anyone whom Naquin had negotiated with prior to the listing agreement’s expiration. The agreement also provided that no offer could be submitted to Portage without first being signed by the offeror or his authorized agent. The listing agreement by its terms expired on March 12, 1977.

On March 16, 1977, Portage entered into a Buy and Sell Agreement wherein Portage agreed to convey 640 acres (Section Five) for $496,000.00 to Warren L. Hensgens and Dennis J. Hensgens. Subsequent thereto, Portage paid Naquin a commission of $12,-500.00, however there is disagreement between the parties regarding under which provision of the agreement the commission was paid. Defendant alleges that the commission was paid to Naquin in accordance with Paragraph 5(a) of the listing agreement which provides:

“5. Compensation to Agent: I hereby agree to pay Agent a fee of $25.000 or two and one half (2Vz) per cent on the gross amount of any transaction, whichever is less, upon any agreement for or transfer of title, during the term hereof or any extension thereof by agent, or through any other person, or by me, or if said property is withdrawn from exchange, sale, lease or option without the consent of Agent, or made unmarketable by my voluntary act during the term hereof or any extension thereof.
(a) If within 90 days after expiration hereof, or any extension thereof, principal enters into an agreement with anyone with whom Agent has had negotiations prior to final expiration, provided I have received notice in writing thereof before or upon expiration of this agreement or any extension thereof.”

On the other hand, plaintiff contends that the commission was paid because the original listing agreement was still in force and effect due to an oral extension of said agreement granted on March 12, 1977. Testimony received at trial indicates that Mr. Naquin telephoned Mr. Guillory on or about March 12, 1977, however the substance of their conversation is the subject of much dispute. According to the defendant, the plaintiff requested an extension of the listing agreement since the agreement was to expire by its terms on March 12, 1977, but Guillory refused to grant such an extension. Defendant testified further that he suggested Naquin submit to him a list of names of those persons whom Naquin had contacted regarding the property during the term of the agreement, thereby protecting his interest in a potential commission as provided in Paragraph 5(a) of the agreement. Subsequently, Mr. Naquin notified Mr. Guillory via “speed letter” dated March 13, 1977 that he was registering particular clients with whom he had negotiated prior to the expiration date of the listing agreement as per paragraph 5(a) of that agreement. Those clients listed therein were Warren and Dennis Hensgens, John Jef-coat, Warren Bruner, and James M. Cunningham. In contrast to Mr. Guillory’s testimony is that of the plaintiff, Mr. Naquin who stated that the defendant granted a verbal extension of the original listing agreement and that subsequent to March 12, 1977, the plaintiff continued to negotiate the sale of the remaining tract of land designated as Section 32. On March 29, 1977, as a result of these continuing negotiations Mr. James M. Cunningham signed an Agreement to Purchase the remainder of the land referred to in the listing agreement for a purchase price of $524,800.00. When presented with this agreement, the defendant on behalf of Portage, refused to sign and withdrew the property from the market. Defendant’s actions at that time form the basis of the instant suit.

Generally, agreements affecting immovable property must be in writing, however, one exception is listing agreements such as the one which is the subject of the instant suit. In the case of Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977), the court held:

“It is well-settled that an agreement listing immovable property for sale with a real estate broker need not be in writing. A contract between seller and agent mav be made orally or a written contract may be chanered orally.” (Emphasis supplied)

Whether or not Naquin has proved the existence of an oral extension of the listing agreement is governed by Louisiana Civil Code Article 2277, which provides:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

Our courts have concluded that the credible witness referred to in Article 2277 may be the plaintiff and that “other corroborating circumstances,” means general corroboration which does not require independent proof of every detail of the witness’s testimony. Morris v. Pratt, 114 La. 98, 38 So. 70 (1905); King v. Jarvis, La.App., 144 So.2d 616 (1962); Samuels, supra. As previously noted, both plaintiff and defendant agree to having a telephone conversation on or about March 12, 1977, however, disagree significantly as to the contents of that conversation. There were no witnesses to the telephone conversation of March 12. Mr. Na-quin testified that he telephoned Guillory to get an oral extension of the listing agreement because he had a purchaser and that the defendant agreed to such an extension. The defendant denies granting an extension of their agreement. To corroborate his testimony, the plaintiff introduced into evidence the “speed letter” to Guillory which listed potential purchasers, the Agreement to Purchase and Sell dated March 16, 1977 pertaining to Section Five, the Agreement to Purchase and Sell dated March 28, 1977 pertaining to Section 32, various telephone bills purporting to show telephone calls made by the plaintiff to the defendant, and letters exchanged by the plaintiff and Mr. James Cunningham concerning the return of a $10,000.00 deposit made by Cunningham in conjunction with the proposed sale of Section 32 as described in the March 28, 1977 agreement.

Written reasons for judgment were not assigned by the trial court, however, it is apparent that the trial court was persuaded neither by the plaintiff’s testimony nor the documents introduced by him to corroborate his testimony. In Cormier v. Douet, 219 La. 915, 54 So.2d 177 (La.1951) the Louisiana Supreme Court stated:

“Since the requirement of Article 2277 R.C.C. is such that it of necessity draws into its legal vortex the sufficiency of proof shown by the record, and since the evidence is correlated with the credibility of the witnesses, the district judge’s conclusions must be accepted, unless they are manifestly erroneous. Barnes v. LeBlanc, 207 La. 989, 22 So.2d 404; Thornton v. Ellinerton, 209 La. 613, 25 So.2d 282; Meridian Land and Mineral Corp. v. Bagents, 211 La. 627, 628, 30 So.2d 563; and Martin v. Martin, 212 La. 1092, 34 So.2d 329.”

Testimony by the opposing parties was in direct conflict regarding the crucial issue of whether or not the defendant granted an oral extension of the listing agreement. The Louisiana Supreme Court in Canter v. Koehring, 283 So.2d 716 (La.1973) commenting on the effect of contradictory testimony and the role of the appellate court in reviewing the factual determination of the trial court stated:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

See also Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

After a careful review of the record, this court concludes that the lower court was not clearly wrong in its factual conclusions.

For the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: DOUCET, Judge. GUIDRY, Judge,

text:
    GUARANTY BANK & TRUST COMPANY OF ALEXANDRIA, LOUISIANA, Plaintiff-Appellee, v. Eddie CARTER, Defendant, and J. W. Slocum, Defendant-Appellant.
    No. 7976.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellant.
    Provosty, Sadler & deLaunay, LeDoux R. Provosty, Jr., Alexandria, for plaintiff-ap-pellee.
    Eddie Carter, Jr., in pro. per.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   DOUCET, Judge.

This is a suit on a promissory note instituted by plaintiff, Guaranty Bank & Trust Company of Alexandria, Louisiana, holder and payee of a note dated February 22, 1978 in the principal sum of $51,820.18, payable 90 days after date with interest at the rate of 8% per annum from maturity until paid and 25% attorney’s fees on principal and interest. The note was co-signed by Eddie Carter, the principal maker, and J. W. Slocum, an accommodation party.

