author:
CULPEPPER, Judge.
      STOKER, Judge,

text:
    Judy K. BARBEE, Plaintiff-Appellee, v. Bernie Olice PIGOTT, Defendant-Appellant.
    No. 8132.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Rehearing Denied May 28, 1981.
    Michael Shannon, Alexandria, for defendant & appellant.
    Kramer & Laird, Martin L. Laird, III, Alexandria, for plaintiff & appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   CULPEPPER, Judge.

Plaintiff seeks damages for injuries sustained as a result of being intentionally shot twice by defendant with a shotgun on October 13, 1979. Defendant answered by general denial. Thereafter, plaintiff filed a motion for summary judgment. Attached to the motion is an affidavit by plaintiff giving a detailed description of the events leading up to the shooting. The affidavit further generally describes the nature of the injuries received by plaintiff, the medical treatment which followed and her present disabled condition. Also included are several photographs of plaintiff taken soon after the shooting, along with copies of medical records and x-rays from Huey P. Long Memorial Hospital and the deposition of Dr. D. M. Kingsley, an Alexandria orthopedic surgeon.

At the hearing on the motion for summary judgment, defendant filed a motion for continuance on the grounds of pendency of criminal proceedings against him for manslaughter and attempted manslaughter stemming from the October 13, 1979 shooting. Counsel further informed the Court that defendant had entered pleas of not guilty and not guilty by reason of insanity, and that an application for appointment of a sanity commission had been made, but there had not yet been a hearing regarding the defendant’s capacity to proceed. Counsel further stated that defendant’s Fifth Amendment privilege against compulsory self-incrimination would significantly hinder his opposition to the motion for summary judgment. The district court overruled the motion for continuance and proceeded with the hearing on summary judgment.

In opposition to the summary judgment, defendant filed an affidavit by his attorney stating the pendency of the criminal charges and that he had instructed his client to make no statement concerning the facts giving rise to the civil case or the criminal charges. No other pleadings, affidavits or other supporting documents were filed by defendant in opposition to plaintiff’s motion.

Following the hearing, the district court granted summary judgment in favor of plaintiff and awarded her damages in the sum of $200,000. Defendant appealed.

On appeal, defendant urges the district court erred in allowing the civil case to proceed during the pendency of criminal charges against him. He claims his Fifth Amendment privilege against self-incrimination precluded him from adequately divulging his defenses to the civil action.

We have previously recognized the conflict of interest resulting from interrelated civil and criminal actions proceedings against the same defendant. A civil plaintiff’s right to be compensated for his injuries without unreasonable delay must be weighed against the criminal defendant’s rights under the Fifth Amendment. Notwithstanding the obvious complexities raised by this conflict, we have held that plaintiff’s right to a civil remedy should prevail, and that the civil action need not await the finality of an interrelated criminal prosecution. State ex rel. Brasseaux v. Spell, 238 So.2d 254 (La.App. 3rd Cir. 1970), writ refused 256 La. 855, 239 So.2d 359; Bank of Commerce & Trust Company v. Prejean, 262 So.2d 798 (La.App. 3rd Cir. 1972).

A similar rule has been applied by the Federal Courts. DeVita v. Sills, 422 F.2d 1172 (3rd Cir. 1970); United States v. Simon, 373 F.2d 649 (2d Cir. 1967). In Gordon v. Federal Deposit Insurance Corporation, 427 F.2d 578 (D.C.Cir.1970), the court described this balancing of interests as follows:

“There may be cases where the requirement that a criminal defendant participate in a civil action, at peril of being denied some portions of his worldly goods, violates the concept of elementary fairness in view of the defendant’s position in an interrelated criminal prosecution. On the other hand, the fact that a man is indicted cannot give him a blank check to block all civil litigation on the same or related underlying subject matter. Justice is meted out in both civil and criminal litigations. The overall interest of the court that justice be done may very well require that the compensation and remedy due a civil plaintiff should not be delayed (and possibly denied). The court, in its sound discretion, must assess and balance the nature and sub-stantiality of the injustices claimed on either side.”

Defendant contends he was faced with the difficult choice between filing opposing affidavits and running the risk of self-incrimination or invoking his Fifth Amendment privilege and possibly subjecting himself to considerable civil liability. Nevertheless, the Fifth Amendment has not been construed so broadly as to relieve defendant of the burden of this choice. United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970).

The current criminal charges pending against defendant may require several years before final disposition. We think plaintiff is entitled to pursue her civil remedies without undue delay. Thus, we do not find the refusal to grant a continuance of the civil action to be an abuse of the district court’s sound discretion.

We will now consider the merits of the motion for summary judgment. LSA-C.C.P. Article 966 provides the general rule that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and 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.” LSA-C.C.P. Article 967 provides for affidavits supporting or opposing a motion for summary judgment. In the recent case of Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980) our Supreme Court held that opposing affidavits are necessary only after the moving party sustains his burden of proving by supporting documents all issues of material fact necessary to support mover’s case.

Applying these rules to the present case, we will examine the documents submitted by plaintiff in support of her motion for summary judgment. In an affidavit by plaintiff, she states she and her five children and another woman, Patricia Morrison, were living in a house with defendant. On the evening of October 13, 1979 she went to a movie with a Mr. Bennett. On her return, defendant approached plaintiff with a pistol and forced her into the house. There he armed himself with a shotgun and began to threaten plaintiff. Plaintiff stated that she owned a .25 automatic pistol which she had in her coat pocket at the time, but that defendant did not know this. Plaintiff decided she was going to leave the house with Mr. Bennett, who had returned. She called for the children to get dressed. At this point, defendant fired the first shot, hitting both plaintiff and Ms. Morrison, who had just entered the room. A second shot was then fired by defendant, striking plaintiff in her hip. Ms. Morrison was killed by the first shot. Plaintiff suffered severe injuries, she having been hit by both shots.

Plaintiff stated an ambulance came and took her to Huey P. Long Memorial Hospital in Pineville, where she had extensive surgery the first night. She was in the hospital nine days and then had out-patient treatment for several days.

Plaintiff states she has extensive scarring from the gunshot wounds and the surgery. Pellets from the second shot struck plaintiff directly in her left hip and exited on the left side of her back. Presently, she continues to have pain in her hip and back, and she walks with a limp. Riding in a car causes terrible pain in her hip and back.

Plaintiff also states she has a high school education and has worked in the past as a truck driver, secretary, cashier, and clothes model, among other things. She states she can no longer work because she experiences severe pain after sitting or standing for even short periods.

Attached to plaintiff’s affidavit are 17 pictures of her naked body showing the terrible gunshot wounds to her chest, abdomen, left hip and back. These pictures were apparently taken in the hospital immediately after the surgery.

Also filed in support of the motion for summary judgment are the records of the Huey P. Long Memorial Hospital in Pine-ville. These records describe the gunshot wounds, the surgery, the hospital care and the outpatient care provided by that facility. Included are 22 x-rays and 162 pages of records of medical treatment.

Also filed in support of the motion is the deposition of Dr. Daniel M. Kingsley, an orthopedic surgeon of Alexandria, to whom plaintiff first went on January 29, 1980, complaining of pain in the left hip and drainage from a large open wound that still remained on her hip. Dr. Kingsley describes the extensive scars which he found on her chest and buttocks from the gunshot wounds and the surgery. He summarizes his findings and diagnosis as follows:

“Q Okay, sir, did you see anything significant on the x-rays?
A I certainly did — she had a tremendous injury to the left sacroiliac joint area. The joint itself was irregular, either from gunshot or from subsequent infection — about four and a half inches of it was missing. The left side of the pubis symphysis was elevated compared to the right, and she said she did not even know about that previously. The middle portion of the left sacroiliac joint was irregular and partially destroyed. The right little finger was absent through the middle point of the mid-phalanx. My diagnosis was multiple gunshot wounds of the pelvis and other areas of the body with traumatic arthritis of the left sacroiliac joint. I told her that when the bones had healed fully that I would like to do a local anesthetic infiltration of the effected joint, and if that relieved her then I would consider arthrodesis, which means stopping the joint from moving whatsoever by doing a bone graft — It’s a big operation, and I told her to come back and see me in about six weeks.
Q Did she come back, doctor?
A Yes, sir. In the meantime a month after I first saw her on February 22nd., 1980, she had a fall from a standing position and sat down hard on her buttocks. She had had increased pains in the left side of her pelvis and the ilius since. I re-examined her and I took some more x-rays and I could see no new damage, and I thought she just had a sprain. I told her to use hot packs, rest, and I gave her some strong sedation. I saw her again as a follow up on April 8th, 1980, and there was no changes except x-rays showed increased healing of the bone fragments — the joint, sacroiliac joint is still messed up and it always will be.
Q Doctor did what you found in your x-rays, and your examination physically of her — were those findings consistent with her complaints of constant pain?
A Yes, sir.
Q To what would you attribute this pain?
A The sacroiliac joint has traumatic arthritis — That means it’s irregularity due to gunshot and possibly some infection, according to the history, and it has just enough movement to be painful. It’s a big joint — one of the biggest in the body — -about half of it is shot away.
Q I see. Assuming on a normal progress of this healing process that you just referred to, would you expect her to continue having pain?
A Yes, sir, that’s why I suggested further examination and observation and treatment.”

