author: FORET, Judge.

text:
    Elmer NAQUIN, et al., Plaintiffs-Appellants, v. Henry J. SINGLETON, et al., Defendants-Appellees.
    No. 82-53.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Domengeaux & Wright, Ross A. Brup-bacher, Lafayette, for plaintiffs-appellants.
    Roy, Forrest & Lopresto, L. Albert Forrest, Gibbens & Blackwell, John Blackwell, New Iberia, Davidson, Meaux, Sonnier & Roy, John E. McElligott, Jr., Lafayette, for defendants-appellees.
    Before FORET, STOKER and DOUCET, JJ.
   FORET, Judge.

This is an appeal from one of two tort actions consolidated for trial in the court below. In Civil Docket No. 31,878, the trial court, after trial, rendered judgment in favor of Wilson Lalonde (Mr. Lalonde) and against Elmer Naquin (Mr. Naquin), as administrator of the estate of his minor daughter, Patty Naquin (Patty), and United States Fidelity & Guaranty Insurance Company (USF&G), in solido, in the amount of $750.00 in general damages and $975.20 in special damages, with interest on those amounts from date of judicial demand, until paid. Also, in Civil Docket No. 31,878, the trial court rendered judgment in favor of Mrs. Wilson Lalonde (Mrs. Lalonde) and against Mr. Naquin, as administrator of the estate of his minor daughter, Patty, and USF&G in the amount of $12,000.00 in general damages and $548.48 in special damages, together with legal interest on those amounts from date of judicial demand, until paid. The trial court rejected all other claims made by Mr. and Mrs. Lalonde. The trial court also recognized the claim of Allstate Insurance Company (Allstate) for reimbursement in the amount of $2,241.35, which it had paid to Mr. and Mrs. Lalonde for the damages they sustained pursuant to the provisions of a policy of automobile liability insurance it had issued to them.

In Civil Docket No. 31,975 (the action in which this appeal is taken), the trial court rendered judgment in favor of Henry J. Singleton (Singleton), Mr. & Mrs. Lalonde, State Farm Mutual Automobile Insurance Company (State Farm), Allstate, and USF&G, rejecting the demands of Mr. Na-quin, made against them as defendants to that action, on behalf of the estate of his minor daughter, Patty.

Mr. Naquin and Patty appeal devolutively from the trial court’s judgment and raise the following issues:

(1) Whether the trial court committed manifest error in finding no negligence on the part of Singleton, which was a proximate cause of the injuries suffered by Patty;
(2) Whether the trial court committed manifest error in finding no negligence on the part of Mr. Lalonde, which was a proximate cause of the injuries suffered by Patty;
(3) Whether the trial court committed manifest error in finding Patty guilty of negligence in the operation of the automobile which she was driving;
(4) Whether the trial court committed manifest error in finding that Patty had failed to exculpate herself from her negligent conduct;
(5) Whether the trial court erred in failing to consider the opinion of Mr. Lalonde as to the cause of Patty’s conduct, which it subsequently found to constitute negligence on her part; and,
(6) As a result of all of the above, whether the trial court should have declared the amount of uninsured motorist coverage available under the USF&G policy issued to Mr. Naquin, and determined the amount of damages sustained by Patty for her personal injuries, which are alleged to have resulted from the negligence of Singleton and/or Mr. Lalonde.

FACTS

We have reviewed the record and are in complete agreement with the trial court’s findings of fact, and its conclusion of law and reasons for judgment. The trial court rendered an excellent written opinion in this case, which we adopt as our own. That opinion reads as follows:

“FINDING OF FACT

At trial of these consolidated matters on September 28th and 29th, 1981, the following facts necessary for their determination were established:

On February 12, 1979, at approximately 4:30 PM, three vehicles converged upon the intersection of Louisiana Highway 328 and Semere Road which forms a T intersection therewith from the south at an angle of fifteen degrees, in St. Martin Parish. The Singleton automobile, being operated by Henry J. Singleton with Bennett Cormier as a passenger, was operated northward on Semere Road to the intersection, stopped, thence made a right turn onto Highway 328 to proceed in an easterly direction. The Lalonde automobile, with Mr. Lalonde driving and Mrs. Lalonde as a passenger, was being operated in an easterly direction on Highway 328. The automobile owned by Elmer Naquin and operated by his sixteen-year-old daughter with his permission and consent was being driven westerly on Highway 328. It was daylight, the weather was clear and the road surfaces were dry. The Lalonde vehicle was proceeding at approximately 50 miles per hour.

As Mr. Singleton turned, he made a wide right turn coming near to or momentarily crossing slightly over the center line of Highway 328. At that point, Ms. Naquin drove onto the shoulder of Highway 328 on its northerly side at a point approximately 180 feet east of the extended center line of Semere Road. All four wheels left the paved portion of the road and she traveled on the north shoulder and in the very shallow ditch. After traveling approximately 220 to 230 feet her vehicle turned left out of the ditch and began to move in a counter clockwise direction coming entirely across Highway 328 and being struck broadside by the Lalonde vehicle entirely in the eastbound lane of travel of Highway 328 at a point 40 to 50 feet west of the extended center line of the Semere Road.

Ms. Naquin did not see any vehicle approaching her until she saw a vehicle which she cannot identify coming at her head on and very fast and she turned to the right ending up on the shoulder and in the ditch. As she approached the intersection she did not see the Lalonde vehicle approaching nor did she see the Singleton vehicle making its turn.

There was no obstruction to Ms. Naquin’s view which would have prevented her from seeing the Singleton vehicle stopped prior to entering the intersection or upon entering the intersection, nor was there any obstruction which would have prevented her seeing the approaching Lalonde vehicle.

Ms. Naquin drove onto the north shoulder of the road contemporaneously with Mr. Singleton making his turn.

At no point was Mr. Lalonde’s view of the Naquin vehicle ever obstructed by the Singleton vehicle.

Mr. Lalonde did not consider that an accident would occur until the Naquin vehicle suddenly veered from the north shoulder and ditch and began coming directly across the highway into his lane of travel. At that point he attempted to apply his brakes but the collision was simultaneous with this attempt.

Mrs. Lalonde’s vision had been poor all of her life and is blurred at a distance.

Mrs. Lalonde was taken to the emergency room of Lafayette General Hospital where she was seen by Dr. Longo. She was found to have a four centimeter laceration of her scalp, two lacerations of the bridge of her nose, a compound fracture of the nasal bones, an abrasion of her neck, tenderness in her left flank, and multiple abrasions and lacerations of her left forearm, many of them still containing small particles of glass.

Dr. Longo sutured the head wound using twelve sutures, repaired the lacerations of the bridge of the nose using five sutures and repaired the lacerations of the elbow and forearm using four sutures. Mrs. Lal-onde was admitted to the hospital where she remained until February 15th and during that period a foreign body was removed from one of her fingers. She was treated by Dr. LeBlanc, an eye, ear, nose and throat specialist, and Dr. Longo, a general surgeon. On February 14th, Dr. LeBlanc reduced the fractures of the nasal bones under a local anesthetic. During her period of hospitalization, Mrs. Lalonde suffered moderate to severe pain and had some difficulty in breathing.

She was seen by Dr. Longo four times following her discharge from the hospital and all the problems for which Dr. Longo treated her had disappeared by the time she was discharged on June 14th. On that date she complained of headaches and stiffness in her elbow but she was taking no medication. Dr. LeBlanc treated her for the headaches but she related to Dr. Longo, in direct contradiction of her testimony on the witness stand, that for a period of twelve years prior to this accident she had suffered persistent frequent headaches following a hysterectomy.

Swelling from her nasal injuries disappeared in approximately two weeks and by February the 14th, she was doing quite well. However, she now has “floaters” in her eyes which are primarily a nuisance and do not seriously affect vision. They were not present prior to the accident. The cause of this phenomenon is unknown but Dr. LeBlanc feels that the trauma of the accident could have been the cause in her case since she denies experiencing this phenomenon prior to the accident.

Mrs. Lalonde’s corrected vision is 20-40 in each eye which means that she had lost approximately 30 to 40 percent of normal vision before the accident.

The difficulties with her nose had entirely disappeared in April of 1979 and her vision was restored after the accident to her pre-accident condition. However, the floaters persisted.

Mr. Lalonde sustained a bruise to his right upper arm and mild chest pain. All x-rays were negative and he was completely asymptomatic by March 12, 1979 and capable of returning to his regular work in the oilfield. Only conservative treatment was used.

Ms. Naquin suffered numerous life-threatening and extremely painful injuries but in view of the previous findings of fact made by the Court, they will not be detailed here.