Suit was filed against Carter and Slocum on October 24, 1978. Carter failed to answer, and on September 24,1979, a preliminary default was entered against him. Slocum answered, denying that he was indebted to plaintiff, and filed a reconventional demand against the bank and a third party demand against one of its officers, Gwin LeBlanc, seeking indemnification for any judgment rendered against him. Following a trial, judgment was rendered in favor of the bank and against Carter and Slocum in solido in the amount prayed for. From that judgment, Slocum appeals.

The default judgment against Carter was confirmed at the trial and is now final. The only issue on appeal is the liability of the accommodation party, J. W. Slocum.

The record shows that the note sued upon was executed in connection with a series of loans, which Eddie Carter obtained to purchase automobiles for the inventory of his used car business. J. W. Slocum became an accommodation party because the bank would not lend money to Carter on his signature alone. Slocum alleged in his pleadings that his agreement to become bound with Carter was based on assurances made by Gwin LeBlanc, one of the bank’s vice-presidents. He alleged that LeBlanc agreed to retain the titles to the automobiles that Carter purchased until he sold them and applied the proceeds of the sale to his indebtedness.

At the trial, Slocum attempted to prove by parol evidence that this collateral agreement had been made and that LeBlanc had breached it by releasing titles to Carter without receiving payments from him. The evidence was entered into the record as an offer of proof, but it apparently was not considered by the trial judge in reaching his decision. On appeal, Slocum argues that the trial judge erred in excluding the parol evidence and in failing to find that Le-Blanc’s breach of the alleged agreement resulted in a failure of the consideration for his signing the note.

We find no merit in this argument. Under the facts set out above, the affirmative defense of failure of consideration is clearly inappropriate. No consideration actually flows to an accommodation party. Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450 (La.App. 1st Cir. 1976); CHF Finance Discount “A” Company v. Harris, 188 So.2d 457 (La.App. 4th Cir. 1966). An accommodation party stands in the shoes of the maker, and if the maker could show failure of the consideration flowing to him, then so can those sought to be held as accommodation parties. Fidelity National Bank of Baton Rouge v. Mills, 351 So.2d 800 (La.App. 1st Cir. 1977); CHF Finance Discount “A” Company v. Harris, supra. However, the fact that consideration does not flow to the accommodation party personally is no defense.

What Slocum has attempted to prove is that the bank has impaired collateral for the instrument, such that he was discharged from his obligation. LSA-R.S. 10:3-606. However, he was precluded from using parol evidence to do so. The note specifically provides that it is unsecured, and parol evidence is inadmissible to vary the terms of a written instrument. LSA-C.C. Art. 2276.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the defendant-appellant, J. W. Slocum.

AFFIRMED.

GUIDRY, J., concurs and assigns reasons.

STOKER, J., concurs for the reasons assigned by GUIDRY, J.

GUIDRY, Judge,

concurring.

Although I agree that parole evidence is inadmissible to support a defense of “failure of consideration” urged by an accommodating party where the record reflects that consideration has flowed to the maker, I cannot agree that the parole evidence offered in this case was totally inadmissible. In my view, although inadmissible to establish failure of consideration or that the bank impaired collateral, such that the accommodating party’s obligation was discharged, the evidence offered was admissible to prove that the note was only a part of an entire oral contract between the bank and Slocum. See Gulf States Finance Corp. v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965). I concur in the result reached however, because my examination of the record reflects that the defendant, reconvenor and third party plaintiff, clearly failed to establish by a preponderance of the evidence that Mr. Gwin LeBlanc, Vice-President of the defendant Bank, agreed individually or on behalf of the Bank to retain the titles to the automobiles that Carter purchased until he sold them. The record reflects that Slocum became fully aware that the bank had not retained the car titles, as the bank allegedly agreed to do, by mid-summer of 1977. In spite of this knowledge, Slocum subsequently executed without complaint or protest several renewal notes culminating with the note of February 22, 1978. This circumstance strongly corroborates the fact that nó such agreement existed. Further, in my opinion, the subsequent execution by Slocum of these renewal notes without complaint or protest constituted an effective waiver by him of any rights which he may have enjoyed under any such verbal arrangement. See First National Bank in Center, Texas v. Reglin, 266 So.2d 252 (La.App. 2nd Cir. 1972).

For the above and foregoing reasons I respectfully concur.

      . The judgment of the trial court was silent with regard to Slocum’s reconventional and third party demands, and this silence constitutes a rejection of those demands. LSA-C. C.P. Art. 1915; LeNy v. Friedman, 372 So.2d 721 (La.App. 4th Cir. 1979); Hebert v. Valenti, 235 So.2d 193 (La.App. 4th Cir. 1970); This portion of the judgment has not been appealed. It has therefore become final, and it is not before this Court.


text:
    Wilson J. SAVOIE and Marie P. Savoie, Plaintiffs-Appellants, v. The ESTATE OF Dennis ROGERS Thru its Representatives, Donald D. Landry, Defendants-Appellees.
    No. 7991.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Gerald deLaunay, Lafayette, for plaintiffs-appellants.
    Donald D. Landry, Lafayette, for defendants-appellees.
    Before FORET, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

Plaintiffs, Marie P. Savoie and her son, Wilson J. Savoie, brought this action against the estate of Dennis Rogers to recover funds allegedly given to the decedent prior to his death for the purpose of filing plaintiffs’ 1977 income tax returns and paying the taxes that were due. They appeal a judgment of the district court dismissing their suit because of their failure to satisfy the requirements of the “deadman’s statute”, LSA-R.S. 13:3721-22.

Plaintiffs testified at the trial that for a number of years prior to his death, they hired the decedent, Dennis Rogers, to prepare and file their income tax returns and submit their payments for the taxes that were due. They further testified that in February of 1978, they gave the decedent a total of $9,730.43, after he had informed them that that was the amount of their tax liabilities for 1977.

In addition to presenting uncontra-dicted evidence of the fact that the decedent neither filed their 1977 tax returns nor submitted payments to the Internal Revenue Service in their behalf, plaintiffs introduced three cash receipts executed by the decedent, which show that he received $9,730.43 from them in February of 1978. These receipts contain no reference to the purpose of the payments, however. Thus, they do not in themselves evidence any obligation on the part of the decedent.

Plaintiffs’ only other corroborating evidence was a file that the decedent had kept in connection with the work that he did for them. The material in the file, which consisted of notes on plaintiffs’ income and expenses and blank income tax forms bearing their signatures, supports plaintiffs’ testimony that the decedent had agreed to prepare their returns. However, nothing in the file substantiates their allegation that the decedent had incurred the obligation to pay their taxes for them.

The trial court concluded that parol evidence was admissible under LSA-R.S. 13:3721 because plaintiffs’ suit had been filed within one year of the death of the decedent. However, the court found that plaintiffs’ testimony, which was the only direct evidence of the decedent’s liability for the payment of their taxes, did not satisfy the requirement of LSA-R.S. 13:3722 that the liability “be proved by the testimony of at least one credible witness other than the claimant and other corroborating circumstances”.