Plaintiff’s affidavit is clearly sufficient to resolve all material fact issues as to defendant’s liability. The facts set forth in the affidavit show that in a fit of anger defendant intentionally shot plaintiff twice with a shotgun at close range. There was no justification for the shooting. Thus, under Sanders v. Hercules Sheet Metal, Inc., supra, the burden shifted to defendant to present evidence showing that material facts were at issue as to liability. Defendant failed to present any opposing evidence.

As to the quantum of the award, the facts set forth above are clearly sufficient to support the award of $200,000. The burden shifted to defendant to present evidence showing any fact issues as to quantum. Defendant presented no evidence. Moreover, defendant makes no argument in his appellate brief that the award is excessive or that there are any fact issues as to the award. During oral argument before bur Court, we specifically asked counsel for defendant whether he contended there are any fact issues as to the quantum of the award, and counsel for defendant responded that there are not. If plaintiff had made any argument that there is a fact issue as to the quantum of general damages, we probably would find this case inappropriate for summary judgment.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the affirmance in this case. In cases in which the trier of fact must determine the quantum of general damages in a personal injury action, I am not convinced that judgment for a plaintiff on a motion for summary judgment is proper. The reason for my doubt is that determining quantum is a subjective consideration not subject to exact factual proof. Fixing general damages is a matter left to the sound discretion of the trier of fact, reviewable on appeal only as to abuse of discretion. Because of the very nature of quantum consideration I should think it cannot be said (in a case where quantum of general damages must be determined) that there is no genuine issue of fact. As noted in the principal opinion, this issue was raised at oral argument with defendant’s counsel. I interpret counsel’s response as a virtual concession or stipulation that the quantum fixed by the trial judge is correct. As neither party complains on appeal as to the quantum, they have in effect indicated that there is no genuine issue as to quantum.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Francis DETRAZ et al., Plaintiff-Appellee, v. Anthony FONTANA et al., Defendant-Appellant.
    No. 8331.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Anthony J. Fontana, Jr., of Theall & Fon-tana, Abbeville, for defendant-appellant.

      Simon & Dauterive, J. Minos Simon, Lafayette, for plaintiff-appellee.
    Broussard, Broussard & Moresi, Paul G. Moresi, Jr., Abbeville, for defendant-appel-lee.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

MOTION TO DISMISS

The appellees, Jewit Hulin and the Vermilion Parish Policy Jury, move to dismiss the appeal taken by the appellants, Anthony J. Fontana, Jr. and Charles Dore, from a judgment of the trial court dismissing their third party demand. We dismiss the sus-pensive appeal but maintain the appeal as a devolutive appeal.

On May 28, 1980, the appellants filed a third party demand against the Vermilion Parish Police Jury. On June 3, 1980, by a supplemental and amending third party demand, Jewit Hulin, secretary-treasurer of the Police Jury, was joined as third party defendant. The appellees subsequently filed a motion in the trial court to require the appellants to furnish bond pursuant to LSA-R.S. 42:261(E). The motion was opposed. On November 20, 1980, the trial court rendered judgment in favor of the appellee, requiring the appellants to furnish a bond in the amount of $15,000 to cover the costs of the appellees’ attorney’s fees no later than December 20, 1980, in default of which their third party demand be dismissed. On December 23, 1980, no bond having been filed, the trial court dismissed the appellants’ third party demand. The appellants moved for and were granted a suspensive appeal on January 7, 1981. No suspensive appeal bond was ever filed.

The appellees contend that the appeal must be dismissed because the suspen-sive appeal bond was not furnished within the delays allowed. We agree. There are two requirements which must be fulfilled within the appropriate delays in order to timely perfect a suspensive appeal. These are (1) obtain an order of appeal from the court which rendered the judgment, and (2) file a sufficient appeal bond. LSA-C.C.P. Articles 2121 and 2123. Willie v. Otasco, 347 So.2d 1215 (La.App. 1st Cir. 1977). The delay within which to take a suspensive appeal is provided for in LSA-C.C.P. Art. 2123:

“Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken and the security therefor furnished, only within thirty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.”

Because the appellants did not move for a new trial, the thirty day delay for taking a suspensive appeal from the judgment of December 23 began to run on January 5, 1981, seven clear days from the date of judgment. Therefore, the appellants had until February 4 to file their suspensive appeal bond. The appellants have never filed a bond, hence the suspen-sive appeal must be dismissed. However, when a suspensive appeal is not timely perfected and the motion for appeal is filed within the delay allowed for a devolutive appeal, it will be maintained as a devolutive appeal. Succession of Buvens, 373 So.2d 750 (La.App. 3rd Cir. 1979); Roche v. Big Moose Oilfield Truck Services, 371 So.2d 1374 (La.App. 3rd Cir. 1979). In the instant case the appellants filed their motion for appeal on January 7, 1981, well within the delay for perfecting a devolutive appeal. Therefore, this appeal will be maintained as a devolutive appeal.

The appellees also contend that this appeal should be dismissed because the judgment of November 20, 1980 has not been appealed and the delays for appeal have elapsed, therefore the appellants have voluntarily and unconditionally acquiesced in a judgment rendered against them and the appeal therefrom cannot be taken under the explicit provisions of LSA-C.C.P. Art. 2085.

This contention is without merit. The judgment of November 20, 1980 ordered the appellants to furnish bond to cover the appellees’ attorney’s fees. The appellants never furnished such bond and promptly moved for an appeal after the case was dismissed for failure to furnish the bond. It cannot be said that the appellees unconditionally acquiesced in the judgment of November 20, 1980.

The appellees’ last contention is that the judgment of November 20, 1980 ordering appellant to post the appropriate bond for costs is now final and therefore the question raised by this appeal is moot. We disagree. A judgment ordering a party to furnish bond under LSA-R.S. 42:261(E) is an interlocutory judgment. Iles v. White, 345 So.2d 1304 (La.App. 3rd Cir. 1977). Upon appeal from a final judgment of dismissal an appellate court may always review the correctness of the trial court’s interlocutory orders or judgments. People of Living God v. Chantilly Corporation, 207 So.2d 752 (La.1968); Texas Gas Transmission Corp. v. Soileau, 251 So.2d 104 (La.App. 3rd Cir. 1971); Washington v. Flenniken Construction Company, 188 So.2d 486 (La. App. 3rd Cir. 1966). A similar situation was confronted by the first circuit in Carville v. City of Plaquemine, 303 So.2d 289 (La.App. 1st Cir. 1973) when the plaintiff appealed a judgment dismissing his suit for failure to post bond for costs. The court in Carville held that the trial court’s order requiring the plaintiff to furnish bond for costs was reviewable on an appeal of the judgment of dismissal. We likewise conclude that this appeal from the judgment dismissing the appellants’ suit includes the review of the interlocutory judgment ordering the appellants to furnish bond for the appellees’ attorney’s fees.

For the above and foregoing reasons, the suspensive appeal is dismissed. We however, retain jurisdiction to review this matter as a devolutive appeal.

SUSPENSIVE APPEAL DISMISSED, DEVOLUTIVE APPEAL MAINTAINED.

      . 42:261
      E. Any party who files suit against any duly elected or appointed public official of this state of or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court.
      The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for costs, to cover such attorneys fees before proceeding with the trial of said cause.

      . Art. 2087. Delay for taking devolutive appeal
      Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
      (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolu-tive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.