The Naquin vehicle was insured by United States Fidelity and Guaranty Company by a policy of public liability insurance with the following limits:

Bodily injury, $250,000.00 per person— $500,000.00 per accident
Property damage, $100,000.00 Uninsured motorists coverage $5,000.00
per person $10,000.00 per accident Medical payments $5,000.00

The Lalonde vehicle was insured by Allstate Insurance Company with a like policy providing the following limits:

Bodily injury, $50,000.00 per person— $100,000.00 per accident
Property damage, $25,000.00
Uninsured motorists coverage $50,000.00 per person $100,000.00 per accident
Medical payments coverage $2,000.00 per person

The Singleton vehicle was insured by State Farm Insurance Company under a like policy providing the following limits:

Bodily injury, $5,000.00 per person — $10,-000.00 per accident
Property damage, $5,000.00

Mrs. Lalonde incurred expenses for the treatment of injuries sustained by her in this accident in the total amount of $2,545.48. Mr. Lalonde incurred like expenses for injuries which he sustained in the amount of $288.35.

Of these amounts Allstate Insurance Company paid under the medical payments portion of its policy on behalf of Mr. and Mrs. Lalonde $2,241.35.

Mr. Lalonde, as a result of the accident, missed the equivalent of fourteen days of work during which period, had he been able to work, his net take-home pay would have been $975.20.

CONCLUSIONS OF LAW AND REASONS FOR JUDGMENT

The key factual issue is whether or not the Singleton vehicle crossed the center line so as to justify Ms. Naquin’s driving off of the traveled portion of the road. The evidence on this point is in extreme conflict. Ms. Naquin testified that she saw a vehicle (unidentified) coming right toward her at a high rate of speed. (The Singleton vehicle was moving slowly. The Lalonde vehicle may have appeared to be moving rapidly and was indeed coming at her at one point). She could not tell whether it was turning or coming straight ahead. She did not see it previously to the time that it was seen by her in her lane.

Mr. Singleton and his passenger testified that while the Singleton vehicle approached near the center line it did not cross the center line. Mr. and Mrs. Lalonde testified that they were unable to say one way or the other. They both contended that it came near to the center line. However, Mr. Lal-onde at the hospital following the incident, stated to the officer and others that the Singleton vehicle had crossed the center line. It is possible, however, judging from the testimony of those witnesses as a whole, that what Mr. Lalonde stated was his conclusion that Mr. Singleton had caused the accident and from this those witnesses have concluded that his statement was that Singleton crossed the center line. Suffice it to say that Ms. Naquin and the Lalondes are the plaintiffs and they bear the burden of proving their case by a preponderance of the evidence. I do not find that a preponderance of the evidence establishes that the Singleton vehicle crossed the center line.

Inasmuch as the accident between the Naquin and Lalonde vehicles occurred entirely in the Lalonde’s lane of travel, it is presumed that the accident was caused through the fault of Ms. Naquin and it is her burden to exculpate herself from that position and show herself free from fault. Simon v. Ford Motor Company, 282 So.2d 126 (La.1973). I find that she has failed to do so. To begin with, her own testimony that she did not see the vehicle (presumed to be the Singleton vehicle) until it was in her lane of travel indicates contributory negligence on her part. There is no reason why she could not have seen it turning into Highway 328 and even seen it while it was stopped at the intersection prior to turning if indeed she had been looking. Even her own expert witness, Mr. Ray Heard, testified that it was there for her to see and there was no impediment to her seeing it. Additionally, the evidence establishes that she could have continued westward on the shoulder and in the shallow ditch until her speed had been further reduced before making an effort to bring her vehicle back to the traveled portion of the highway. While there was some testimony concerning the presence of culverts at some point in the ditch on the north side of the road, the location of those culverts and their exact relationship to the place where she attempted to come back onto the road was never established. Accordingly, both of these actions would appear to constitute negligence on her part. Simon v. Ford Motor Co., supra; Robert v. Beard Engineering, Inc., 351 So.2d 795 (La.App. 1st Cir.1977).

That the Singleton vehicle did not in fact cross the center line is supported by the fact that Mr. Lalonde testified that his view of the Naquin vehicle was in no way at any time ever obstructed by the Singleton vehicle.

It would appear that a young and inexperienced driver was perhaps inattentive and overreacted to a situation which, had she been attentive, she would have seen as posing no immediate threat.

I can find no negligence on the part of either Mr. or Mrs. Lalonde, or Mr. Singleton.

In my view, an award of general damages to Mrs. Lalonde in the amount of $12,000.00 will adequately compensate her for the general damages which she sustained in this accident, and an award to Mr. Lalonde in the amount of $750.00 should compensate him for his general damages. In addition, they are entitled to recover the previously stated medical expenses incurred by each together with the $100.00 deductible which Mr. Lalonde was required to pay for the loss of his vehicle. Additionally, the claims of Allstate Insurance Company for reimbursement of the damages sustained by the Lalondes, which reimbursements it made pursuant to the terms of its policy in the amount of $2,241.35, should be recognized. All other claims and cross claims will be rejected.”

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

All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . These two actions are: Wilson Joseph Lalonde, et ux. v. State Farm Mutual Automobile Insurance Co., et al, Docket # 31,878, 16th Judicial District Court, St. Martin Parish, La., from which no appeal was taken; and, Elmer Naquin, et al. v. Henry J. Singleton, et al., Docket # 31,975, 16th Judicial District Court, St. Martin Parish, La.

      . The quoted portion of the trial court’s reasons for judgment has been edited and typographical errors have been corrected.

      . Actually, what the trial court meant to say was that the Semere Road forms a T intersection with La. 328 from the south at an angle that is 15 degrees from perpendicular, or at an angle of 105 degrees.

      . The trial court’s use of the term “contributory negligence” perhaps indicates that, had it found one or both of the other drivers negligent, it would have found Patty guilty of contributory negligence such that she would have been unable to recover from the negligent party, or parties. The issue of whether a certain plaintiff is guilty of contributory negligence does not arise until the defendant, from whom recovery is sought, has been found to have been guilty of negligence.


source: Caselaw Access Project

author: SWIFT, Judge.

license: Public Domain

text:
    Shirley Mae DOYEN, et al., Plaintiffs-Appellants, v. The CESSNA AIRCRAFT COMPANY, et al., Defendants-Appellees.
    No. 82-55.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      William N. Cox and Rex D. Townsley, Lake Charles, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley, Charles W. Salley, Shreveport, Plauche, Smith, Hebert & Nieset, A. Lane Plauche, Raggio, Cappel, Chozen & Berniard, Chris M. Trahan, Oliver J. Schrumpf, Sulphur, Lugenbuhl, Lorzellene & Ellefson, Vance E. Ellefson and Russell D. Pulver, New Orleans, Camp, Carmouche, Palmer, Barsh & Hunter, David R. Frohn, Brame, Bergstedt & Brame, Frank M. Brame, Woodley, Barnett, Cox, Williams & Fenet, J. L. Cox, Jr., Lake Charles, Tommy C. Rutledge, DeQuin-cy, Stockwell & Associates, Fred H. Sievert, Lake Charles, for defendants-appellees.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

Shirley Mae Doyen and her two children filed this wrongful death suit against numerous defendants, including The Cessna Aircraft Company (Cessna), Dorne & Mar-golin, Inc. (D&M), and Ideal Mutual Insurance Company (Ideal), following an airplane crash in which her husband, Fred B. Doyen, and her son, Kervin R. Doyen, were fatally injured. From judgments granting these defendants summary judgments, the plaintiffs have appealed.

On March 9, 1979, Mr. Doyen and Guy M. Corley made arrangements for the rental of a Cessna 172 airplane from Gene Allen Air Service, Inc. (Allen Air), for the next morning to perform local touch and go landings. The next day the two men and their sons, Kervin Doyen and Bryan Corley, took off in the plane from the DeQuincy airport. The aircraft was last seen on the runway at approximately 8 a. m. At that time the weather condition was overcast with fog, requiring the observance of instrument flight rules instead of visual flight rules. Neither Mr. Corley nor Mr. Doyen were certified to operate an aircraft under instrument flight rules.

When the plane had not come back around 10 a. m. a ground search was initiated. At approximately 12 or 12:30 p. m. the weather conditions improved and an air search attempted to locate the Cessna. About 5 p. m. the plane and its occupants were found about one-fourth to one-half miles from the airport. Evidently, the aircraft had struck a pine tree approximately 26 feet from the ground and crashed. When the rescue team arrived at the scene only Kervin Doyen was still alive. However, he died before reaching the hospital.