Plaintiffs’ first argument on appeal is that the trial court erred in applying LSA-R.S. 13:3722 because their suit sounds in tort, and that provision is not applicable to tort actions under this court’s decision in Honeycutt v. Indiana Lumbermens Mutual Insurance Company, 130 So.2d 770 (La.App. 3rd Cir. 1961). Plaintiffs contend that their suit is based on the decedent’s tortious conversion of their money, rather than on his breach of the agreement to prepare their returns and pay their taxes.

We find no merit in that argument. Neither the allegations of plaintiffs’ petition nor the evidence that they presented at the trial support their argument that this is an action for the wrongful conversion of their property. We believe that the trial court correctly treated this case as an action for breach of contract, to which the deadman’s statute is applicable.

Alternatively, plaintiffs argue that if LSA-R.S. 13:3722 is applicable, the trial court erred in finding that they had failed to meet its requirements. They contend that because they had two individual claims that were joined in one suit, they should be allowed to serve as each other’s “one credible witness other than the claimant”. We disagree.

The purpose of the deadman’s statute is to protect the assets of a deceased person from stale and unfounded claims that the deceased might have refuted. Landry v. Weber, 345 So.2d 11 (La.1977); Taylor v. Bocock, 276 So.2d 347 (La.App. 2nd Cir. 1973). It attempts to accomplish this purpose in cases where parol evidence is admissible by requiring the testimony of at least one person, who does not share the claimant’s interest in the outcome. Clearly the interests of the plaintiffs in this case are the same. Under the evidence that they presented, their claims are indistinguishable. Thus, neither can supply the kind of objective proof that the statute requires.

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . LSA-R.S. 13:3721
      “Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
      “(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
      “(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
      “(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
      “(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
      “The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.”
      LSA-R.S. 13:3722
      “When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.”


author: LABORDE, Judge.

text:
    Linda CRENSHAW et al., Plaintiff-Appellant, v. SERVICE PAINTING COMPANY et al., Defendant-Appellee.
    No. 7999.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Tillman & Mitchell, Jack L. Simms, Lees-ville, for plaintiff-appellant.
    Hall, Lestage & Lestage, H. O. Lestage, III, DeRidder, for defendant-appellee.
    Before DOMENGEAUX, STOKER and LABORDE, JJ.
   LABORDE, Judge.

This is a tort suit against an employer, Boise Southern Company, for damages resulting from the wrongful death of its employee, Tommie Crenshaw. The plaintiff is Crenshaw’s widow, Linda, who sues individually and on behalf of the Crenshaw’s minor children. Boise Southern filed a motion for summary judgment urging that pursuant to LSA-R.S. 23:1032, plaintiff’s exclusive remedy is in workmen’s compensation. The trial court granted Boise Southern’s motion and plaintiff appeals. We affirm.

On March 27, 1979, Tommie Crenshaw was on a scaffold located at Boise Southern’s pulp and paper manufacturing facility. On that same day, Service Painting Company was conducting sandblasting operations nearby. These operations caused sand to accumulate on the walkway of the scaffold. While walking along the scaffold, Crenshaw fell through an opening in the walkway and down to the ground some 40 feet below. Crenshaw died from injuries received in this fall. It is undisputed that at the time of this accident, Crenshaw was an employee of Boise Southern and was engaged in the course and scope of his employment.

Boise Southern’s position is that Tommie Crenshaw was its employee; that he was killed in the course and scope of his employment; that its liability to him or to his survivors lies under Louisiana’s workmen’s compensation laws; and that under LSA-R.S. 23:1032 of those laws, plaintiff’s remedy under workmen’s compensation is an exclusive one. Boise Southern supports its position through an affidavit given by its personnel manager.

Plaintiff’s position is that she is authorized to sue Boise Southern in tort under the “intentional act” exception to employer immunity set forth in LSA-R.S. 23:1032. Plaintiff’s claim is supported by affidavits of two of Crenshaw’s co-workers.

As this matter arises through a motion for summary judgment, we begin by noting that this court in LeBlanc v. Landry, 371 So.2d 1276,1279 (La.App. 3rd Cir. 1979), set forth the following general principles which serve as guidelines in deciding any motion for summary judgment.

“In deciding any motion for summary judgment the following general principles must be borne in mind. A summary judgment is not to be used as a substitute for a full trial of a controverted fact issue which is material to a decision in the case. Where supporting documents of the proponents and opponents of a motion for summary judgment indicate that a genuine issue of material fact may exist, the motion should be denied. McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir. 1975); Berthelot v. Travelers Insurance Company, 304 So.2d 59 (La.App. 1st Cir. 1974). The summary judgment procedure should be used cautiously and sparingly and any reasonable doubt concerning the existence of such should be resolved against the mover and in favor of a full trial on the merits. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir. 1974). Moreover, the fact that the court might conclude that the evidence preponderates in favor of the opponent does not justify the denial of a full trial on the merits to resolve the disputed issue. Dougharty v. Calkraft Paper Co., 335 So.2d 772 (La.App. 3rd Cir. 1976).”

With these guidelines in mind, we proceed to determine whether the pleadings and affidavits present a genuine issue of material fact.

This issue centers around LSA-R.S. 23:1032 which in part provides:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease.”

The above statute is recognized as establishing employer immunity from suit in tort by providing that an employee or his dependent is limited to a suit in workmen’s compensation against the employer. The employer immunity is not absolute however, and a suit in tort against the employer will lie when the employee’s injury results from the “intentional act” of his employer.

Our courts have held that for an act to be intentional under LSA-R.S. 23:1032, the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow. McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3rd Cir. 1980), Guidry v. Aetna Cas. and Sur. Co., 359 So.2d 637 (La.App. 1st Cir. 1978), writ den., 362 So.2d 578 (La.1978); but c.f. Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980) writ granted, 383 So.2d 1263 (1980).

Plaintiff alleges that due to the sandblasting operations being conducted at the plant, the area in which Tommie Cren-shaw was working, including the scaffold he was on, became covered with sand to such an extent that numerous complaints were made to Charlie Johnson, Boise Southern’s Safety Supervisor. (Paragraph 6 of plaintiff’s petition found at Tr. 3) In addition, plaintiff alleges that Boise Southern’s negligence consisted of the following acts:

“1. That defendant conducted sandblasting operations in a careless and negligent manner in failing to take precautionary measures to protect others in the area where their operations were being conducted;
2. That defendant continued it’s sandblasting activity in a careless and negligent manner even after it was informed that the sand was causing safety hazards to those working in the area;
3. That defendant failed to take any action to prevent sand from its sandblasting activity from accumulating on a walkway where it knew others were working;
4. That defendant was negligent in failing to replace missing grate on catwalk where it knew or should have known employees would be walking;
5. That defendant was negligent in allowing sandblasting in the area of the missing grate in that they knew or should have known that the sand from said operations and the missing grate created hazardous working conditions for any workers in that area;
6. That defendant was negligent in failing to replace the missing grate on the scaffold and in failing to take proper measures to prevent sand from accumulating on the scaffold when it knew or should have known employees were working in that area.” (Paragraph 12B of plaintiff’s amending and supplemental petition found at Tr. 8)

Likewise, through her opposition to Boise Southern’s motion for summary judgment, plaintiff reiterates her position and supports her claim with affidavits of two of Tommie Crenshaw’s co-employees who were present at the time of the accident. Both affiants stated that they knew of their own personal knowledge that sandblasting operations were being conducted in the area where Tommie Crenshaw was working; that sand had accumulated in this area; that Crenshaw did not want to work until the sand was cleaned up; and that Cren-shaw reported these unsafe conditions to Boise’s Safety supervisor, Charlie Johnson.