      . Art. 2085. Limitations on appeals
      An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.


author: STOKER, Judge. FORET, Judge,

text:
    Ted GARDEMAL d/b/a Tripple G Welding Service, Plaintiff-Appellant, v. MCM INDUSTRIES, INC., Defendant-Appellee.
    No. 8134.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Rehearing Denied May 28, 1981.
    Writ Denied July 2, 1981.
    Harold L. Savoie, Lafayette, for plaintiff-appellant.
    Bean & Rush, Ernest L. Parker, Lafayette, for defendant-appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   STOKER, Judge.

This suit was brought as an open account suit by plaintiff Ted Gardemal doing business as Tripple G Welding Service. Petitioner alleges that he is a citizen of Lafayette, Louisiana. The suit is against MCM Industries, Inc., listed as having an address in Birmingham, Alabama. The suit alleges that the defendant is indebted to the petitioner “on open account for services performed and materials supplied in the full sum of $4,826.55.” The issue in this case is whether or not the Louisiana court had jurisdiction over the defendant which claims to be a foreign corporation.

The petition discloses very little in the way of facts. In form it is a typical open account suit which alleges that the petitioner supplied materials and labor at the request of defendant “on items of property of the defendant for which prompt billing was made.” Attached to the petition is an exhibit purporting to list an itemized statement of account.

In response to this petition the defendant filed an exception to the jurisdiction of the court alleging that it has not appointed an agent for service of process in this state and has not applied for or qualified to do business in this state. It further alleges that it has not conducted or transacted business in this state which would be sufficient to give a Louisiana court personal jurisdiction over it.

Service on the defendant was made under the Louisiana Long Arm Statute, LSA— R.S. 13:3201 et seq. The issue in the case is factual, that is, whether or not the defendant had minimal contacts with the State of Louisiana sufficient to give Louisiana jurisdiction in this matter.

The parties attempted to stipulate on the evidence but were unsuccessful as is reflected by a motion and order to fix the exception filed March 13, 1980, and which fixed the exception for trial and hearing on April 7, 1980, before Judge Carrol L. Spell. Tr. 22. A minute entry for April 7, 1980, indicates that with counsel for both parties present the exception came on for hearing on that date, witnesses were placed under the rule of sequestration, testimony and evidence was presented and that the court sustained the exception to the jurisdiction and dismissed the plaintiff’s suit at plaintiff’s cost. The record contains what is designated as a note of evidence on exception of personal jurisdiction consisting of a face sheet at transcript page 27 followed on page 28 by Reasons For Ruling given by the court. This note of evidence contains no transcript of any testimony or any indication of evidence introduced at the trial.

Either the testimony taken at the trial was not recorded or was not transcribed. The record does not contain a narrative of facts agreed to by the parties or made by the judge pursuant to the provisions of LSA — C.C.P. arts. 2130 and 2131. The respective claims of the parties present factual issues. Under the circumstances, this court must presume that the judgment of the trial court is correct and supported by sufficient competent evidence. Vaughan v. Fair, 337 So.2d 675 (La.App. 3rd Cir. 1976) and Succession of Walker, 288 So.2d 328 (La.1974) and cases therein cited.

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

AFFIRMED.

Before CULPEPPER, FORET and STOKER, JJ.

FORET, Judge,

concurring.

I concur in the result reached by the majority.

However, I do not subscribe to the statement made by the majority that where the testimony at trial was either not recorded, or if recorded, was not transcribed, and the record does not contain a narrative of facts agreed to by the parties or made by the judge pursuant to the provisions of LSA— C.C.P. Articles 2130 and 2131, and where the issues presented are factual, that this Court must presume that the judgment of the trial court is correct and supported by sufficient competent evidence. It is with this latter observation that I disagree. The majority cites Vaughan v. Fair, 337 So.2d 675 (La.App. 3 Cir. 1976) and Succession of Walker, 288 So.2d 328 (La.1974) and cases cited therein. Vaughan v. Fair does mention this presumption of correctness of the judgment of the trial court in such circumstances, citing and quoting from Succession of Walker. However, Walker does not indulge in such presumption. All that Walker says is that:

“The jurisprudence is uniform that, where there are factual issues involved and the record on appeal contains neither the transcript of the testimony nor an agreed statement of facts entered into between the parties or given by the trial judge, there is nothing for appellate review.” (Emphasis added.)

Walker goes on to say that under the provisions of C.C.P. Articles 2130 and 2131, it is up to the parties to see that the testimony is taken down in writing and that it is up to the appellant, if the testimony has not been taken down in writing, to request the other party to join with him in a written and signed narrative of facts. And, in case of a disagreement as to this narrative or a refusal to join in it at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of facts which shall be conclusive. However, this burden is upon the appellant. Succession of Walker, at the urging of appellant, considered a remand of the case to the trial court, but found that a remand would serve no useful purpose since it was apparently the testimony of the witnesses for the ap-pellees that was taken down and not transcribed, and further that the record did contain, on defendant’s behalf, a deposition of the alleged putative wife, which was vague and uncertain. Hence, the Supreme Court saw no useful purpose to be served by remand.

My point in this concurring opinion is again, that in my opinion, we need not indulge in the presumption of correctness of the trial court judgment, under these circumstances, but rather, we may base our decision on the fact that there is nothing for us to review, rather than indulging in a fictional presumption of correctness. It seems to me that to follow such a presumption is an abdication of our duties of appellate review under the Louisiana Constitution. In fact, in this case, if the appellant had asked for a remand, asserting that the testimony had been taken down but not transcribed, if this be the case, or that he had requested a narrative of facts in accordance with C.C.P. Articles 2130 and 2131, and same had been refused by either the appellee or by the trial court judge or both, then I could certainly have voted for a reversal and a remand. Such not being the case, I respectfully concur.

      . The reasons for judgment given by the trial court as contained on page 28 of the transcript are as follows:
      “REASONS FOR RULING
      “BY THE COURT: All right, in this matter, the Court will sustain the Exception to the Jurisdiction and order that the suit be dismissed at plaintiffs cost as the Court finds that the defendant is not transacting business in the State of Louisiana to come within the exception set forth in Revised Statute Title 13, Section 3201 of a sufficient nature to allow service under the Long Arm Statute. There have not been sufficient minimal contacts in the State of Louisiana to constitute the transaction of business in this State. Additionally, the evidence is to the effect that no Agent for Service of Process has been appointed in the State of Louisiana, nor has the corporation in question qualified to do business in the State of Louisiana. The Court accordingly will dismiss plaintiffs suit at plaintiff’s cost.”


author: CULPEPPER, Judge.

text:
    Lorena Ann TRAHAN et al., Plaintiffs-Appellees, v. MORRISON ASSURANCE COMPANY, INC. et al., Defendants-Appellants.
    No. 8137.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Brinkhaus, Dauzat & Falgoust, William A. Brinkhaus, Opelousas, for defendants-appellants, third party plaintiffs.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert S. Dampf, Lake Charles, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Timothy J. McNamara, Lafayette, for defendant-appellee.
    E. M. Nichols, Lake Charles, for plaintiffs-appellees.
    Before CULPEPPER, FORET and STOKER, JJ.
   CULPEPPER, Judge.

Plaintiff filed this suit for damages for personal injuries to her minor son, resulting from his shirt catching fire while he was playing with a cigarette lighter on September 30, 1976. Defendants are West Brothers of Eunice, Inc., who allegedly sold the shirt to plaintiff, and Morrison Assurance Company, the liability insurer of West Brothers. These two defendants filed third party demands against K-Mart Corporation, who allegedly sold the lighter to plaintiff, and Gillette Company, alleged manufacturer of the lighter. After various written interrogatories and answers thereto were filed by the plaintiff and the defendants, K-Mart filed a motion for summary judgment, attaching the affidavit of K. F. Moyer, the manager of K-Mart Store in Lake Charles, Louisiana. Moyer attested that from his personal knowledge and from a study of the records of the K-Mart Store, no cigarette lighters of the type in question were sold at the store prior to February 1, 1980, which was after August 22, 1976, the date on which the plaintiff stated in answer to a written interrogatory that she had bought the lighter at the K-Mart Store in Lake Charles. The district judge granted K-Mart’s motion for summary judgment and dismissed the third party demand against it. West Brothers and Morrison, third party plaintiffs, appeal.

The issue is whether there is a fact issue as to plaintiff’s purchase of the lighter from K-Mart.