The aircraft was manufactured by Cessna and originally equipped with an Emergency Locator Transmitter (ELT) which had been manufactured by D&M. The purpose of an ELT is to transmit an emergency radio signal in the event of a crash to assist in locating the downed plane. However, the ELT unit had become inoperable and was removed from this aircraft prior to the accident.

On February 8,1980, the present suit was filed alleging that the Cessna aircraft was defective and that the ELT manufactured by D&M and installed by Cessna in the plane was also defective. The petition further sets forth that Mr. Corley was the pilot of the aircraft and that he operated it negligently. In a supplemental petition the plaintiffs allege that Ideal issued Allen Air and/or O. J. Hunt an insurance policy providing coverage to any persons, including Mr. Corley, using the aircraft with the permission of the insured.

The issues presented by this appeal are whether the trial court properly granted summary judgments to defendants Ideal, Cessna and D&M upon their motions.

In Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981), our supreme court said this in regard to motions for summary judgment in a products liability case:

“It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc. supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).”

Such motions are not often sustained in tort suits. However, in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), the court said:

“Plaintiff relies strongly on Odom v. Hooper [273 So.2d 510 (La.) ], supra, for his contention that contributory negligence cannot be decided on a motion for summary judgment. His reliance is misplaced; Odom v. Hooper should not be so interpreted. When the evidence submitted on the motion leaves no relevant, genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted (C.C.P. 966), even if the defense is con--tributory negligence.”

The test enunciated in Cates was applied by the supreme court in Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980), wherein it was held that an employer defendant was entitled to a summary judgment because “reasonable minds must inevitably conclude” that he was negligent in permitting an intoxicated employee (later injured in an automobile accident) to leave a company party.

This rule was followed and motions for summary judgment were granted in negligence cases by courts of appeal of this state in Cosse v. Schwegmann Brothers Giant Supermarkets, 336 So.2d 1074 (La.App. 4 Cir. 1976), LeBouef v. Montelius, 358 So.2d 332 (La.App. 4 Cir. 1978), Dore v. Cunningham, 376 So.2d 360 (La.App. 3 Cir. 1979), Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1 Cir. 1980).

In Cosse now Justice Lemmon said:

“The summary judgment procedure is designed principally to decide issues of law in cases where the material facts are not in dispute. The procedure is therefore seldom appropriate in those negligence cases in which the decision turns on a determination of whether or not a defendant’s conduct constitutes a tort, since such a determination almost always involves a factual dispute. Nevertheless, the procedure may be useful to one of multiple defendants in seeking dismissal, without a trial on the merits, after the operative facts of the accident have become fairly well established by investigation and discovery procedures. See Continental Cas. Co. v. McClure, 313 So.2d 260 (La.App. 4th Cir. 1975).”

And in Dore, a tort case involving a duty-risk analysis and causation, now Justice Watson said:

“While it is true that Dean Prosser describes causation as a jury question, the Louisiana Supreme Court has approved the granting of summary judgment even in contributory negligence cases where reasonable men could not differ. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La., 1976).”

Ideal’s motion for summary judgment is based on the contention that its policy did not afford insurance coverage to Guy Cor-ley for any damages caused by his negligent acts, even though he was using the aircraft with the permission and consent of the named insured, because at the time of the accident Corley was flying same under a rental agreement and was thereby excluded as an insured under an express provision of the policy.

It is undisputed that such insurance policy contained the following provisions:

“III. Definition of ‘Insured.’ The unqualified word ‘Insured’ whereever used in this Policy with respect to Coverage A, B, C and D, includes not only the Named Insured but also any person while using or riding in the aircraft and any person or organization legally responsible for its use, provided the actual use is with the permission of the Named Insured.
The provisions of this paragraph do not apply:
if: * * * * *
“(c) to any person operating the aircraft under the terms of any rental agreement or training program which provides any remuneration to the Named Insured for the use of said aircraft. [Emphasis added.]
* * * * * *
“6. PURPOSE(S) OF USE: The aircraft will be used for the purposes indicated by ‘X’:
******
“X(c) ‘Limited Commercial’. The term ‘Limited Commercial’ is defined as including all the uses permitted in (a) and (b) above and including Student Instruction and Rental to pilots but excluding passenger carrying for hire or reward;”

Gene Allen’s deposition revealed that on March 9 Mr. Corley called Mr. Allen by telephone and stated that he and Mr. Doyen wanted to rent the airplane to do some local flying the next day. Allen refused, because the plane had already been scheduled for another flight. Afterwards Doyen arranged with Allen to rent the plane before the other scheduled flight.

The sole issue raised by the appeal from Ideal’s judgment is whether the alleged pilot was an “insured” under the policy in question. The appellants argue that Paragraph 6(c) extends coverage to a rental pilot. We disagree.

In Jahrman v. Valley Air Park, Inc., 333 So.2d 712 (La.App. 2 Cir. 1976), writ denied, 338 So.2d 293 (La.1976), the court was confronted with a similar factual situation and issue. In that case plaintiffs’ ancestor was fatally injured while a passenger in an airplane crash. The plane was rented from Valley Air Park and its liability insurer was granted summary judgment dismissing plaintiff’s suit against it as the alleged insurer of the pilot. The policy contained the following provision:

“The unqualified word ‘insured’ ... includes not only the named insured but also any person while using the aircraft . . . with the permission of the named insured. The provisions of this paragraph do not apply to:
sfc jfc * * H< *
“(e) Any person, other than the named insured, while the aircraft is subject to any rental or lease agreement.”

On appeal the plaintiffs argued, like in this case, that the policy was ambiguous when other sections such as those pertaining to “Use and Purposes” and “Coverage” were considered with the section defining “insured.” Finding that each section of the policy served a different function and therefore must be construed accordingly the court concluded:

“We agree with the trial court’s finding that no inconsistencies or ambiguities in the policy arise simply because different sections of the policy relate to ‘insureds,’ ‘coverage,’ ‘Use and Purposes’ etc., each with its respective requirements and exclusions. One of the permitted uses of an aircraft under the policy is rental to others. Valley Air Park would be covered as to its liability but the person using the aircraft under a rental agreement would not be covered. The quoted provisions clearly state that they do not apply to any person, other than the named insured, while the aircraft is subject to any rental or lease.
* # * >fc sf: s}e
“Finding no ambiguity, we hold that a pilot who rents the aircraft from the named insured under the subject policy, is not an ‘insured’ under the policy because of the definition of insured.”

In the instant case we find no inconsistencies or ambiguities in the provisions of the policy in question. It is clear that the policy does not extend coverage to a person operating the aircraft under the terms of a rental agreement even though one of the permitted uses of the aircraft under the policy was “Rental to pilots.” Since the plane had been rented by Allen Air to Messrs. Doyen and Corley for this flight, we conclude as a matter of law that the latter was not an “insured” under the policy because of the exclusion quoted above. The trial court therefore was correct in granting Ideal’s motion for summary judgment as to liability for any acts of Mr. Corley.

Concerning the summary judgments as to Cessna and D&M, the law is well settled that “[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 the 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.” Thornhill v. Black, Sivalls & Bryson, Inc., supra.

In his deposition Frank Roth, an air safety investigator for the National Safety Board, stated that he investigated the crash on March 10,1979, and did not discover any problems with the engine or aircraft. He found that the plane had fuel and there was no evidence of control malfunction. Mr. Roth said the plane had struck some pine trees approximately one-fourth of a mile south of the airport and traveled approximately 280 feet after the impact with the trees. He further testified that the ELT had been removed from the aircraft prior to the flight and such instrumentality had nothing to do with the operation of the aircraft.

The deposition of Siri Skare, a flight instructor for Allen Air, reveals that she was the last person that flew the Cessna before the crash. This flight occurred on March 9, 1979, and lasted approximately 48 minutes. On return the aircraft had 3.2 hours of fuel left in the tanks. Ms. Skare stated that before this flight she performed an extensive pre-flight inspection, including an inspection of the oil and fuel levels, the fuselage, flaps, elevator, tires, rudder, and propeller. She also made sure there was no obstruction in the air intake system. She further stated that had she found anything wrong the plane would have been grounded.

Gary Arthur, a mechanic licensed to work on air frames and power plants, testified in his deposition that on February 16, 1979, he performed a 100 hour inspection of the aircraft and found nothing wrong with the plane. However, the ELT had been removed previously. He also said that on a prior inspection he found the ELT inoperable and told either Mr. Allen or Mr. Hunt about it.

The affidavit of Larry Werth, a design engineer for Cessna, reflects that the ELT that was installed by Cessna in the aircraft was manufactured by D&M. On February 22, 1979, the Federal Aviation Administration (FAA) issued a directive requiring a modification of that type of ELT from lithium to alkaline batteries unless already done.