In addition both affiants stated that they, along with three other Boise Southern employees, personally told Charlie Johnson that they were not going to continue working until the sandblasting was stopped and that the sandblasting was stopped, but the sand was not cleaned up, nor were the open grates such as the one Crenshaw fell through covered while men were working in the area. (Tr. 20-21)

Plaintiff cites the case of Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980), writ granted, 383 So.2d 1263 (La.1980) in support of her contention that defendant’s acts or omissions were intentional. This court disagreed with Bazley in McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3rd Cir. 1980) and Citizen v. Theodore Daigle and Brother, Inc., 392 So.2d 741 (La.App. 3rd Cir. 1980). In these cases we cited with approval Guidry v. Aetna Cas. & Sur. Co., 359 So.2d 637 (La.App. 1st Cir. 1978), writ denied, 362 So.2d 578 (La.1978), which held that for an act to be intentional under LSA-R.S. 23:1032: 1) the defendant must have entertained a desire to bring about the result which followed; and 2) he should have believed the result was substantially certain to follow.

Our brothers of the First Circuit, have recently expressed the same view in Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1st Cir. 1980) writ denied, 386 So.2d 359 (La.1980). In Courtney, an employee was electrocuted allegedly because of the failure to place a guard on a chlorine cell containing high voltage electricity. Also, see Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir. 1979); Johnson v. Chicago Mill and Lumber Company, 385 So.2d 878 (La.App. 2nd Cir. 1980); Frazier v. Carl E. Woodward, Inc., 378 So.2d 209 (La.App. 4th Cir. 1979); Johnson v. Narcisse, 373 So.2d 207 (La.App. 4th Cir. 1979).

The facts alleged in the pleadings in the instant suit failed to show that Boise Southern’s acts or omissions were accompanied by the requisite intent necessary to permit recovery in tort, i. e., that in failing to remove the accumulated sand and replace the missing grates causing Crenshaw’s fall, Boise Southern both desired and believed that the result was substantially certain to follow.

For the foregoing reasons, the judgment of the district court granting Boise Southern Company’s motion for summary judgment is affirmed. Costs of this appeal are taxed to Plaintiff-Appellant; all other costs are to await final disposition.

AFFIRMED.

      . Plaintiff sued Service Painting Company and Boise Southern. This appeal concerns only Boise Southern’s motion for summary judgment.

      . These allegations, were added by way of an amended and supplemental petition.


author: FORET, Judge.

text:
    The INDEPENDENT, INC., Plaintiff-Appellee, v. Michael WATSON, Defendant-Appellant.
    No. 8008.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      McBride & Brewster, Glynn Rozas, Lafayette, for defendant-appellant.
    Dragon & Kellner, Victor Kellner, Lafayette, for plaintiff-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   FORET, Judge.

This is an action on open account. The Independent, Inc. (Plaintiff) seeks to recover the sum of $2,371.79 from Michael Watson (Defendant).

The trial court rendered judgment in favor of plaintiff, and defendant appeals. Defendant presents the following issues:

(1) Whether the trial court erred in refusing to allow defendant to amend his answer to conform to the evidence and specifically plead novation, and,
(2) Whether the defendant’s obligation under the open account was extinguished by payment.

FACTS

Plaintiff and defendant entered into a written contract on October 20, 1978, by which defendant was obligated to deliver the plaintiff’s newspaper to certain subscribers. The plaintiff extended credit by allowing defendant to charge the cost of the newspapers which he delivered. Defendant’s credit balance totaled $2,371.79 after ten months of performance under the contract. Defendant executed a promissory note on April 9, 1979, made payable to plaintiff in the amount of $2,678.84. The note was to be paid in monthly installments of $100.00 each until the principal and interest were paid, but defendant defaulted in his payments.

The plaintiff instituted this action on July 26, 1979, seeking recovery on open account instead of the promissory note. Trial of this matter was held on February 12, 1980, and judgment was rendered in favor of plaintiff. Plaintiff was awarded $2,371.79 (the amount owed by defendant on open account) together with legal interest and attorney’s fees. Defendant was granted a devolutive appeal from that judgment.

AMENDMENT OF DEFENDANT’S ANSWER

Defendant sought to amend his answer to conform to the evidence to plead specifically the affirmative defense of novation. This request was made at the end of the trial and was denied by the trial court as coming too late in the proceedings.

The question is whether the trial court abused its discretion in refusing to permit defendant to amend his answer.

LSA-C.C.P. Article 1151 provides, in pertinent part:

“ .... A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.”

There is no evidence of plaintiff’s having given its written consent to defendant’s request to amend his answer.

The general rule as to allowing amendments after an answer is filed is that the trial judge has much discretion in such matters and that his ruling will not be disturbed unless there has been an abuse of the discretion vested in him. Calvary Tabernacle v. Louisiana Central Bank, 384 So.2d 814 (La.App. 3 Cir. 1980); Sikes v. McLean Trucking Company, 383 So.2d 111 (La.App. 3 Cir. 1980); Brooks v. Fondren, 199 So.2d 588 (La.App. 3 Cir. 1967).

This Court, in Calvary Tabernacle v. Louisiana Central Bank, supra, said, at page 816, that:

“In his article, Judge Tate says, ‘In permitting amendment or not, the most important consideration is whether the opponent is unfairly prejudiced.’ In Wallace v. Hanover Insurance Company of New York, supra at p. 120, the court held that it was an abuse of discretion to allow an amendment where the other party did not have adequate time to prepare to meet the new issue or defense. The court there suggests that prejudice may be cured by a continuance. Judge Tate comments that the curative effect of a continuance must be balanced against the prejudice caused by the delay, expense and confusion of a continuance. These factors, he suggests, ‘may outweigh the merit-justice interests which favor it [amendment].’ ”

Here, defendant’s request came upon conclusion of the trial and raised a new affirmative defense of which plaintiff had no prior notice. We find no abuse of the discretion accorded the trial court.

Defendant also argues that evidence had been adduced without objection which tended to show that the debt, upon which plaintiff brought its action, was novated by plaintiff’s acceptance of his promissory note. Therefore, he argues that there was an automatic amendment of his answer to conform to the evidence adduced on the issue of novation.