The record shows that one of the written interrogatories propounded by West Brothers and Morrison to the plaintiff reads as follows:

“15.
“What is the brand name and the manufacturer of the cigarette lighter described in your petition and you are also required to state:
(a) The approximate date you purchased it;
(b) From whom you purchased it;
(c) The approximate price you paid for it;
(d) Describe in detail its physical characteristics and mode of operation;
(e) Whether you still have it and if not, when and why you discarded it;
(f) The type of fuel used in it;
(g) Whether it was a re-usable lighter.”

In response to this interrogatory, the plaintiff answered:

“15.
“Cricket disposable butane lighter.
(a) August 22, 1976.
(b) K-Mart — Lake Charles, Louisiana
(c) $1.49
(d) It was long and slim with a chrome top, and it was yellow. You had to push down on the end of the top and hold it down to light it.
(e) I threw it away on September 30, 1976, because I way angry and upset, and partly blaming the lighter.
(f) Butane.
(g) No.”

Attached to the motion for summary judgment by K-Mart is the affidavit of K. F. Moyer, who states that he has been the manager of the K-Mart Store at 4070 Ryan Street, Lake Charles, Louisiana, since September 9, 1968 and:

“3. That based on his own personal knowledge and based on a review of store records, he states that the first time ‘Cricket’ brand disposable butane lighters manufactured by Gillette Corporation were offered for sale at the K-Mart store was on or about February 27, 1980. These Cricket lighters were obtained in connection with K-Mart’s February, 1980 advertising program and they were obtained from the K-Mart distribution center in Shenandoah, Georgia and arrived in the K-Mart store here in Lake Charles on February 1, 1980. A total of 216 Cricket lighters were received and placed on sale at a price of two for one dollar. The regular non-sale price was 67 cents each.
“4. That of his own personal knowledge he states that Cricket lighters were never at any time offered for sale or sold to anyone by the K-Mart store here in Lake Charles prior to February 1, 1980 and that would include the month of August, 1976.”

LSA-C.C.P. Article 966 provides in pertinent part that summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.”

In the recent case of LeBlanc v. Landry, 371 So.2d 1276 (La.App. 3rd Cir. 1979), we stated the following rules regarding motions 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, (citing authorities) 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, (citing authority) 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, (citing authority)” Supra at page 1279 (emphasis added)

Applying these rules to the present case, there is a genuine issue of material fact which must be tried on the merits. Plaintiff states in her answers to interrogatories that she purchased the cigarette lighter in question from the K-Mart Store in Lake Charles on August 22, 1976. K-Mart’s manager of the Lake Charles store states in his affidavit that no such lighters were sold by this store prior to February 1, 1980. Plaintiff’s answer to the interrogatories is in conflict with the store manager’s affidavit, thus presenting a genuine issue of fact which is material to the third party demand against K-Mart. Therefore, the judgment appealed must be reversed.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of third party plaintiffs, West Brothers of Eunice, Inc. and Morrison Assurance Company, and against the third party defendant, K-Mart Corporation, denying K-Mart’s motion for summary judgment. This case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against K-Mart Corporation. Assessment of costs in the trial court must await a final judgment there.

REVERSED AND REMANDED.


author: CUTRER, Judge.

text:
    John D. FISH, Plaintiff-Appellee, v. COMMERCIAL UNION ASSURANCE COMPANY, Defendant-Appellant.
    No. 8144.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Brame, Bergstedt & Brame, David A. Fraser, Lake Charles, for defendant-third party plaintiff-appellant.
    McHale, Bufkin & Dees, Louis D. Bufkin, Lake Charles, for plaintiff-appellee.
    Plauche, Smith, Hebert & Nieset, Frank M. Walker, Jr., Woodley, Barnett, Cox, Williams & Fenet, Edgar F. Barnett, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

John D. Fish filed two suits for workmen’s compensation benefits. The first suit was filed against Fireman’s Fund Insurance Company (Fireman’s Fund), the insurer of Kaough & Jones Electric Company (Kaough & Jones), for disability benefits arising out of an accident occurring on September 7, 1976. The second suit by Fish was filed against Commercial Union Insurance Company (Commercial Union), the workmen’s compensation insurer of Fred Watson Electric Company (Fred Watson), seeking disability benefits arising out of an accident occurring on April 8, 1978 while Fish was employed by Fred Watson.

In the second suit, Commercial Union answered the suit and filed a third party demand against Bechtel, Inc. and Kaough & Jones, contending that any disability that Fish experienced after the accident of April 8, 1978, was contributed to or caused by accidents Fish suffered while employed by Kaough & Jones, occurring on September 7, 1976, and while employed by Bechtel, Inc., occurring during October or November of 1978.

The two suits were consolidated for trial. The trial court rendered judgment dismissing Fish’s first suit against Fireman’s Fund, the workmen’s compensation carrier of Kaough & Jones.

In the second suit, the trial court rendered judgment in favor of Fish and against Commercial Union, awarding total permanent disability benefits, medical expenses, penalties and attorney’s fees. The trial court judgment in the second suit also dismissed the third party demand of Commercial Union against Bechtel, Inc. and Kaough & Jones.

Commercial Union contends on appeal that, while Fish was injured in a work-related accident on April 8, 1978 when he was working for Fred Watson, the disability resulting therefrom did not extend beyond May 1978, the time of termination of compensation payments by Commercial Union. In the alternative it is contended that both accidents contributed to the disability and that both employers should contribute to any compensation benefits owed.

The issue presented is whether Fish’s disability resulted in whole or in part from the first accident (Kaough & Jones accident) or whether such disability is attributable to injuries received in the second accident (Fred Watson accident).

The issue is also presented as to whether penalties and attorney’s fees should have been awarded.

The issues are factual. The trial judge evaluated the medical and lay testimony and, in written reasons for judgment, made the following observations, with which we agree, as to the occurrence of the two accidents and their effect upon Fish’s ability to work.

“The evidence discloses that the plaintiff did suffer an accident in either September or October of 1976 while employed by Kaough and Jones Electric Company. According to Mr. Fish, he was climbing a ladder intending to change a light when he hit his head on an overhanging concrete beam. At that time he felt a popping and burning sensation in his neck. He consulted a Dr. Reaux who advised him to remain off the job for a few days. Thereafter, plaintiff returned to work for his employer, Kaough and Jones Electric Company but left after a month or so to go to work for Fred Watson Electric Company as a foreman. Plaintiff testified that he worked steadily for Fred Watson Electric Company, except for a short period in August of 1977, until he experienced the second accident in April of 1978. During this period of time (September, 1976 — April, 1978) plaintiff testified that he had pain in his neck and shoulders but he continued to work at his trade as an electrician. He did go into the hospital in August of 1977 when a myelogram was run by Drs. Borne and Foster with negative results. He also consulted Dr. Oates in Houston on two occasions and as a matter of fact, had an appointment scheduled with him at the time of the second accident.
“After hearing all of the evidence the Court concludes that plaintiff was experiencing some discomfort after his first accident up until the time of the second accident but that during this period of time he was fully able to perform his duties as a construction electrician. Under these circumstances, the Court is of the opinion that at the time of the second accident, although he may have been experiencing some discomfort and pain, the first accident did not render Mr. Fish disabled within the meaning of the workmen’s compensation act. The Court also finds that Mr. Fish’s difficulties subsequent to the second accident were not as a result of the first accident.
******
“According to the plaintiff, his second accident occurred when he was hurrying down an iron stairway covered with soda ash and wet with dew. As he neared the bottom of the stairway, his feet slipped out from under him causing him to fall a distance of approximately three feet and he landed in a sitting position. It is to be noted that Mr. Fish is a very large person weighing approximately 250 pounds and whose height is 6 foot 6 inches.
“Although plaintiff received emergency treatment at West Calcasieu-Cam Hospital and was released, he testified he experienced severe pain in his neck, shoulders and lower back, numbness of the legs and a tingling sensation in his hands. Subsequently, he sought treatment from or was evaluated by numerous orthopedic surgeons, neuro-surgeons, psychiatrists, pain specialists and the like. At trial most of these doctors either testified in person or by deposition. It has been demonstrated to the Court that even among experts there are degrees of expertise.
“The Court does not feel it necessary to go over the opinions and findings of each of the medical experts, counsel have ably done this in their memoranda. The Court does find, as Mr. Fish testified, he has been subject to disabling pain as a result of the accident of April 8,1978. The only relief that he has had has been as a result of medication prescribed by Dr. Rathmell and certain treatment given by Dr. Ralph F. Rashbaum of Plano, Texas. Dr. Rashbaum is an orthopedic surgeon who specializes in spinal disorders, neck pain, back pain, and, in his words, ‘things like that’. Dr. Rashbaum was successful in relieving Mr. Fish from some of his pain and prescribed a TNS unit. He explained that TNS is an abbreviation of ‘transcu-taneous nerve stimulator’. The purpose of this device is, by means of electrical shock, to interrupt a transmission of pain from an area to the brain. The Court was very impressed with the testimony of Dr. Rashbaum. It is unfortunate that plaintiff was not financially able to continue the treatment prescribed by this physician.
“Plaintiff testified that he attempted to work on at least two occasions after the second accident but could not continue to do so because of pain even though he wore the TNS unit. This Court concludes that plaintiff is totally and permanently disabled as a result of the accident of April 8, 1978.”