O. J. Hunt, the owner of the Cessna, said in his deposition that the ELT had been removed from the plane about October 20, 1978, and that he took it to Transit Aviation in Lake Charles where the battery modification kit was purchased.

Ronald Lovick’s deposition reveals that he modified the ELT from lithium to alkaline batteries either in late December, 1978, or early February, 1979, but that it was still inoperable when he returned the unit. This is the reason it was not reinstalled in the aircraft.

Gene Allen, in his deposition, states that Mr. Lovick returned the ELT to him to have it repaired.

Jordan Fishbane, D&M’s president said in his deposition that his company received the ELT from Allen Air without any instructions on February 12, 1979. The analysis and evaluation was completed on February 28. The printed circuits evidently had malfunctioned. The cost of repair was then quoted to and approved by the customer either on March 11 or 12. On March 19, 1979, the repaired unit was shipped to Allen Air by United Parcel Service. A new ELT could have been purchased at any time for approximately $220.00 and installed in the aircraft.

The regulations pertaining to ELT use are set forth in Part 91.52 of the Federal Aviation Regulations (14 CFR 91.52). Generally, they provide that no person may operate a U.S. registered civil airplane unless it is equipped with an operable ELT except in certain instances such as:

“(3) Aircraft while engaged in training operations conducted entirely within a 50-mile radius of the airport from which such local flight operations began;
“(10) An aircraft during any period for which the transmitter has been temporarily removed for inspection, repair, modification or replacement, subject to the following:
“(i) No person may operate the aircraft unless the aircraft records contain an entry which includes the date of initial removal, the make, model, serial number and reason for removal of the transmitter, and a placard is located in view of the pilot to show ‘ELT not installed.’
“(ii) No person may operate the aircraft more than 90 days after the ELT is initially removed from the aircraft.”

The airplane’s log reveals that no entry was made therein of the removal of the ELT and it is clear that no placard was placed in the cockpit to show there was no ELT installed. The aircraft was flown without an ELT on numerous occasions. The fatal flight took place more than 90 days after the ELT was removed.

The record is devoid of any dispute as to the facts related above.

From our review thereof we are convinced there is no genuine issue as to any material fact from which reasonable minds could conclude that the aircraft itself was defective. Its preflight inspection on March 9, 1979, revealed no indication of component malfunction and it functioned properly on that last flight before the fatal crash. The post-crash investigation also disclosed no evidence of engine or component malfunction.

Appellants’ case is directed at the allegedly defective ELT and they argue that had it been repaired with due diligence after being forwarded to D&M, the aircraft would have been equipped with a working ELT which would have transmitted a signal upon the crash that may have enabled the rescue party to save Kervin Doyen’s life or at least to reduce his pain and suffering.

In considering the motions for summary judgment of Cessna and D&M we must assume the correctness of the plaintiff’s allegation that the inoperable ELT became defective in normal use. Nevertheless, we fail to see how a product that was not being used, even if defective, can give rise to liability under these circumstances.

It is, of course, obvious that an ELT has nothing to do with the flight or navigation of an aircraft. It is equally obvious that the inoperable ELT had nothing to do with causing the plane to crash in this instance. It is also clear to us that Cessna and D&M had no reason to believe that the owner or operator of the plane would permit its being flown without an ELT in any circumstance where it was required by Federal Aviation Regulations.

Actually, the Federal Aviation Regulations did not even require that the aircraft be equipped with an operable ELT for this local training flight. But even if they did, there was no reason for either Cessna or D&M to anticipate that upon the ELT becoming inoperable and being removed for repair the owner or operator of the plane would violate the regulation requiring the entry of such removal in the aircraft log and placing in the view of the pilot a placard showing that such instrumentality was not installed. In such case the pilot would then be in a position to determine whether or not it was proper for him to make a flight without it. And with respect to any delay by D&M in repairing and returning the ELT to Allen Air for reinstallation in the aircraft, there would be no reason for it to foresee that the plane would be flown on a flight requiring it and particularly more than 90 days after its removal from the plane in violation of the Federal Aviation Regulations.

Certainly there was less reason for Cessna and D&M to believe in this case that the plane would be flown in violation of the regulations than for the exonerated contractor in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (La.1972), to believe that the ladder which he left unattended leaning against the house would be moved by a third person to the ground where it caused the plaintiff to trip and fall. As the supreme court held in Lundin, we do not find that there was any duty on either Cessna or D&M to protect the decedents from the risk they encountered.

Furthermore, we do not find that such defect played “a significant and substantial role in causing” the injuries from which the plaintiff’s relatives perished or any additional pain and suffering.

As stated in Dore v. Cunningham, supra, in regard to cause-in-fact in a duty-risk analysis of liability:

“To be a cause-in-fact, a cause must play a significant and substantial role in causing an injury, not a remote or slight part. Compare LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La., 1978). Cunningham’s action was an unexpected, unforeseeable occurrence. It was the act of Cunningham and not his presence which caused the damage. We hold as a matter of law there is not ‘. .. sufficient causation between the [alleged] negligence and the injury to cast the defendant.’ Frank v. Pitre, 353 So.2d 1293 (La., 1978).”

We are convinced that reasonable minds must inevitably conclude that this was an unexpected, unforeseeable occurrence and had either Cessna or D&M been guilty of any negligence with respect to the ELT it did not play a significant and substantial role in causing the tragic accident, the fatal injuries or pain and suffering resulting therefrom.

We therefore conclude that the trial court correctly sustained the motions for summary judgment filed by Cessna and D&M.

For the reasons assigned, the judgments of the district court appealed from are affirmed at appellants' costs.

AFFIRMED.

      . The plane was actually owned by Mr. Hunt, who leased it to Allen Air for rental to qualified pilots.


author: SHORTESS, Judge.

text:
    Heidi Anthony McDANIEL, et al. v. ALLSTATE INSURANCE COMPANY, et al.
    No. 14955.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Phil E. Miley, Baton Rouge, for plaintiffs-appellants.
    Iddo Pittman, Jr., Hammond, for State Farm.
    E. Ross Buckley, Jr., New Orleans, for Allstate and Phyllis Tyrney.
    Tim Higgins and Jesse P. Lagarde, Am-ite, Edward Griffis, Bogalusa, for American Employers Ins. Co. and Milford Ricks.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Heidi Anthony McDaniel (plaintiff-appellant) was injured in a one-car accident in Kentwood, Louisiana, on January 20, 1978. Made defendants were (1) Phyllis A. Tyr-ney, driver of the 1976 Mustang; (2) Allstate Insurance Company, insurer of Phyllis A. Tyrney; (3) Milford Ricks, father of Deanne Ricks, a minor at the time of the accident, and a passenger in the Mustang; and (4) State Farm Mutual Automobile Insurance Company, which provided underin-sured motorist coverage to plaintiff’s mother, Dorothy Rimes. A jury dismissed plaintiff’s suit. Its verdict was returned on a special interrogatory form, wherein the following findings were made:

1. Was Deanie Ricks negligent?
_ YES / NO
2. was her negligence a proximate cause of the injury suffered by Heidi McDaniel?
_ YES / NO
3. Was Phyllis Tyrney negligent?
/ YES _NO
4. Was her negligence a proximate cause of the injury suffered by Heidi McDaniel?
/ YES _NO
5. Was Heidi McDaniel contributorily negligent?
_YES / NO
6. Was her contributory negligence a proximate cause of her own injury?
_ YES / NO
If your answer to the last question was “yes”, then proceed no further; if your answer was “no”, then go on.
7. Did Heidi McDaniel assume the risk of injury?
/ YES _NO

The specifications of error are (1) that the jury committed error in finding that plaintiff assumed the risk of injury; (2) that the jury committed reversible error in its failure to find Deanne Ricks guilty of negligence, and (3) the jury committed reversible error in failing to award damages to plaintiff.