LSA-C.C.P. Article 1154 governs the amendment of pleadings to conform to the evidence. It reads:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

The court, in Wallace v. Hanover Insurance Company of New York, 164 So.2d 111 (La.App. 1 Cir. 1964), writ refused, 246 La. 598, 165 So.2d 486 (1964), had occasion to interpret LSA-C.C.P. Article 1154 and the federal sources from which it was derived. It concluded that there are two procedures for amending pleadings to conform to the evidence. The first is an amendment requiring no written or oral pleadings as the original pleadings are simply deemed amended to conform to the proof of issues tried by express or implied consent. The second procedure authorizes the court to allow the amendment of pleadings where the evidence offered is objected to.

The first procedure was discussed in Wallace v. Hanover Insurance Company of New York, supra, on page 118, where it was stated:

“Article 1154 embodies the first of the two federal procedures just mentioned. The comments indicate that because of the lack of opportunity to file written amendments when the evidence is introduced without objection, the court may, on motion of the party, allow amendment at any time, even after judgment. This is not startling, as the written amendment is actually unnecessary under both State and Federal systems. The pleadings may be treated as amended once the evidence enlarging them has been received without objection or the written amendment may be filed even after judgment.
In order for 1154 to work, an automatic amendment of the pleadings, it is necessary that the evidence not be pertinent to any other issue raised by the pleadings in the case, and thus it would have been excluded if objected to timely. If the evidence is admissible for any purpose it cannot enlarge the pleadings except by express consent of the opposing party. (See comment B, Article 1154 and cases cited therein.)”

LSA-C.C.P. Article 1005 requires that the answer set forth any affirmative defenses upon which a party will rely. Defendant’s answer failed to set forth the affirmative defense of novation.

However, the rule pertaining to an automatic amendment of the pleadings does apply when evidence of an affirmative defense is adduced without objection from the opposing party. Our Supreme Court, in DLJ of Louisiana # 1 v. Green Thumb, Inc., 376 So.2d 121 (La.1979), recognized this in Footnote 9 on page 122, where the Court stated:

“ ... Generally, affirmative defenses must be raised in the answer of the defendant, see La.Code Civ.P. art. 1005, and cannot be raised by the court sua sponte. Where, however, an affirmative defense has not been pleaded by the defendant but the plaintiff nevertheless fails to object to the introduction of evidence that bears on the affirmative defense and that is not pertinent to any issues raised in the pleadings, the pleadings have been considered to have been enlarged to include the affirmative defense, and the court can act as though the affirmative defense has been pleaded. See Austrum v. Baton Rouge, 282 So.2d 434 (La.1973).”

We have reviewed the record and find that defendant failed to adduce any evidence of a novation without objection, which would be pertinent to that affirma-five defense only, and to no other issues raised in the pleadings and which would have been excluded if objected to timely. Therefore, defendant has failed to meet the test set out in DLJ of Louisiana # 1 v. Green Thumb, Inc., supra, and Wallace v. Hanover Insurance Company of New York, supra, for an automatic amendment of the pleadings under LSA-C.C.P. Article 1154.

We make no finding herein as to whether or not a novation occurred when defendant executed a promissory note in plaintiff’s favor. Suffice it to say that under LSA-C.C. Article 2190, novation is not presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt. While it is true that one of the three ways in which novation takes place is “when a debtor contracts a new debt to his creditor, which new debt is substituted for the old one, which is extinguished”, LSA-C.C. Article 2189, it is also true, as stated in Rains v. Jones, 152 So. 356 (La.App. 2 Cir. 1934): “The mere giving of a note does not work a novation of the debt unless it is so intended... ”.

PAYMENT

Defendant argued that his obligation on open account was extinguished by “payment”, i. e., the promissory note he gave to plaintiff. The question is whether the trial court erred in finding that there had been no payment of the amount due.

Payment is defined by LSA-C.C. Article 2131 as follows:

“Art. 2131. By payment is meant, not only the delivery of a sum of money, when such is the obligation of the contract, but the performance of that which the parties respectively undertook, whether it be to give or to do.”

70 C.J.S. Payment § 13, on page 220, states the general rule that:

“In the absence of an agreement providing otherwise, or the consent of the creditor to receive some other medium, payment may be made only in money.”

The nature and express terms of defendant’s promissory note is that it is nothing more than a promise to pay rather than “payment”.

We hold that the mere giving of a promissory note by a debtor to his creditor fails to extinguish an obligation of the debt- or to pay a certain sum of money in the absence of an express agreement to the contrary.

Payment is an affirmative defense. LSA-C.C. Article 2130; LSA-C.C.P. Article 1005.

Willis v. Continental Casualty Company, 194 So.2d 785, 787 (La.App. 2 Cir. 1967) states:

“The rule is well established in the jurisprudence of this State that a plaintiff in a civil case bears the burden of proof; he is required to establish his claims to a legal certainty by a reasonable preponderance of evidence; and speculation, conjecture, mere possibility, and even unsupported probability are not sufficient to support a judgment. A similar burden rests upon a defendant with respect to affirmative defenses. Where the proof creates only a suspicion, the defense has not been established.”

We find that defendant has failed to meet his burden of proving the pleaded affirmative defense of “payment” as there is insufficient evidence that plaintiff expressly agreed to take defendant’s promissory note in payment of defendant’s indebtedness on open account.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.

      . There is no need to discuss the second procedure as the circumstances which give rise to it are lacking in the case sub judice. The plaintiff only once objected to the introduction of evidence on the grounds that to do so would enlarge the pleadings. The plaintiff argued on objection that the evidence being adduced was relevant to the method of extinguishing obligations known as “payment” which defendant failed to plead in his answer. The trial court properly overruled plaintiffs objection as defendant did indeed plead “payment” there.

      . The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, es-toppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.

      . LSA-C.C. Article 2130 provides that novation is a method of extinguishing an obligation. As such, LSA-C.C.P. Article 1005 requires a defendant to set forth this affirmative defense in his answer.


text:
    Nelson Joseph ANDRUS, Plaintiff-Appellant, v. Dr. Joseph G. PATTON et al., Defendants-Appellees.
    No. 8012.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Kenneth W. Cole, Lafayette, for plaintiff-appellant.
    Pugh & Boudreaux, Charles J. Bou-dreaux, Lafayette, for defendants-appel-lees.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

This is a medical malpractice suit filed by the plaintiff, Nelson Joseph Andrus, against defendants, Drs. Joseph G. Patton, Glynn Granger, Seldon J. Deshotels and their professional liability insurer, St. Paul Fire and Marine Insurance Company. Defendant physicians are business associates who work out of the same office located in Opelousas, Louisiana. Plaintiff’s suit was dismissed by the trial court on a peremptory exception of prescription. Plaintiff appeals that ruling.

The single issue for resolution by this court is whether or not the record supports the trial court’s conclusion that the plaintiff’s cause of action has prescribed. We determine that the record does not sustain the lower court’s decision and reverse.