The trial court’s conclusion that Fish •was totally and permanently disabled and that such disability is attributable to the injuries received in the April 8, 1978 (Fred Watson) work-related accident is fully supported by the testimony of lay witnesses and the physicians.

Two fellow employees, who worked with Fish for Fred Watson, testified that during the months that Fish worked for Fred Watson prior to April 8, 1978, Fish had some complaints with his neck but such did not interfere with his ability to perform his regular duties as a full time electrician. Fred Watson, the employer also testified to substantially the same facts as the employees.

Also, Donald Chamblee, a Kaough & Jones supervisor, testified that Fish continued to perform his work adequately following his 1976 accident until the job terminated in December of that year.

There is a conflict of testimony among the physicians as to what part, if any, that the first accident may have played in contributing to Fish’s disability. The medical testimony is relatively consistent that Fish was disabled from performing his work after the April 8, 1978 accident.

Fish consulted with Dr. Borne, a neurosurgeon and partner of Dr. Foster, on August 3, 1977, after the Kaough & Jones accident. Fish was complaining principally of neck pain. Dr. Borne performed a mye-logram which was normal. Fish was referred to Dr. Bar-Sela of Houston who performed a special examination of the cervical region. This physician diagnosed peripheral neuropathy. Dr. Foster testified that this problem was not related to any trauma nor would it be affected by trauma.

Dr. Foster saw Fish after the Fred Watson accident in December 1979. He stated that the problem plaintiff was experiencing, affecting principally the back region, was not related to the injury received in the Kaough & Jones accident of 1976. This physician related the condition and disability of Fish solely to the Fred Watson accident of April 8, 1978.

Dr. James Oates, a specialist in physical medium and rehabilitation, saw Fish on February 28, 1978 (IV2 years after the 1976 accident). This physician found muscle inflammation in Fish’s neck and between his shoulder blades. Dr. Oates also saw Fish on April 17,1978, shortly after the second accident. He felt that the second accident had aggravated Fish’s pre-existing condition which was caused by the first accident. Commercial Union relies heavily on Dr. Oates’ testimony to support this position. Dr. Oates was the only physician who took the position that the injuries received in the second accident aggravated a pre-existing condition caused by the first accident.

Fish consulted with Dr. Aretta J. Rath-mell, a psychiatrist, on July 26, 1978. She was still seeing plaintiff at the time of the trial. Her impression was traumatic muscular skeletal injury and secondary psychosomatic reaction. She felt that his mid-thoracic pain was the pain giving him the greatest problems. When she first saw him she sent him to see Dr. Rashbaum in Plano, Texas for evaluation. Based on Rash-baum’s and her own evaluations she felt that plaintiff was suffering severe pain of the back and that there was both psychiatric and an organic basis for that pain.

She stated that since she has started treating plaintiff he has never been capable as working as an electrician on a day to day basis. In fact, she testified that Fish was unable to do any kind of work. She thinks that Fish could be treated in two ways. Both approaches are directed at destroying the function of the sympathetic nervous system, one' through surgery, the other through injections. She believes that Fish’s psychological problems would be quickly resolved if his pain was relieved. She stated that his psychological problems seem to have arisen only after the April 8, 1978 accident, getting progressively worse.

The plaintiff saw several other physicians, who testified herein. We have reviewed that testimony but feel that it is unnecessary to discuss the testimony of each of them. Suffice it to say that a review of the record reflects that the trial judge was correct in the conclusions he reached.

In summary, Fish’s complaints following the Kaough & Jones accident were confined principally to the cervical region. He incurred some discomfort and pain as a result thereof but such was not a substantial pain that would interfere with the performance of his normal duties as an electrician. Following the Fred Watson accident, Fish’s major complaint was in the upper and lower back regions. This injury created both psychiatric and organic problems which clearly disabled Fish from performing his duties as an electrician. This disability will ensue for an indefinite time in the future. Such disability was caused by the Fred Watson accident, thus, the trial court judgment was correct in its conclusions.

“... ‘The reviewing court must give great weight to the factual conclusions arrived at by the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable.’ .. ..”

West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La. 1979).

ATTORNEY’S FEES

We now turn to the question of whether or not the trial court correctly determined that Commercial Union was arbitrary and capricious in its termination of compensation benefits and refused to pay medical expenses.

Commercial Union has consistently refused to pay certain medical expenses. Dr. Rashbaum was still owed over $1,400.00 at the time his deposition was taken. Fish indicated that he had to pay many of his medical bills by borrowing from relatives. Fish, as well as Dr. Rathmell, testified that he has had to forego needed treatment because of a lack of funds. According to Dr. Rathmell, Fish’s financial circumstances have contributed greatly to his psychological problems.

Commercial Union attempts to justify its termination of compensation on May 3,1979 by pointing to Dr. Campbell’s release of Fish to return to work as early as September 11, 1978. Dr. Campbell specifically limited his findings as being from the orthopedic standpoint. Fish, however, had become Dr. Rathmell’s patient by July 1978. This physician never considered Fish able to return to work. With any investigation at all, Commercial Union could have discovered that Fish had trauma related problems which clearly reflected that Fish was disabled at the time the compensation payments were terminated.

As stated by the trial court:

“... where there has been no definite expression from the treating physicians that plaintiff’s disability had ended, it was incumbent upon defendant to inquire further to determine plaintiff’s true condition.”

Thibodeaux v. Home Indemnity Company, 331 So.2d 142 (La.App. 3rd Cir. 1976), writ den., 334 So.2d 433 (La. 1976).

No such inquiry was made by Commercial Union. Thus we find that Commercial Union was arbitrary and capricious in terminating compensation benefits and is thus liable for penalties and attorney’s fees.

We find, however, that the trial court’s award of $10,000.00 attorney’s fees is excessive. The case was a three day trial and involved a substantial amount of preparation and travel. We must note, however, that the trial involved two consolidated cases filed by Fish, one of which was dismissed. No attorney’s fees can be allowed for the unsuccessful trial of that case. We accordingly reduce the award of attorney’s fees to $5,000.00.

As we stated in Harkins v. Continental Oil Co., 385 So.2d 1216 (La.App. 3rd Cir. 1980), we do not mean to suggest that $5,000.00 is a limit for attorney’s fees in workmen’s compensation cases, we simply find that considering all aspects of the ease, that such an award is proper and sufficient here.

For the foregoing reasons, the award of attorney’s fees rendered by the trial court is reduced from the sum of $10,000.00 to $5,000.00. Otherwise, the District Court judgment is affirmed. The costs of this appeal are assessed four-fifths to defendant-appellant and one-fifth to the plaintiff-appellee.

AFFIRMED AS AMENDED.

      . The evidence is clear that Fish was not involved in any work-related accident while he worked for a short time for Bechtel. The dismissal of Bechtel is not at issue on appeal and will not be pursued any further herein.


author: DOMENGEAUX, Judge.

text:
    Noel HOLMES, Plaintiff-Appellant, v. VALLEY ELECTRIC MEMBERSHIP CORPORATION et al, Defendants-Appellees.
    No. 8147.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Watson, Murchison, Crews, Arthur & Corkern by R. Raymond Arthur, Natchi-toches, for plaintiff-appellant.
    Whitehead & McCoy C. R. Whitehead, Jr., Natchitoches, for defendants-appellees.
    Before DOMENGEAUX, CUTRER, and DOUCET, JJ.
   DOMENGEAUX, Judge.