The undisputed facts are that Friday, January 20, 1978, was a cold, wet day, and it had snowed the day before; that at the time, Deanne Ricks was 17 years old, Phyllis A. Tyrney was 18 years old, and plaintiff was 16 years old; that the three girls were friends and lived near each other in Tangi-pahoa, Louisiana; that Deanne and Phyllis were making plans at Deanne’s house in the late afternoon for an evening outing, when plaintiff came over; that plaintiff was being punished by her mother and could not go out, so she prevailed upon Phyllis to phone her mother to try to get permission for plaintiff to go to the movies in Hammond; that her mother agreed and Phyllis drove plaintiff home so she could dress; that they returned to Deanne’s and then left her house at approximately 7:30 p. m.; that instead of going to Hammond, the girls immediately went to Kentwood to Rouco’s store and bought a fifth of vodka, grape juice, orange juice, ice and cups; that the liquid ingredients were mixed in a gallon milk jug to obtain a concoction called “purple passion;” that they rode around Kent-wood with Phyllis driving for some time; that all three drank liberally from the jug; that they proceeded to Amite and then to Bear Creek Steak House in Montpelier; that they returned to Amite and went through the Sonic Drive-Inn and the Hi-Ho looking for friends; that they consumed the gallon of purple passion, so they stopped at a 7-11 store to get more vodka and juice; that plaintiff, in the passenger bucket seat, rolled the window down but Deanne, in the back seat, complained about the cold air and moved into the front seat, and plaintiff sat on the console between the two bucket seats; that they decided to go to the bars at Pines and at Skinny’s, both north of Kent-wood; that the accident occurred just north of Kentwood on U. S. Highway 51, which was two-laned and blacktopped; that it occurred in a curve just before a bridge; that the Mustang went off the road to the left, came back on the road, traveled in a sideways motion for approximately 150 feet before going on the shoulder to the right, and then hit a tree.

Phyllis testified that she was a little “light-headed” and was feeling the effects of the “purple passion” at the time. Her version of the accident was that she took her eyes off the road as she talked to Deanne; that she heard her car in gravel, looked up, was on the left shoulder, and knew she was in trouble; that Deanne grabbed the steering wheel and started pulling it back to the right; that she hit her brakes and the car went in the ditch.

Phyllis’ testimony was very similar to the version she gave to the investigating policeman, Charles Wall, of the Kentwood Police. Wall testified that Phyllis told him she lost control; . that her car veered to the other side of the road; that her friend grabbed the wheel and started pulling it back; and that she hit her brakes and went into the ditch..

Deanne Ricks testified that the girls planned the night at her house after obtaining the permission of plaintiff’s mother to go to the movies; that they never had any intention of going to the movies, but talked about driving around and mixing the “purple passion” before leaving her house; that all three chipped in and bought the alcohol and other ingredients, and all three drank it; that this was not the first time they had done this; that this was a “normal, usual type” evening for them; that they drove around Kentwood while drinking; that they went to Bear Creek Steak House and had a drink; that they returned to Amite, got some more ingredients and were proceeding through Kentwood to Pines and Skinny’s at the time of the accident; that shortly before the accident, they passed through Tan-gipahoa, where all three lived, and no one mentioned wanting to go home; that when the car veered to the left, she and Phyllis were looking at something on the floor or fixing the radio; that when she heard the gravel, she reached for the wheel in an attempt to bring the car back to the road; that she threw away the balance of “purple passion” in the jug before the police arrived; and that they had consumed about half of the second mixture at the time of the accident.

Plaintiff denied that she had been told of the drinking plans for the night. She said she thought they were going to the movies. She also denied having drunk “purple passion” ever before. She testified that she helped finish the first mixture but she did not drink from the second because she did not think she should; that she was “very light-headed” when they left the Bear Creek Steak House and she laid back on the seat, but had not passed out; that she was leaning back on the seat gazing out the window; that she heard rocks, closed her eyes, and woke up in the hospital; and that at no time during the evening did Phyllis’ driving alarm her.

On cross examination, plaintiff admitted that occasionally they went out on a Friday night and drank; that she had ridden with Phyllis when Phyllis was “rip-roaring drunk;” that she did not complain when they did not go to the show; that she felt that Phyllis was “giggly” but not drunk when they left the Bear Creek Steak House; that she never complained and voluntarily continued to ride with Phyllis, even though they came through Tangipahoa and within three blocks of her house after leaving Bear Creek Steak House.

Based on this factual scenario, the jury found Phyllis guilty of negligence which proximately caused the accident; that Deanne was not guilty of any negligence which caused the accident; and that plaintiff had assumed the risk of injury. The jury’s decision, unless clearly erroneous, must not be overturned on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We feel that there was a sufficient factual basis upon which a jury could reasonably conclude that Deanne Ricks was not guilty of any negligence which proximately caused this accident. In the face of sudden emergency, not created by her, she instinctively moved to grab the steering wheel in an effort to bring the car back to the road when she heard the car in the gravel on the left side of the road. Her action may have averted more serious injury-

The primary thrust of plaintiff’s appeal is that she did not assume the risk of the accident and her injuries, because she did not knowingly and voluntarily encounter the risk which caused her harm, and because she did not understand, appreciate and accept the risk involved, as well as the inherent possibility of danger because of the risk. Dofflemyer v. Gilley, 384 So.2d 435 (La.1980). We must look at the facts to determine what plaintiff did know. She, along with the other girls, testified that they were not drunk and that Phyllis had been driving safely and alertly, and had given no cause for alarm. But plaintiff admitted that she had gone on drinking sprees such as this one on prior occasions with Phyllis and Deanne, even when Phyllis was drunk; that by the time they had finished the first gallon of “purple passion” she was feeling its effect and was lightheaded and had laid back on the seat to gaze out the window and listen to the radio. She also testified that she felt she should not drink any more after the first mixture because she could not drink anything else. She knew at that time what the effects of the mixture had been on her and knew that Phyllis was still drinking. She described Phyllis’ condition when they left the Bear Creek Steak House as “giggly” but not drunk. She indicated that she did not know how to define “drunk.” She knew that they had consumed the first gallon and were well into the second batch as they went through Tangipahoa, where they passed within three blocks of her house. She could have gotten out of the car at that time, but she admitted that she did not even think about getting out, and she never complained.

Assumption of risk is an affirmative defense. C.C.P. Art. 1005. In Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971), the court states:

The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard. See Restatement (Second), Torts § 496 (1965); Symposium: Assumption of Risk, 22 La.L.Rev. 1-166.

249 So.2d at 141.

Our Supreme Court in Bass v. Aetna Ins. Co., 370 So.2d 511 (La.1979), stated:

Knowledge is the mainstay of this assumption of the risk defense, and this court will impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1977). Assumption of the risk therefore is properly applicable to those situations where the plaintiff, with knowledge of the peril, voluntarily enters into a relationship with defendant involving danger to himself because of defendant’s contemplated conduct.

370 So.2d at 514.

The jury concluded that plaintiff assumed the risk. The facts indicate that she actually did make certain observations and that she voluntarily entered into and continued a relationship with Phyllis and Deanne involving danger to herself because of their continuous conduct. She observed that she could no longer drink because of the effect the alcohol had on her. She also observed that Phyllis was “giggly” as they left the Bear Creek Steak House. She knew that they were within three blocks of her house before they headed toward Kentwood, but she did not even think of going home. A jury certainly could have reasonably concluded from this set of facts that plaintiff assumed the risk of her own injury. The jury’s finding on this crucial point will not be changed because there was a factual basis for it.

We conclude that the record here clearly establishes a factual basis for all the jury’s findings, and its verdict is affirmed at plaintiff’s costs.

AFFIRMED.


author: LEAR, Judge.

text:
    Raymond LEMIEUX, Jr. v. PRUDENTIAL INSURANCE COMPANY.
    No. 14951.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Stephen J. Laborde, Metairie, for plaintiff-appellant Raymond Lemieux, Jr.
    Glenn B. Adams, James S. Thompson, New Orleans, for defendant-exceptor appel-lee Prudential Property and Casualty Ins. Co. (Prudential Ins. Co.).
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

Plaintiff, Raymond J. Lemieux, Jr., filed this action against his uninsured motorist insurer, Prudential Insurance Company, seeking damages for personal injuries sustained in an automobile accident. In his petition, plaintiff alleged that he was injured when he was forced to swerve off the road to avoid contact with a vehicle which was approaching in his lane. Plaintiff further alleged that he was successful in averting contact with the oncoming vehicle, but severely injured himself when his car impacted along the side of the road. The other vehicle left the scene of the accident without stopping, and neither it nor its driver was ever identified.

Defendant answered, denying the allegations of plaintiff’s petition, except to admit that it provided plaintiff with UM coverage and that there was no physical contact between plaintiff’s automobile and the unidentified vehicle. Shortly after answer, defendant filed a “peremptory exception of no right or cause of action”. The trial court sustained the exception but gave plaintiff fifteen days to amend his petition. Plaintiff timely amended, alleging that the unidentified vehicle and its driver were uninsured. Notwithstanding the amendment, the trial court maintained the exception and dismissed plaintiff’s lawsuit. Plaintiff then timely appealed from the judgment of dismissal signed by the trial court.