The facts as disclosed by the record, which consists merely of the pleadings and the plaintiff’s deposition, are as follows:

On March 15, 1975, plaintiff while standing on the side of a highway, was struck by a piece of gravel hurled by a passing automobile. As a result of this injury, plaintiff suffered inflammation of the left leg. On April 1, 1975, plaintiff consulted defendant, Dr. Joseph G. Patton, regarding his leg injury. After examining the plaintiff, Dr. Patton recommended that he undergo a “vein stripping” operation. Dr. Patton performed the recommended procedure on April 17,1975. Immediately after the operation, plaintiff experienced complications including fever, breathing difficulties, and spitting up of blood. Six days following the initial surgical procedure, defendant, Dr. Seldon J. Deshotels, informed plaintiff that he must undergo a “President Nixon operation” to correct the problems which occurred after the “vein stripping” procedure. On April 23,1975, Drs. Deshotels and Gran-ger performed a lower vena cava ligation, tying off the major vein to the plaintiff’s heart. Plaintiff remained in the hospital until discharge on or about May 17, 1975. Plaintiff filed suit against defendant on April 14, 1978. The aforementioned dates are the only dates noted in the record with specificity.

According to the plaintiff’s deposition he experienced continuous swelling of his left breast, enlargement of his right leg and pain in both his chest and legs after discharge from the hospital. Plaintiff states that he continued to see Drs. Patton and Deshotels for “a long, long time”. Plaintiff continued to receive medical care from Dr. Patton until such time as Dr. Patton informed him that he could do nothing more for him. Plaintiff testified that he then sought medical advice from a Dr. Mnayer, a cardiologist. According to the plaintiff, he first consulted Dr. Mnayer approximately twelve to fifteen months prior to the taking of his deposition on May 16, 1979, or in other words, some time between January 1978 and May 1978. It was during this time that plaintiff states he first suspected that the operations were performed unnecessarily and improperly. Plaintiff testified that Dr. Mnayer told him that the vena cava ligation procedure should not have been necessary following a “vein stripping” operation. Dr. Mnayer, recommended that plaintiff consult with Dr. Cedric Dauphin regarding his medical condition. At that time, plaintiff also experienced prostate problems and decreased libido. Dr. Dauphin examined plaintiff and conducted a series of tests to determine the proper course of treatment of plaintiff’s condition. He then prescribed fluid pills and certain medication to relieve plaintiff’s loss of libido. Plaintiff testified that he consulted numerous physicians concerning his medical condition at about the same time he consulted with Drs. Mnayer and Dauphin. According to plaintiff during this period of time he was examined and/or treated by Dr. Charles Fontenot, a Dr. Vidrine, a Dr. deBlanc, and a Dr. Lockett all of whom informed him that the second operation was unnecessary.

The applicable statute on prescription in medical malpractice actions is LSA-R.S. 9:5628 which provides in pertinent part:

“A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.”

Although the cited statute was adopted subsequent to the alleged acts of malpractice, the general rule is that statutes of prescription are remedial in nature and are applied retroactively. Lott v. Haley, 370 So.2d 521 (La.1979).

The issue of prescription relative to medical malpractice actions has been the subject of a number of recent Louisiana Supreme Court decisions. Most notable of these decisions are Young v. Clement, 367 So.2d 828 (La.1979) and Cordova v. Hartford Accident and Indemnity Company and Dr. A and Dr. B, 387 So.2d 574 (La.1980). In Young, supra, the Supreme Court stated, “Prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring a malpractice action as long as such ignorance is not willful and does not result from his neglect.” Henson v. St. Paul Fire & Marine Insurance Co., 363 So.2d 711 (La.1978); Dean v. Hercules Incorporated, 328 So.2d 69 (La.1976); Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (La.1972); Penn v. Inferno Manufacturing, 199 So.2d 210 (La.App.), writ den. 251 La. 27, 202 So.2d 649 (1967); Walter v. Caffall, 192 La. 447, 188 So. 137 (La.1939); Comment, The Scope of the Maxim Contra Non Valentem in Louisiana, 12 Tul.L.Rev. 244 (1938).

The import of the court’s statement in Young, supra, was both clarified and emphasized in Cordova, supra. In the latter case, the plaintiff, Raymond Cordova, was admitted to the hospital on April 27,1975 to undergo three relatively simple surgical procedures: a vasectomy, a hydrocelectomy, and a left inguinal hernioplasty. Ten days following the surgery, Cordova experienced swelling of the right testicle which his physician dismissed as an expected result of the initial surgery. Approximately six days later, Cordova contacted his doctor’s office complaining of fever, pain, tenderness, and swelling of the right testicle. Plaintiff’s condition was diagnosed as a right testicular abscess which required the removal of plaintiff’s right testicle. About three weeks later, plaintiff resumed normal sexual relations with his wife. For some time thereafter, plaintiff had no libido problems. Gradually, however, he began experiencing a decline in his sex drive. Over a period of months following the second surgery, plaintiff suffered from depression and began to notice that his left testicle was shrinking in size. Plaintiff returned to his doctor with these complaints and was treated for minimal prostatitis and loss of sexual drive. On June 22, 1976, approximately one year and two months after the initial surgery, plaintiff complained to the doctor of frank impotence and learned that his left testicle had almost completely atrophied. Cordova asserted that it was not until this time that he realized his problems resulted from malpractice. When questioned, Cordova admitted that within one year of the surgery his left testicle had shrunk to fifty percent of its normal size. The appellate court, 378 So.2d 1088 (La.App. 3rd Cir. 1980), concluded that by that time (March, 1976, more than one year prior to service of the lawsuit on March 21, 1977) the plaintiff knew or should have known sufficient facts to excite his attention and put him on inquiry that the operation performed by the defendant doctors may have been performed negligently. The Louisiana Supreme Court in reversing the appellate court stated:

“Plaintiff’s failure to connect the gradual shrinkage of his left testicle and decline of interest in sex with an operation performed ten months previously was not the result of neglect or willful ignorance The law does not impose upon a layman the obligation to self-diagnose a psychopathological condition which reproductive biologists themselves do not fully understand. Plaintiff had confidence in his physicians’ skill and judgment.”

The Cordova court further commented,

“... The mere apprehension by plaintiff that ‘something was wrong’ is not sufficient to start prescription unless plaintiff knew or should have known by exercising reasonable diligence that there was a reasonable possibility that his problem condition, the loss of libido and/or impotence, may have been caused by acts of malpractice.”