Each year in June, Valley Electric Membership Corporation (VEMCO), holds an election to two or three of its seven Board of Directors seats. According to VEMCO’s by-laws, any member may be nominated for a seat on the Board of Directors by filing with VEMCO a nominating petition containing signatures of twenty-five members at least twenty days before VEMCO’s annual meeting. In 1980, VEMCO’s annual meeting was held June 28th. The deadline for submitting nominations by petition was June 9th.

Noel Holmes, plaintiff herein, desired to be elected to the Board of Directors of VEMCO. In April of 1980, he filed with VEMCO a nominating petition containing thirty-five signatures. Prior to the June 9th deadline, VEMCO received letters from eleven of the thirty-five signatories asking that their respective names be removed from plaintiff’s nominating petition. At a special meeting of the Board of Directors held after business hours on June 9, 1980, the Board removed eleven of the signatures on plaintiff’s nominating petition, as per the written request of those eleven signing members. After this action, plaintiff’s nominating petition was left with only twenty-four valid members’ signatures, one short of the required minimum of twenty-five. Consequently, plaintiff’s petition was invalidated by the Board and he was disqualified from running for a seat on the Board of Directors.

Plaintiff then filed this suit for a preliminary injunction prohibiting VEMCO and the Board of Directors, the defendants herein, from holding the election. Plaintiff also asked for an order forcing VEMCO to hold a new election with plaintiff’s name on the ballot. He also requested expenses and attorney’s fees. The trial court rejected all of plaintiff’s demands. Subsequently the election was held without Holmes’ name on the ballot. From that judgment, Holmes has perfected this devolutive appeal.

ON MOTION TO DISMISS

VEMCO has filed a motion to dismiss this appeal as being moot because the election has already been held. VEMCO argues that an injunction cannot afford Holmes any relief. Insofar as plaintiff’s request for a preliminary injunction is concerned, VEMCO’s contention must be sustained. However, in his petition, plaintiff requested an order forcing VEMCO to hold a new election with Holmes’ name on the ballot. This issue has not been rendered moot, therefore it is validly before this Court.

ON THE MERITS

It is plaintiff’s position, first, that he was automatically nominated the instant he filed his timely petition bearing the signatures of twenty-five or more VEMCO members. He argues that since the corporation’s by-laws contained no provisions for delayed nomination, nor for withdrawal of signatures from the petition, nor any other qualifications other than those met by plaintiff when he filed his petition, then the actions of the defendants in allowing withdrawals from the petition were ineffective and did not disqualify plaintiff’s nomination.

Secondly, it is the position of plaintiff that even if withdrawals were allowed, he still has the minimum twenty-five signatures required for nomination.

We affirm the trial court’s judgment deciding both issues in the defendant’s favor.

Plaintiff cites no authority for the proposition that persons signing the nominating petition could not subsequently withdraw their names before the filing deadline. Plaintiff relies only upon VEMCO’s by-law which neither permits nor denies the right of withdrawal. No Louisiana case has yet considered this precise point, but another case has decided a very similar issue in favor of those who withdrew their names from a recall petition. See Hawthorne v. McKeithen, 216 So.2d 899 (La.App. 1st Cir. 1968).

In Hawthorne, a petition was circulated for the purpose of recalling a School Board member. The petition contained a sufficient number of signatures to effect a recall election. After the petition reached the Governor’s Office, the Governor received a request from forty-nine persons who signed the original recall petition asking that their names be withdrawn. The Governor refused to order the recall election on the ground that, with the withdrawal of forty-nine signatures, the original petition failed to contain a requisite number of signatures. We find the situation in Hawthorne analogous to the one at bar and adopt its rationale. We hold that in the absence of a statute or of a provision in the corporation’s by-laws or of a decision by a higher court prohibiting the withdrawal of signatures from a nominating petition, a signature can be validly withdrawn if withdrawal is requested timely.

Alternatively, plaintiff argues that his petition contains a sufficient number of signatures even if the withdrawals are allowed. The evidence shows that there were thirty-five signatures on the petition. Before the June 9th deadline for filing nominating petitions, VEMCO received eleven withdrawal letters purportedly signed by eleven members of VEMCO who also signed the nominating petition. As to ten of these members, there is no question but that the members signed both the petition and the withdrawal letter or authorized another to sign for him. The only question involves the validity of the signature of Virginia Ann McCart on the nominating petition and on the withdrawal letter.

Among others, the nominating petition contained the names of Henry McCart, Jr., his wife Virginia Ann McCart, and his father Hamp McCart. Letters of withdrawal were subsequently filed with VEMCO for each of these three individuals. However, at trial, Vannie Rogers, the administrative assistant to VEMCO’s general manager revealed that she witnessed Henry McCart, Jr. sign Virginia Ann McCart’s name to the withdrawal letter submitted to VEMCO on Virginia’s behalf. She also witnessed him sign a withdrawal letter in his own behalf. There was no evidence that Henry McCart, Jr. was authorized to sign Virginia Ann McCart’s name to a withdrawal letter. Neither Henry nor Virginia testified as witnesses although it appeared that both may have been subpoenaed.

Plaintiff argues that the withdrawal of Virginia Ann McCart should be disregarded on the basis that her signature was forged. If Virginia Ann McCart’s withdrawal letter is disregarded, but her signature on the nominating petition is treated as valid, then plaintiff would have a total of twenty-five valid signatures on his petition, and a new election — with plaintiff’s name on the ballot — would be in order.

However, the trial judge disregarded Virginia Ann McCart’s signature altogether, leaving plaintiff with only twenty-four valid signatures. After reviewing the evidence, we cannot conclude that the trial judge committed manifest error in doing so. According to his reasons for judgment, the trial judge relied upon the testimony of Hamp McCart. Hamp McCart testified that he authorized his son, Henry McCart, Jr., to sign his name to plaintiff’s nominating petition. Subsequently, for reasons of his own, he authorized his son to sign his name to a letter withdrawing his name from the petition. He also testified that he was “pretty sure” that Virginia Ann McCart’s name got on the nominating petition the same way, i. e. that her name was also signed by Henry McCart, Jr. This testimony, although hearsay, was unobject-ed to. It was believed by the trial court even though Hamp McCart also testified earlier that he did not recognize Virginia Ann McCart’s signature and he did not know how her signature got on the petition.

Notwithstanding the conflicting testimony by the same witness, we cannot say that the trial court erred in believing that Henry McCart, Jr. signed his wife’s name to both the nominating petition and the letter of withdrawal. After examining the six McCart signatures (three on the nominating petition, three on the letters of withdrawal) one cannot help but believe that the same person penned them all. One need not be a handwriting expert to notice that the signature of Virginia Ann McCart on the withdrawal letter — proven at trial to be the signature of Henry McCart, Jr. — is strikingly and remarkably similar in many respects to the Virginia Ann McCart signature on the nominating petition. Additionally, we note that the plaintiff failed to prove that Virginia Ann McCart signed the nominating petition. Thus, there is ample evidence in the record to support the trial court’s determination that the signature of Virginia Ann McCart on the nominating petition is invalid.

For the above and foregoing reasons the judgment of the district court is affirmed. All costs are assessed against the plaintiff, Noel Holmes.

AFFIRMED.

      . Since the 20th day before the meeting was a Sunday, nominations could be filed until the close of the next business day, June 9th.

      . Plaintiff witnessed fifteen of the signatures and his friend, John H. Bell, plaintiff’s witness, testified that he witnessed sixteen of the signatures. However, neither one witnessed the signatures of Hamp McCart nor Virginia Ann McCart.


author: DOUCET, Judge.

text:
    Debbie MARTINEZ, Plaintiff-Appellant, v. Walter REYNOLDS et al, Defendants-Appellees.
    No. 8153.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Gravel, Robertson & Brady, Thomas K. Brocato, Alexandria, for plaintiff-appellant.

      Thomas S. Halligan and Carmack M. Blackmon, Baton Rouge, Cook, Yancey, King & Galloway, Edwin L. Blewer, Shreveport, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Debbie Martinez, brought this tort action to recover damages that she allegedly sustained as a result of her wrongful arrest by a Caddo Parish deputy sheriff. She named as defendants, Walter Reynolds, Chief Criminal Deputy, Rapides Parish; Marshall T. Cappel, Sheriff, Rap-ides Parish; Burl Young, Deputy Sheriff, Caddo Parish; Harold' M. Terry, Sheriff, Caddo Parish; and the State of Louisiana. The State of Louisiana filed a peremptory exception of no cause of action, which the trial court sustained, dismissing plaintiff’s suit against the state at her costs. From that judgment, plaintiff appeals.