In the instant case, the basis of defendant’s exception lies in the provisions of the insurance policy, which state that an insured may not recover against his UM insurer in instances wherein the allegedly uninsured driver and vehicle are unidentified, unless there is physical contact between the vehicles. Thus, defendant is contending that the law affords plaintiff no remedy under such circumstances and that plaintiff’s petition fails to state a cause of action.

The insurance policy at issue was submitted to the trial court at or prior to the hearing on defendant’s exception, and it appears from the judgment on the exception that the policy was considered by the trial court as an exhibit. While evidence is not admissible at any time to support or defeat a peremptory exception of no cause of action, La.C.C.P. art. 931; American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970), evidence may be properly considered by the court in this regard where it is admitted without objection. In such case, the pleadings are considered to have been enlarged. Hensley v. Government Employees Insurance Company, 340 So.2d 603 (La.App. 1st Cir. 1976), writ denied, 342 So.2d 224 (La.1977).

In the instant case, plaintiff expressly alleges in his petition that there was no physical contact between his vehicle and the unidentified driver. It has been consistently held by the courts of this state that, in order to recover against his UM insurer, plaintiff must show either that there was physical contact under the “hit and run” definition of the insurance policy or the identity of the vehicle which allegedly struck plaintiff or of the operator of said vehicle. Gex v. Doe, 391 So.2d 69 (La.App. 4th Cir. 1980), writ denied, 396 So.2d 899 (La.1981); Oliver v. Jones, 376 So.2d 1256 (La.1979); Hensley v. Government Employees Insurance Company, supra; Collins v. New Orleans Public Service, Inc., 234 So.2d 270 (La.App. 4th Cir.), writ denied, 256 La. 375, 236 So.2d 503 (La.1970). Since plaintiff failed to allege either of these elements, and in fact alleged the converse, his petition, as amended, fails to state a cause of action. Accordingly, the trial court’s judgment dismissing plaintiff’s suit is correct.

For the foregoing reasons, the judgment of the trial court in favor of defendant, Prudential Insurance Company, and against plaintiff, Raymond Lemieux, Jr., is hereby affirmed. All costs, both at trial and on appeal, are to be paid by plaintiff-appellant.

AFFIRMED.


author: STOKER, Judge.

text:
    Ronney L. BROUSSARD, d/b/a Ronney Broussard Trucking, Plaintiff-Appellee, v. TEXAS INDUSTRIES, INC., et al., Defendants-Appellants.
    No. 82-68.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellants,
    Dan E. Melichar, Alexandria, for plaintiff-appellee.
    Before FORET, STOKER and DOUCET, JJ.
   STOKER, Judge.

This is a suit for damages for personal injuries and property loss resulting from a one-vehicle accident. Plaintiff, Ronney L. Broussard (Broussard) alleges that defendant C. L. Gurganious (Gurganious) forced him off a narrow state highway. A jury found in Broussard’s favor and against Gur-ganious and his co-defendants.

There are two principal issues in this appeal:

1. The appellants contend that the trial court’s conduct with reference to jury issues was so out of order that we should reverse the judgment based on the jury verdict and remand the case for a new trial.

2. The second issue is contingent on our conclusion with reference to the first issue. Broussard claims Gurganious was in Brous-sard’s lane of travel and forced Broussard to drive off the highway to avoid collision. The defendants raised contributory negligence on the part of Broussard as an affirmative defense. The trial court took several actions to make certain that the jury did not consider this defense. Notwithstanding the trial court’s action, we must apply Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975) and decide whether the record contains sufficient evidence for us to decide the issue of contributory negligence. Since we conclude that the record is sufficient, we must deny the requested remand for a new trial and decide the contributory negligence question ourselves.

FACTS

Broussard and Gurganious were both gravel haulers. They were operating on Louisiana Highway 774 in LaSalle Parish, Louisiana, on July 9,1980. They were traveling in opposite directions and were meeting one another. Gurganious was operating a loaded tractor-trailer gravel rig in a westerly direction. His employer was Texas Industries, Inc. and his insurer was Travelers Insurance Company, both of which are also defendants and appellants. The highway in the area is through hilly country and consists of narrow blacktop or asphalt.

As Broussard topped a hill he observed Gurganious meeting him in Broussard’s lane of travel. The highway apparently was in poor condition and Gurganious was admittedly over the center line in an attempt to avoid a pot hole. Broussard was operating a 1980 Peterbilt tractor and empty trailer which he owned. The two units of the rig were approximately twenty-three feet long. Broussard applied his brakes leaving skid marks on the highway, and his rig then went off the highway. There was no contact between the two rigs. Brous-sard’s rig jack-knifed and caused injury to Broussard and damage to his rig.

The jury found that Gurganious was negligent, and his negligence was a proximate cause of the accident. This was the sole issue relative to liability submitted to the jury. The trial court submitted interrogatories to the jury which rendered a special verdict under LSA-C.C.P. art. 1811. The trial court refused to submit the issue of the plaintiff’s alleged contributory negligence. Moreover, the trial court directed the plaintiff’s attorney not to argue the issue of contributory negligence before the jury (Tr. 285-247) and refused to instruct the jury on the issue of contributory negligence. Defendants’ counsel made appropriate objections at all appropriate times to the trial court’s rulings.

In defendants’ brief they argue that the evidence established Broussard was contrib-utorily negligent in two respects: (1) he was traveling at an excessive rate of speed under the particular circumstances and (2) he failed to maintain proper control of his tractor-trailer. They specifically pleaded such negligence on the part of Broussard as a bar to his right to recover. The trial court arrived at a contrary conclusion. Based on this conclusion the trial judge issued the ruling that the defendants’ counsel would not be allowed to argue the question of contributory negligence to the jury. As noted above the trial court also refused to give any instruction to the jury relative to contributory negligence concerning the two points and omitted any interrogatories in the special interrogatories submitted to the jury.

SPECIFICATIONS OF ERROR

Appellants set forth the following specifications of error in their brief filed with this court:

“1. The Trial Court erred in ruling as a matter of fact that there was no evidence in the record to support defendants’ plea of contributory negligence in bar of plaintiff’s claim.
“2. The Trial Court erred in refusing to submit to the jury the issue of the contributory negligence in bar of plaintiff’s claim.
(a) The Trial Court erred in refusing to charge the jury on the issue of contributory negligence in bar of plaintiff’s claim.
(b) The Trial Court erred in refusing to submit to the jury an interrogatory on the issue of contributory negligence in bar of plaintiff’s claim.
“3. The Trial Court erred in instructing counsel for defendants to refrain from arguing contributory negligence in bar of plaintiff’s claim during defendants’ closing argument.
“4. The Trial Court erred in refusing to sustain defendants’ objection to the charge to the jury on the presumption of negligence under the facts of this case.”

We conclude that the trial court did indeed err as set forth in appellants’ specification 1, 2, and 3. These errors do not necessarily require that we remand the case for a new trial which is the remedy appellants seek here. The standard for granting a new trial in such cases was considered by the Louisiana Supreme Court in Gonzales v. Xerox Corporation, supra, and again in Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980). These cases hold that if the record is complete and an appellate court has all the facts before it, an erroneous jury instruction does not warrant a remand. See also Boyette v. Auger Timber Co., 403 So.2d 800 (La.App. 2nd Cir. 1981).

The rule of Gomales results in depriving a litigant of a jury trial on a jury issue. This is clear as is noted in the dissents in Gonzales and Ragas. The rule results in the anomaly that, while we as the intermediate appellate court hold that the trial court erred in depriving appellants of a jury consideration of serious issues of fact, we are at the same time mandated to go ahead and decide those issues on the record under our own constitutionally granted authority to review lower court findings of fact. The rule is grounded on judicial economy and expediency.

It is not every trial court error which may be corrected on appellate review. The Supreme Court in Ragas, in commenting on and Gonzales, said:

“Where a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record.
This is not to say, and Gonzales should not be read to require, that the appellate court must find its own facts in every such case. There are cases where the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial.”

Appellants persuasively argue in this case that the weight of the evidence is balanced and a first hand view of the witnesses is essential to a fair resolution of the conflicting evidence and the issues. We are not persuaded that this is so. The record appears to us to be quite complete. Counsel does not suggest that any additional evidence is necessary to complete the record. Under Gonzales and Ragas we believe it is our duty to decide the issue of Broussard’s alleged contributory negligence and deny the requested remand.

WAS BROUSSARD GUILTY OF CONTRIBUTORY NEGLIGENCE?

Where contributory negligence is pleaded in bar of a plaintiff’s recovery, the defendant so pleading bears the burden of proving the plaintiff’s negligence. This principle requires no citation. Upon consideration of the evidence we find that appellants have not borne their burden of proof.