In comparing the factual circumstances of the case at bar with those in Cordova, it seems evident that the plaintiff herein cannot be held to have knowledge of his entitlement to bring a malpractice suit against the defendants until such time as he was informed nothing further could be done for him and he consulted with other medical practitioners who allegedly informed him that the second operation was unnecessary. It is noteworthy that the plaintiff in Cordo-va was an intelligent, knowledgeable, sophisticated person who had previous experience with physicians, hospitals, and surgical procedures. Furthermore, at the time of trial, Mr. Cordova was employed in a professional capacity as an administrative assistant to a United States Congressman. In the instant case, plaintiff testified that he quit school in the fifth grade. Prior to becoming disabled via a work-related injury, plaintiff was employed as a common laborer. Plaintiff Andrus had no prior experience with surgical procedures that would provide him with any special insight into the possible causes of his malady. In fact, plaintiff testified that following his initial surgery, he inquired of medical personnel as to why he was experiencing so many post-operative difficulties and they informed him his problems were caused by a throat infection. Plaintiff continued to consult the defendants regarding his condition for “a long, long time” and did not seek advice from other physicians until defendants told him they could do nothing more for him. In light of Cordova, supra, and Young, supra, this court cannot say that this plaintiff was guilty of neglect or willful ignorance in not determining sooner that he was entitled to bring a malpractice action. The plaintiff herein is neither well-educated nor knowledgeable in the procedures and techniques of modern medicine. He, too, had confidence in his physicians’ skill and judgment. Invoking the standard set out in Cordova, this court cannot say that the plaintiff failed to exercise reasonable diligence in ascertaining the cause of his continued problems nor that he possessed more than a “mere apprehension” that “something was wrong”.

Defendants submit that it is well-settled that when a claim is prescribed on the face of the petition, the burden is on the plaintiff to establish an interruption or suspension of the prescriptive period. Hunter v. Sisters of Charity, 236 So.2d 565 (La.App. 1st Cir. 1979, rehearing denied, 1970); Steel v. Aetna Life and Casualty, 304 So.2d 861 (La.App. 3rd Cir. 1974, rehearing denied, 1975); Marcel v. Hospital Corporation of the Sisters of Saint Joseph, et al., 322 So.2d 302 (La.App. 1st Cir. 1975, rehearing denied, 1975). Defendants urge that the plaintiff has failed to sustain this burden of proof. We acknowledge the general rule as stated by defendants, however, we determine, for the reasons stated herein, that plaintiff did meet his burden of proof. As previously noted, the record consists of only the pleadings and the plaintiff’s deposition. Plaintiff stated in his petition that he only recently became aware of reasons to suspect that his medical treatment by the defendants was improper. When deposed, plaintiff indicated that he failed to make the causal connection between the treatment provided by the defendants and his subsequent physical ailments until such time as he consulted with other medical practitioners. Plaintiff’s uncontroverted testimony reflects that he consulted with physicians other than the defendants some time between January 1978 and May 1978. As previously noted, plaintiff filed the instant suit on April 14, 1978 clearly “... within one year from the date of the discovery of the alleged act, omission, or neglect, ...” as provided in the statute applicable to medical malpractice actions. Defendants offered no countervailing evidence to refute plaintiff’s testimony, therefore we determine that the plaintiff sustained his burden of proof.

For the above and foregoing reasons, the judgment of the trial court granting defendants’ exception of prescription is reversed and the case is remanded to the trial court for further proceedings. All costs of this appeal are assessed against the defendants-appellees. Assessment of costs in the trial court must await a final judgment there.

REVERSED AND REMANDED.

      . Our decision in the instant action should not be interpreted as holding that the running of prescription in medical malpractice actions is triggered only after plaintiff is informed by other medical practitioners that his physical ailment may have resulted from malpractice.


text:
    Hardie JENNINGS, Plaintiff-Appellant, v. CITY OF ALEXANDRIA, Defendant-Appellee.
    No. 8019.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Ward-Steinman & Karst, C. Edward Karst, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, H. B. Gist, Jr., Alexandria, for defendant-ap-pellee.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

In this tort suit plaintiff seeks recovery of damages from the City of Alexandria. After trial, for oral reasons, judgment was rendered and signed dismissing plaintiff’s demands at his cost. Plaintiff appeals.

In support of his demand plaintiff alleges by petition that on or about August 23, 1979, he was driving on Swarthmore Street Alley in the City of Alexandria, “when his automobile was struck by a sewer line manhole which protruded above the thoroughfare”. He alleges further that the accident was “caused solely through the negligence of the City of Alexandria in failing to properly maintain the right of way”. The City filed answer generally denying the allegations of plaintiff’s petition and by way of further answer pleaded the contributory negligence of the plaintiff.

The only evidence presented for the trial court’s consideration was the testimony of plaintiff and his wife, the latter testifying only in regard to the alleged pain and suffering endured by plaintiff. Mr. Jennings testified as follows regarding the accident and its cause:

“Q. Okay. Now, approximately — Weil, let me ask you this. After you entered the alley what happened?
A. Well, I turned in kind of slow. When it happened — I don’t know what happened, but I thought a tree fell on the car. And, when I went to get out the car — I disremember how it was, but I seen it wasn't nothing on the car. I begin to look down then I see that one side of the car was leaned over — and I started to walk away for some help, and I turned — went back to look. My motor was still running. I cut the motor off, but I didn’t realize that windshield of the car, my head had broke it — the windshield out, but I didn’t know the lens was out of my glasses until I had got to a telephone to call my wife. She came out there. She said, ‘What’s wrong with your glasses.’ And I was walking around with my glasses on and I didn’t have no lens in my glasses.
Q. Okay. Now, was — how, how was your car moved from the, from the alley?
A. We — I pushed the car off of this thing — back myself then — when the po lice come there, me and him pushed it back. He had some other fellow with him and — they got the fan belt back on— and he offered to carry me to the hospital the ’mergency room. I didn’t want to go cause I didn’t have any money. And I, I had to carry one of — a member of my family there just before then and I know what it cost. And I — he wanted to call a wrecker for the car. I didn’t call a wrecker for the car because I didn’t have wrecker fees. I knew I’d lose my car.
Q. Now, when is the first time that you saw what it was that caused the damage to your automobile?
A. When I pushed my car off of it.
Q. Now, you said your automobile was damaged. Mr. Jennings I want to show you this one page document, Eskew Towing and Frame Service, and ask you if you can identify it?
A. Yeah, this the one that he gave me.
Q. Is this to repair your car?
A. Yes. Yes.
Q. For the damages that were done by hitting that manhole cover?
A. Yes, sir. Yes, sir.
BY MR. KARST: Your Honor, I think we agreed—
BY MR. GIST: I’m going to object to — to the questions. I don’t think there’s been anything shown yet as to what caused the damage.
BY MR. KARST: I thought that we had agreed at the pretrial, Your Honor, that we would introduce these things.
BY MR. GIST: I’m not objecting to the document, I’m objecting to the form of the question.
BY THE COURT: The question will have to be rephrased.”

The above constitutes the entirety of the evidence presented on behalf of plaintiff to establish the cause of accident and the alleged responsibility of the defendant therefor.

The attorney for defendant declined the offer to cross-examine plaintiff and his wife whereupon plaintiff rested his case. Thereafter defendant rested its case with the following comment.