Plaintiff’s claim against the state is predicated on the theory that the state is the employer of deputy sheriffs and is therefore vicariously liable for their wrongful conduct under LSA-C.C. Art. 2320. In urging its exception of no cause of action, the state denied the existence of any such employer status, and it relied upon LSA-R.S. 42:1441, which destroys any cause of action against the state for the tortious conduct of sheriffs and their deputies.

Although the trial judge did not specifically find that the sheriff’s deputies were not employees of the state, he concluded that the state did not have the requisite control and supervision over their activities needed to impose vicarious liability under LSA-C.C. Art. 2320, citing Savoie v. Fireman’s Fund Insurance Company, 347 So.2d 188 (La.1977). In addition, he found that any cause of action against the state, that might otherwise have existed, had been abolished by LSA-R.S. 42:1441, rejecting plaintiff’s argument that that provision violates Louisiana Constitution Article XII, Section 10.

On appeal, plaintiff has raised the following issues:

(1) Are sheriffs, and their deputies, employees of the State of Louisiana?
(2) Are the provisions of Act 318 of the Regular Session of 1978 (R.S. 42:1441) unconstitutional in light of Article 12, Section 10(a) of the Louisiana Constitution of 1974?
(3) Is Act 318 of the Regular Session of 1978 an illegal and unconstitutional act of the legislature because of the fact that its underlying Senate Bill Number 905 embraced more than one object, in contravention of Article 3, Section 15 of the Louisiana Constitution of 1974?

The concept that the State of Louisiana is the employer of deputy sheriffs and, as such, vicariously liable for their wrongful acts was first suggested by the Louisiana Supreme Court in Foster v. Hampton, 352 So.2d 197 (La.1977), wherein the court stated:

“ . . . [I]t is well settled that the deputy sheriff is an officer of the state. Williams v. Guerre, 182 La. 745, 162 So. 609 (1935); State v. Jones, 181 La. 390, 159 So. 594 (1935); State v. Titus, 152 La. 1011, 1016, 95 So. 106, 107 (1922). The State, then, may be considered the deputy sheriff’s ‘employer’. Although the doctrine of respondeat superior might be available to hold the State vicariously liable for the negligent torts of its employee in the course and scope of his employment, the State is not a party to this proceeding.” (footnote omitted).

The fact that the state was not a party to the proceedings when those comments were made gave rise to the conclusion that they were dicta and therefore only persuasive authority for later decisions. See Michaelman v. Amiss, 376 So.2d 1029 (La.App. 1st Cir. 1979).

Foster v. Hampton later revisited our Supreme Court, however, after being remanded for further proceedings. 381 So.2d 789 (1980). The plaintiff had filed an amended petition in the trial court naming the state as a defendant, and the issue before the Court was whether or not the trial court had erred in sustaining the state’s exception of prescription. In its opinion, the Court stated:

“The employment relationship between , the deputy sheriff and the State is established, for the reasons stated in the prior opinion of this court. Wambles v. State, 283 So.2d 331 (La.App. 4 Cir. 1973) insofar as it conflicts with that finding, is expressly disapproved.”

381 So.2d at page 790. The holding of our Supreme Court in Foster v. Hampton II, supra, leaves no doubt about the fact that deputy sheriffs are to be considered employees of the state. See, Michaelman v. Amiss, 385 So.2d 404 (La.App. 1st Cir. 1980); Rodrigue v. Breaux, 388 So.2d 60 (La.App. 1st Cir. 1980); Hryhorchuk v. Smith, 390 So.2d 497 (La.1980).

Were it not for subsequent legislative action, there would be no doubt about the fact that plaintiff has a cause of action against the state. However, subsequent to the decision in Foster v. Hampton I, our legislature enacted Act 318 of 1978, which effected two important changes in the laws of this state. First, it amended and reenacted LSA-R.S. 33:1433 to delete and repeal the following language:

“That no sheriff of any parish of this state, nor his sureties, shall be liable for any act or tort committed by one of his deputies, or by any person commissioned as deputy sheriff, by him, beyond the amount of the bond furnished by said deputy sheriff, unless said deputy sheriff, in the commission of the said act or tort, acts in compliance with a direct order of, and in the personal presence of, the said sheriff, at the time the act or tort is committed.”

Second, it enacted a new provision designated as LSA-R.S. 42:1441, which read as follows:

“A. The state of Louisiana shall not be liable for any damage caused by a district attorney, coroner, assessor, sheriff, clerk of court, or public officer of a political subdivision within the course and scope of his official duties, or damage caused by an employee of a district attorney, coroner, assessor, sheriff, clerk of court, or public officer of a political subdivision.
“B. The provisions of Subsection A hereof are not intended to and shall not be construed to affect any personal liability which may arise from damage caused by any public officer of a political subdivision, or by a district attorney, coroner, assessor, sheriff, clerk of court, or the employee of any such public officer, nor shall the provisions of said Subsection A be construed to amend or repeal R.S. 13:5108.1.
“C. For the purposes of this Section, ‘political subdivision’ means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.”

We believe that by enacting Act 318 of 1978 the legislature intended to legislatively overrule Foster v. Hampton I, supra, by compelling victims of torts committed by deputy sheriffs to seek their relief from the deputies and the sheriffs who hire, control and supervise them, rather than the state, which has virtually no control over their activities. See Wambles v. State, 283 So.2d 331 (La.App. 4th Cir. 1973). It sought to accomplish that purpose by expanding the liability imposed on sheriffs and eliminating any cause of action against the state. We are aware of the fact that our brethren of the Fourth Circuit do not share our view that the legislature intended to broaden the liability of sheriffs by amending LSA-R.S. 33:1433 in Section 1 of the act. Jenkins v. Jefferson Parish Sheriff’s Office, 385 So.2d 578 (La.App. 4th Cir. 1980). Nevertheless, we believe that that was clearly the intent of the legislature.

In another recent decision, the Fourth Circuit held that LSA-R.S. 42:1441 does not preclude actions against the state for damages arising out of torts committed by deputy sheriffs. Carmouche v. Oubre, 394 So.2d 805 (La.App. 4th Cir. 1981), docket number 11590, decided February 5, 1981. The Court concluded that LSA-R.S. 42:1441 was not applicable to such cases, because under the holding in Foster, a deputy is not an employee of the sheriff.

With due respect to our brethren, we cannot agree with that reasoning. We do not understand Foster to mean that a deputy sheriff is not an employee of the sheriff as well as the state. Furthermore, we take notice of the fact that deputy sheriffs are ordinarily understood to be employees of the sheriff. “The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.” LSA-C.C. Art. 14.

We conclude that LSA-R.S. 42:1441 applies to deputy sheriffs, destroying any cause of action against the state arising out of their tortious conduct. Our next inquiry is whether this effect is constitutionally premissible. Plaintiff contends that it is not, because it violates Louisiana Constitution Article XII, Section 10(A), which provides:

“Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”

Plaintiff argues that the abolition of her cause of action against the state amounts to a grant of governmental immunity in violation of the above provision.

We find no merit in that argument. Regulation of causes of action, including replacement and even abolition of causes of action that one person may have against another for personal injuries, is a valid legislative function. Burmaster v. Gravity Drainage District No. 2, 336 So.2d 1381 (La.1978), and authorities cited therein. We do not believe that the above constitutional provision can be so broadly construed as to deprive the legislature of this right, at least under the circumstances present in this case.

Plaintiff is not being denied the right to recover for her alleged injuries simply because the defendants are governmental entities. By contemporaneously amending LSA-R.S. 33:1433 to remove the former limitations on the liability of sheriffs, the legislature has provided her with an adequate remedy. She is simply being compelled to seek her relief from the parties who were in the best position to prevent such injuries. Thus, the act creating LSA-R.S. 42:1441 had a legitimate purpose, which does no violence to Article XII, Section 10(A) of the Constitution.