Appellants relied on the testimony of the investigating officer, Trooper Russell Trapp of the Louisiana State Police. Broussard testified that he was driving at a speed of fifty-five miles per hour which was the posted speed limit. Appellants’ counsel elicited an opinion from Trooper Trapp that on this particular highway, Louisiana Highway 774, fifty-five miles per hour would not be a safe speed. The trial court sustained objection to the testimony and, in fact, appellants’ counsel withdrew the question which drew forth the Trooper’s opinion. The trooper was not qualified as an expert in any specialty. Other than the presence of pot holes, the narrowness of the road and the visibility problems created by the hilly or rolling nature of the highway and some curves, the record presents no circumstances indicating that fifty-five miles an hour was an excessive rate of speed for Brous-sard to have maintained at the time.

The length of the skid marks left by Broussard’s unit do not alone preponderate as evidence of excessive speed. The charge that Broussard was guilty of contributory negligence which was a cause of this mishap is speculative.

The claim that Broussard failed to maintain proper control of his rig is also speculative. His rig consisted of a tractor and trailer. The problem inherent in braking two such separate units running at high (but legal) speeds is almost common knowledge. Photographs introduced in evidence show that the highway at the place of the incident is indeed narrow and has narrow shoulders. Any infringement of Brous-sard’s lane of travel would present serious problems of control. Appellants have not shown by any preponderance of evidence that Broussard’s conduct was below standard in the matter of control of his rig. It appears more probable to us that, under the circumstances created by Gurganious, Broussard took action which was reasonable but which failed because of the narrowness of the highway and shoulders — all factors beyond Broussard’s control.

Prudence might have called for Brous-sard to have maintained a more moderate speed. Also it is possible that a driver of greater skill might have successfully maintained control under the circumstances. However, defendants’ evidence does not preponderate to the point of proof that Broussard was contributorily negligent in these respects.

Defendants claim that Gurganious’ rig had returned to its proper lane of travel before Broussard’s rig reached Gurganious’ rig. The jack-knifing apparently occurred after the two rigs passed one another. We see no particular probative value in such facts and they do not affect our conclusions.

ADVERSE PRESUMPTION AGAINST DRIVER IN WRONG LANE OF TRAVEL

Defendants’ fourth specification of error may be set forth through their formal written objection to a jury instruction given by the court:

“Defendants object to plaintiff’s requested jury charge on presumption of negligence, which requested jury charge reads as follows:
‘You are instructed that a motorist who is shown to be in the wrong lane of traffic when an accident occurs is presumed to be negligent and it becomes incumbent upon such driver to show that he committed no fault, however slight, which contributed to the accident.’
“Defendants show that the prima facie presumption of negligence on the part of a driver of a vehicle overtaking or passing another with reference to an oncoming vehicle arises only when the attempt to pass is made when there is not a sufficient distance ahead to permit such overtaking and passing to be made in safety. Guillory v. Bordelon Lines, Inc., 23 So.2d 699 (La.App.Orl.1945). Defendants further show that plaintiff’s requested charge is not consistent with the facts of this case.”

Defendants claim the instruction given was not consistent with the evidence in two respects. The first, so defendants claim, is that Gurganious had returned to his proper lane when Broussard left the highway. (This point is in dispute.) Defendants also contend that both drivers testified that when Broussard first crested the hill and saw Gurganious in his lane, there was a distance of from 600 to 750 feet between the two vehicles.

The instruction objected to is a correct statement of the law. Simon v. Ford Motor Company, 282 So.2d 126 (La.1973); Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957) and Baham v. Patterson, 353 So.2d 366 (La.App. 1st Cir. 1977). Had the trial court been so inclined, it would perhaps not have been error for the trial court to have added some qualification based on the holding in Guillory v. Bordelon Lines, Inc., supra. There was no error in not doing so. Inasmuch as the jury found Gurganious was negligent and his negligence was “a proximate cause of the accident,” it must have resolved the question of fact as to his presence in the wrong lane against defendants.

On the second point, the alleged distance between the vehicles when the accident occurred, we must assume defendants’ contention has reference to the time Brous-sard applied brakes and began to travel toward the shoulder. (The accident consisting of the jack-knifing of Broussard’s rig, which caused injury to Broussard and damage to his rig, apparently did not occur until after the vehicles had passed one another.) If defendants’ evidence had convinced the jury that the distance factor put all the blame on Broussard and none on Gurganious, then defendants would have met the burden of the law given in the instruction to show Gurganious “committed no fault ... which contributed to the accident.” In other words, the jury would not have found the presumptive fault of Gurganious to have been a cause in fact of the accident. But the jury did find Gurganious was guilty of negligence and that it was a proximate cause of the accident.

We do not find that there is merit to defendants’ objection to the jury instruction in question.

CONCLUSION

For reasons given above we affirm the judgment of the trial court. The costs of this appeal are assessed to appellants.

AFFIRMED.


text:
    Curtis LOLLEY, d/b/a Hercules Tank & Iron Works, Plaintiff-Appellant-Appellee, v. CAMERON PARISH WATER WORKS DISTRICT NO. 1 and the Parish of Cameron, Defendant-Appellee-Appellant.
    No. 82-71.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Leithead, Scott, Boudreau, Myrick & Richard, William A. Fogleman, Lake Charles, for plaintiff-appellant-appellee.
    Jones, Jones & Alexander, Jerry G. Jones, Cameron, for defendant-appellee-appellant.
    Before FORET, STOKER and DOUCET, JJ.
   STOKER, Judge.

The plaintiff sued on a contract to paint a water tower and tank. After completion of the work the owner refused to pay, claiming the work was defective. The owner also asserted reconventional demands. The trial court found the work defective. It also held the owner’s claims were valid, and denied both claims. Both the contractor and owner have appealed.

Curtis Lolley, doing business as Hercules Tank and Iron Works (Lolley) was the contractor. He agreed to paint a tower and tank belonging to defendant and reconve-nor, Cameron Parish Water Works District No. 1, a political subdivision of Cameron Parish, Louisiana. Lolley sued both the waterworks district and the “Parish of Cameron”. Both answered and filed recon-ventional demands. We shall refer to the “District” to designate both the waterworks district and Cameron Parish.

FACTS

The parties entered into a written contract for the'work done for a total of $15,-900. Of this price $11,900 covered painting the exterior of the structure and $4,000 covered painting the interior of the tank. Lolley finished his job, but the District refused to pay for the work. After some time the District took the position that the work on both the exterior and interior was defective, and large sums would be required to correct the deficiencies. In addition, the District claims that Lolley owed various third parties for damages to private property caused by sprayed paint evidently carried by the wind. The general proposition that damage to some parties did occur is not in dispute. The District established that it paid $8,529.91 to correct the damage to property of third parties, primarily automobiles. The District claims that shortly after Lolley completed his job, rust began to show through the exterior paint applied by Lolley’s workmen. It also discovered that paint was peeling from the interior of the tank.

The District and the Parish answered Lolley’s suit denying his claims. The district reconvened for $30,000 to cover the cost of remedying the defective paint work. On August 17, 1981, the trial court signed an order permitting the District to amend its reconventional demand increasing the demand in reconvention to $132,500. The case was fixed for trial on August 20, 1981. On the day of the trial Lolley filed in open court a pleading denominated as Exceptions and Answers to Supplemental and Amending Reconventional Demand. The trial proceeded without disposition of the exceptions.

Lolley did not provide a performance bond and did not have in effect liability insurance to cover his job for the District. The Cashier and Secretary of the District, Barbara Lou LeBlanc, notified Lolley when third parties began to report damage to their automobiles and other property from spray paint. In response Lolley sent an adjustor or representative to look into the situation. Lolley’s company is an out of state concern. The adjustor made arrangements with an automobile repainting shop in Lake Charles, Louisiana, to clean the paint-damaged vehicles. LeBlanc maintained at trial that Lolley authorized her to pay the paint shop for its work from sums due Lolley under his contract with the District. Lolley denies he gave such authorization and claims that he merely authorized withholding the sums from the contract price until the matter was resolved. After working on about four vehicles, the Lake Charles firm declined to take any more work. LeBlanc contacted Lolley and, according to her testimony, Lolley instructed her to make arrangements with any other firm which would do the work. Lolley denies this.

Barbara Lou LeBlanc testified that she expended some $4,400 to $4,500 having ve-hieles cleaned when Lolley instructed her to stop expending any of his money on third party claims. LeBlanc testified she complied with these instructions and did not spend any more funds under Lolley’s authorization.