“BY MR GIST: Your Honor, I don’t think the City of Alexandria has anything to put on. I am kind of at a loss right now myself in this case. I, (sic) I think the City rests, Your Honor.”

Following the close of the case counsel for both parties were allowed the privilege of oral argument. In his argument able counsel for defendant urged that the evidence presented failed to establish what happened to plaintiff’s car other than it stopped. Specifically, defense counsel urged:

“There’s been nothing talked about (sic) about a manhole cover. There’s been nothing talked about as to why the car stopped, other than it stopped because Mr. Jennings thought a tree fell on it.”

At the close of defendant’s argument the following colloquy ensued between the court and counsel for both parties:

“BY MR. KARST: If my memory serves me, Your Honor, I asked Mr. Jennings when he first noticed what had actually caused it. He said, when they moved the car he saw the manhole with the cover protruding. That’s what I recall him saying.
BY MR. GIST: No, sir, I don’t think so. Your Honor is the judge of that.
BY MR. KARST: Regardless, Your Hon- or, I don’t think there’s any question about that that’s what caused it.
BY THE COURT: I’ll listen to Mr. Jennings testimony again, but I don’t recall there being anything said about what this car hit. Mr. Jennings said he thought a tree hit him. (Interruption)
BY MR. JENNINGS: I hit the manhole when I (Interrupted)
BY THE COURT: Well, wait a minute now. Wait. Excuse me Mr. Jennings, I understand but I’ve got to go by what evidence I’ve heard, and I don’t — I’ll listen to his testimony again, but I don’t recall anything being said about what the man hit.
BY MR. KARST: That’s fine, Your Hon- or. He recalls having said the manhole cover. I thought I asked him.
BY THE COURT: I’ll listen to it again, but I don’t recall it, but I will listen to the testimony again carefully.
BY MR. KARST: Well, Your Honor, under the circumstances I wonder if it would be permissable to, you know, ask for a re-opening to get the testimony in the interest of justice and judicial economy?
BY MR. GIST: Your Honor, I object to that. I, I think the case—the plaintiff has rested and we’ve rested. I think the evidence has been submitted to the Court. Whatever evidence has been submitted is in the record.
BY THE COURT: I don’t think you can reopen at this point Mr. Karst.
BY MR. KARST: Well, I’ve had ’em reopened on me in federal court, Your Hon- or.
BY THE COURT: I understand.
BY MR. KARST: When deficiencies were pointed. That’s my only other experience with it. In the event that—I think it’s within the discretion of the Court, though I have no authority.
BY THE COURT: Well, I’ll look in the book on that one, too, but I don’t believe at this point having rested—the defense has rested, and no rebuttal. I don’t believe you can reopen. I think it’s fully sumitted. (sic) I’ll look up the law and see what it is, and I’ll listen to Mr. Jennings’ testimony on it.”

On appeal plaintiff urges that the trial court erred in dismissing his demands and in refusing to re-open the case upon timely motion.

We discern from the record that plaintiff moved for a re-opening of the case for the sole purpose of having plaintiff testify that the object with which his car collided was a sewer manhole which protruded above the level of Swarthmore Alley.

The decision whether or not to reopen a case for production of additional evidence after all parties have rested is within the sound discretion of the trial court and, unless there has been a showing of abuse of discretion the trial judge’s decision will not be disturbed on appeal. Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970), writs refused, 256 La. 266, 236 So.2d 36; Yeutter v. Lewis, 334 So.2d 728 (La. App. 3rd Cir. 1976); Rawls v. Damare, 377 So.2d 1376 (La.App. 4th Cir. 1979), writs refused, 380 So.2d 72 (La.1980).

We conclude that under the particular circumstances of this case the trial court did not err in refusing to reopen the case. We so determine because even if this additional fact were established plaintiff’s demands must be rejected.

The plaintiff in a civil action bears the burden of proving by a preponderance of the evidence every element of fact essential to his recovery. Proof which establishes only possibility, speculation or unsupported probability is not sufficient to establish a claim. Thibodeaux v. St. Joseph Hospital, 276 So.2d 703 (La.App. 1st Cir. 1973); Johnson v. Travelers Indemnity Co., 309 So.2d 357 (La.App. 2nd Cir. 1975), writ denied, 313 So.2d 604 (La.1975); Mayes v. McKeithen, 213 So.2d 340 (La.App. 1st Cir. 1968), writ refused 215 So.2d 130 (La.1968), certiorari denied, 396 U.S. 868, 90 S.Ct. 108, 24 L.Ed.2d 121.

Plaintiff seeks recovery of damages under authority of LSA-C.C. Article 2315. Considering the allegations of plaintiff’s petition and the provisions of the cited article, as judicially interpreted, plaintiff is entitled to judgment against defendant only upon proof that defendant was negligent or that defendant is responsible in damages to plaintiff under the provisions of LSA-C.C. Article 2317.

There is absolutely nothing in the record to establish that the accident of which plaintiff complains was caused by negligent acts or omissions on the part of defendant or its employees. Additionally, the record contains no proof whatever that “Swarth-more Alley”, on which plaintiff was traveling at the time of accident, is a public street. However, even if it be assumed that plaintiff was traveling on a public street the record contains no proof that a dangerous condition existed thereon. Assuming arguendo that a sewer manhole is located in Swarthmore Alley and does protrude above its level, there is no evidence which establishes the location of the manhole or that the manhole protrudes above the level of the street to a height which causes a dangerous condition. Finally, assuming arguendo that a dangerous condition did exist in Swarthmore Alley there is no evidence in the record to establish that defendant had actual or constructive knowledge of such dangerous condition. Considering the above it is obvious that plaintiff has failed to establish by a preponderance of the evidence the elements necessary to hold defendant liable on the ground of negligence.

Although our Supreme Court recently determined in Jones v. The City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980) Supreme Court Docket No. 66480, that municipalities and other public bodies may be held liable for damages caused by things in their custody, it is clear that plaintiff has failed to establish by a preponderance of evidence the elements necessary for attaching liability to the defendant under the provisions of LSA-C.C. Article 2317. In Jones, supra, the court set forth the elements of proof necessary for establishment of liability under Article 2317 as follows:

"Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2317 need not prove that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect. Loescher v. Parr, supra, at 446-447; Verlander, Article 2317 Liability: An Analysis of Louisiana Jurisprudence Since Loescher v. Parr, 25 Loyola L.Rev. 263 (1979).”

An examination of the record in this case clearly shows that plaintiff failed to make the necessary proof for application of Article 2317. First and foremost there is no proof in the record that Swarthmore Alley is a public street. Even if it be assumed arguendo that a sewer manhole is located in the alley there is no proof whatever that such was in the care or custody of defendant. Finally, as previously stated, there is no proof that the location and protrusion of the manhole above the level of the alley was such as to create an unreasonably dangerous condition to the motoring public.

For the foregoing reasons we determine that the trial court did not err in dismissing plaintiff’s suit nor did the court abuse its discretion in refusing to re-open the case following the close of evidence.

The judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.