The trial court found that the defective exterior paint work resulted from the attempt of Lolley’s painting crew to spray paint under adverse weather conditions and in high winds. No explanation for the problem with the interior paint job was found. The testimony convinced the trial court that the interior paint, although it met contract specifications, was not adhering and was peeling off of the interior surface in such degree as to justify a complete removal of the interior paint and application of a different treatment — the coating of the interior with a wax material. The low bid for this work was $5,900, the work was completed and the District paid the bid price.

The trial court concluded from the evidence that a “spot brush program” estimated to cost $6,000 would rectify the exterior paint problem.

Lolley complained that he was neither given an opportunity to check the work the District claims was defective nor to rectify any work which was actually defective. Lolley also claims the District actually accepted the job. The District did not make complaint of defective work until some time after Lolley completed his work, but also there is no evidence of an acceptance of work by the District itself. The District showed that the exterior paint supplier warned the job superintendent not to try to paint in adverse weather conditions.

In opposition to Lolley’s position the District claims Lolley refused to come to Cameron Parish to inspect the defective work.

TRIAL COURT’S ACTION

The trial court gave written reasons for judgment. We do not find the trial court was clearly wrong in its factual findings. The trial court found in favor of the District relative to the failure of Lolley’s work to hold up, but found the work was done in accordance with specifications. Therefore, the trial court’s reasons must be read as finding that Lolley’s crew performed the work in a defective manner. The exterior paint was actually selected by the District. The trial court’s reasons for judgment also indicate that Lolley substantially performed the work called for under the contract although with the results indicated. The trial court held that Lolley failed to comply with the terms of the contract which required that he carry liability insurance.

The trial court found that Barbara Lou LeBlanc paid $4,400 to $4,500 in third party damages claims with Lolley’s authorization given by telephone at which point Lolley directed LeBlanc to pay no more claims. The trial court found that the District paid a total of $8,529.11 in third party claims.

The trial court held Lolley’s breach of the obligation to carry liability insurance caused the District “to incur expenses of $8,529.91 for the payment of third party claims”. The trial court also held the “implied obligation of all contracts that the work will be performed with the measure of skill required was breached”. It found the repair costs for the interior work was $5,900 and the estimated cost of correcting the interior work was $6,000. The trial court stated in its reasons for judgment that the expenses mentioned above exceeded the contract price due Lolley; thus any amount due Lolley was “voided by this offset”.

The trial court held Lolley was not entitled to recover under the theory of quantum meruit. The trial court rejected the demands of Lolley as plaintiff and also rejected the reconventional demands of the District. The concluding portion of the trial court’s reasons for judgment are as follows:

“The demands of the plaintiff are rejected.
“The reconventional demand of the parish is without merit. The funds retained exceed the actual expenses documented. The evidence did not show that the rusting condition of the tank and tower are worse now than before January of 1970. The burden of proof on a recon-ventional demand is upon the reconvenor. The sum of Six Thousand Dollars ($6,000.00) was estimated to be the minimum amount which could be spent to bring the project to the acceptable position of a completed job. Beyond the actual out-of-pocket expenses, the evidence is inadequate to show with the necessary exactitude what damages the parish has suffered. Consequently, the reconven-tional demand is also denied.
“The costs are assessed against plaintiff, Hercules.”

DISPOSITION OF THE CASE

Although the trial court was not clearly wrong in its finding of facts, it erred in its application of law.

Considering the trial court’s specific findings we conclude that it erred in its conclusions in one respect. We disagree with the trial court’s statement: “Beyond the actual out-of-pocket expenses, the evidence is inadequate to show with the necessary exactitude what damages the parish [District] has suffered.” In this regard we consider the $6,000 estimate for correction of the exterior defects as sufficient proof of the District’s claim for this amount. Tr. 143-145, and 148-149.

Under the facts as found there was no legal basis for holding that the District was entitled to any offset for the payment of third party claims in excess of $4,400. An offset of this amount was authorized by Lolley himself. Under the circumstances we may regard the District, acting through its cashier and secretary, as the mandatary of Lolley for the payment of these claims. There is no showing that the District itself was liable for any of the claims. In fact, although it seems reasonably obvious that Lolley would be liable for any bona fide damage claims of third parties, that point was not actually proved. It is true that bills were submitted and the District paid them, but this is all that was proved. Hence, the trial court was in error in concluding that Lolley was liable to the District for $8,529.91 in third party claims paid.

We hold that Lolley authorized the District to pay out $4,400 of the amount due him under his contract.

We hold that Lolley substantially performed his contract. The respective rights of a contractor and owner under such circumstances are well settled. They are fully discussed and clearly set forth in Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir. 1975), writ denied, 319 So.2d 440 (La.1975). We need not repeat or detail them here.

Inasmuch as Lolley established that he substantially performed his contract, he is entitled to recover under his contract the sum of $15,900 less $4,400 which he authorized LeBlanc to pay on his behalf to third parties. Therefore, Lolley is entitled to recover $11,500. The District established that it is entitled to offset this amount by the sum of its costs necessary to correct the defective work which is the sum of $11,900. The result is that the District is entitled to recover $400.

We do not have before us an appeal by the District from the dismissal of its claim in reconvention for the entire sum of $132,-500. In its brief the District listed one specification of error:

“CAMERON PARISH AND CAMERON PARISH WATERWORKS DISTRICT NO. l’s SPECIFICATION OF ERROR
“The lower court erred in denying recovery to defendants, Cameron Parish and Cameron Parish Waterworks District No. 1, on their reconventional demand against plaintiff, Curtis Lolley, for the difference between the actual contract price of $15,900.00 and the damages and repair expenses incurred of $20,429.91, or a net loss to defendants in the amount of $4,529.91.”

This specification of error, aside from limiting the claim in reeonvention to $20,-429.91, indicates reconvenors’ reliance on and acceptance of the law as set forth in Neel v. O’Quinn, supra.

Prior to concluding this opinion we will comment on Lolley’s Specification of Error No. 1 which reads:

“SPECIFICATION OF ALLEGED ERROR
“The Trial Court errored [sic] in not dismissing the third party demands brought in the supplemental and amending petition on behalf of CAMERON PARISH [DISTRICT] three days prior to the trial on August 17, 1981. The plaintiff filed exceptions and answers to the supplemental and amending reconven-tional demands. The Trial Court failed to rule on the exceptions and answers filed to these supplemental demands. Code of Civil Procedure Article 925. Code of Civil Procedure Article 927. Civil Code Article 3536. [Herbert v. Armstead] 227 So.2d 636 (3rd Cir. 1969); [Gruber v. Perkins] 192 So.2d 222 (4th Cir. 1966).”

The matters raised in this specification require no extensive treatment. Although Lolley filed his “exceptions and answers” on the day of trial, we find that he made no objection to going to trial. In its written reasons for judgment the trial court held the District’s reconventional demand was without merit. In its judgment the trial court dismissed the District’s third party demand. In essence, however, the trial court did give some effect to the District’s reconventional demand. This is because it offset Lolley’s principal demand with the claims of the District. In doing so the trial court apparently included the sum of $8,529.91 in alleged claims of third parties whose property was damaged by Lolley. Inasmuch as we have rejected this approach, the exceptions of no right and no cause of action asserted by Lolley on the day of trial have been sustained.

An exception of lis pendens asserted by Lolley in its “exceptions and answers” filed on the day of trial is totally without merit. Moreover, Lolley has not argued the matter of lis pendens in its brief filed with us. The question of prescription of the third party damage claim is moot in view of our disal-lowance of them.

CONCLUSION

For the reasons given above we reverse and set aside the judgment of the trial court.

IT IS NOW ORDERED, ADJUDGED AND DECREED that there be judgment on the main demand in favor of plaintiff-appellant, Curtis Lolley, doing business as Hercules Tank and Iron Works, and against Cameron Parish Water Works District No. 1 and the Parish of Cameron in the sum of $11,500, which sum is to be fully offset by the sum awarded herein to reconvenors against Lolley.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiffs in reconvention, Cameron Parish Water Works District No. 1 and the Parish of Cameron and against Curtis Lolley, doing business as Hercules Tank and Iron Work, in the full sum of $11,900, which sum is to be offset by the sum awarded herein above to Curtis Lolley so as to award a net recovery to reconvenors of the sum of $400 and to result in no recovery to Curtis Lolley.

The sum of $400 awarded to reconvenor shall bear legal interest from the date this judgment becomes final. All costs of court incurred in the trial court and in this appeal are assessed to Curtis Lolley, doing business as Hercules Tank and Iron Works.

REVERSED AND RENDERED.