Although his statement of the issues does not reflect it, counsel for plaintiff also argues that LSA-R.S. 42:1441 violates Louisiana Constitution Article I, Section 22, which provides:

“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

We find no merit in that argument. As we noted earlier, plaintiff has an adequate remedy for her alleged injuries. Furthermore, she has not been deprived of a vested property right, which is protected by the guarantee of due process. As our Supreme Court stated in Burmaster v. Gravity Drainage District No. 2, supra:

“Where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. See Gibbes v. Zimmermann, 290 U.S. 326, 332, 54 S.Ct. 140 [142], 78 L.Ed. 342 (1933); Pritchard v. Norton, 106 U.S. 124, 132, 1 S.Ct. 102 [108], 27 L.Ed. 104 (1882). However, where the injury has not yet occurred and the cause of action has not yet vested, the guarantee of due process does not forbid the creation of new causes of action or the abolition of old ones to attain permissible legislative objectives. See Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57 [58], 74 L.Ed. 221 (1929).”

366 So.2d at page 1387. See also, Branch v. Aetna Casualty & Surety Company, 370 So.2d 1270 (La.App. 3rd Cir. 1979). Since the allegedly wrongful arrest did not take place until after the effective date of Act 318 of 1978, plaintiff did not have a vested right to a cause of action against the state.

The only remaining issue is whether Act 318 of 1978 violates Louisiana Constitution Article III, Section 15 by having move than one object. Because this was not one of the grounds particularized by plaintiff when she attacked the constitutionality of LSA-R.S. 42:1441 in the trial court, we are not at all certain that this issue is properly before us. See Johnson v. Welsh, 334 So.2d 395 (La.1976); Lewis v. Till, 387 So.2d 706 (La.App. 3rd Cir. 1980). In any event, we find no merit in plaintiff’s argument that the act has more than one object.

The word “object” as used in Article III, Section 15 is broadly defined. The object of a law is its aim or general purpose. State v. Dooley, 261 La. 295, 259 So.2d 329 (1972). As we discussed earlier, the obvious purpose of Act 318 of 1978 was to shift responsibility for the tortious conduct of deputy sheriffs and other government employees from the state to the various local governmental entities that actually hire them and control and supervise their work. That was the only purpose or object of the act that we are able to discern. Accordingly, we find no violation of Article III, Section 15 of the Constitution.

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.


text:
    Rena G. SEMIEN, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 8157.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      McBride & Brewster, Glynn Rozas, Lafayette, for defendant-appellant.
    Tate, Tate & Tate, Paul C. Tate, Mamou, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This case arises from an intersectional automobile collision. At issue is whether the nonfavored motorist pre-empted the intersection prior to the collision.

Laurel Street is a four lane undivided highway running east and west in the town of Eunice. Mallet Street is a two lane street running north and south which intersects Laurel Street. Southbound and northbound traffic on Mallet is controlled by stop signs at Mallet’s intersection with Laurel; traffic on Laurel has the right of way.

On July 25, 1979 between 4 P.M. and 5 P.M., Felissa Semien was northbound on Mallet when she stopped at the intersection of Laurel and Mallet, looked both ways, and proceeded to drive her mother’s 1967 Chevrolet across Laurel at a speed of 5 to 10 miles per hour. She testified that she was driving slowly because it was raining. Before she had completed crossing Laurel’s four lanes, the Chevrolet was struck on the right side near the rear by a 1978 Ford driven by Diana L. Glaze, who had been traveling in a westerly direction on Laurel’s outermost westbound lane when the accident occurred. The 1978 Ford was owned by Otis Cole, Jr., and was insured by State Farm Mutual Automobile Insurance Company (State Farm).

Thereafter, in Eunice City Court, Rena G. Semien, Felissa’s mother, brought this suit against State Farm to recover for the damage to her car, which the parties stipulated amounted to $787.02. She also sought $450.00 as compensation for inconvenience and for the loss of use of her automobile.

Felissa Semien instituted a separate suit against State Farm seeking damages for personal injuries she claims to have suffered in the accident.

The two suits were consolidated. After a trial on the merits, the City Judge found that Ms. Glaze was negligent and that Fel-issa Semien was not contributorily negligent. Judgment was rendered in favor of Rena Semien and against State Farm for $937.02-$787.02 for repairs, and $150.00 for inconvenience and loss of use of the damaged automobile. Felissa Semien was awarded $750.00 for the mild whiplash she received in the accident.

State Farm has appealed, contending that Felissa Semien is barred from recovering for personal injuries because she was con-tributorily negligent. The defendant also contends that Rena Semien is barred from recovering from the defendant because the negligence of Felissa Semien, who was a minor at the time of the accident, is imputable to Rena Semien.

We agree that Felissa Semien is barred from recovery because she was negligent. We do not agree that her negligence is imputable to her mother, thereby barring recovery by Rena Semien.

Felissa Semien and Ms. Glaze were the only witnesses to the accident who testified. The investigating police officer also testified but he arrived at the scene after the accident occurred.

Ms. Semien testified that she stopped at Mallet’s intersection with Laurel, looked both ways, and then decided to cross the highway, thinking that the road was clear enough for her to go. While she was crossing Laurel’s eastbound lanes, she saw the Glaze vehicle approaching from the east or her right, but still felt that she could cross Laurel safely, even though she was only going 5 to 10 miles per hour. However, as she entered the outermost westbound lane in which Ms. Glaze was traveling, her mother’s Chevrolet was struck on the right rear side.

Ms. Glaze testified that she was traveling in Laurel’s outermost westbound lane at 32 miles per hour when she suddenly saw the Semien vehicle about to enter Laurel’s two westbound lanes. At that moment she blew her horn and applied her brakes, but because the road was wet and slippery, she skidded into the Semien vehicle. Ms. Glaze did not notice the Semien vehicle earlier, she said, because her view of the car was obstructed by eastbound vehicles on Laurel that crossed Mallet just before Felissa Sem-ien attempted to cross Laurel. Ms. Glaze stated that she did not swerve into the inside westbound lane to avoid the accident because another vehicle, slightly behind her, already occupied that lane.

Since Felissa Semien had already crossed three of Laurel’s four lanes before the accident, the judge felt she had pre-empted the intersection. He held that Ms. Glaze should have operated her vehicle in such a manner as to be able to stop. Her inability to stop her vehicle in time to avoid the accident amounted to negligence. He found that Ms. Semien was not negligent. We disagree.

In order for the doctrine of pre-emption to apply favorably to Felissa Semien in this instance, the evidence must show that the driver on the inferior street (Ms. Sem-ien on Mallet) entered onto the favored street (Laurel) when she had a reasonable opportunity to complete the crossing without endangering or impeding the passage of vehicles on the superior roadway. Burge v. Doty, 279 So.2d 273 (La.App. 2nd Cir. 1973), writ denied 281 So.2d 757 (La.1973); Williams v. Garner, 268 So.2d 56 (La.App. 1st Cir. 1972); Decker v. Employers Liability Assurance Corporation, 247 So.2d 232 (La. App. 4th Cir. 1971), writ denied 258 La. 915, 248 So.2d 586 (1971).

We find the doctrine of pre-emption inapplicable. The evidence shows that Fel-issa Semien violated her duty, under La. R.S. 32:123B, to yield to vehicles on the favored street which are so close to the intersection as to constitute an immediate hazard. Although Ms. Semien testified that she looked both ways and thought she could safely cross Laurel even though she saw the Glaze vehicle approaching, we conclude from the facts of the accident that she made an error in judgment. Ms. Sem-ien offered no compelling reason to show why she felt she could cross Laurel in the face of the rapidly approaching Glaze vehicle. Indeed, she admitted that she drove across the intersection very slowly because of the rain, thereby depriving herself of any opportunity she may have had to cross Laurel Street safely. Under these circumstances, we hold that it was unreasonable of her to assume that a safe crossing could be accomplished. Therefore, we conclude that the trial judge committed manifest error in holding that Felissa Semien was not negligent. We note that Moss v. Travelers Indemnity Company, 351 So.2d 290 (La.App. 3rd Cir. 1977), writ denied 353 So.2d 1036 (La.1978); and Gauthier v. Fogleman, 50 So.2d 321 (La.App. 1st Cir. 1951) are inapplicable. Those cases held that a motorist on a nonfavored street who was crossing a street with the right of way in apparent safety is not negligent, when, before the crossing is complete, his vehicle is struck by a vehicle on a favored street which is traveling at an excessive rate of speed. In the instant case, there is no evidence whatsoever that Ms. Glaze was traveling at an excessive speed when this accident occurred.

However, we find no manifest error in the trial judge’s determination that Ms. Glaze was negligent. We feel that there is a sufficient evidentiary basis to warrant such a finding. The judge may have disbelieved Ms. Glaze’s testimony that the eastbound traffic blocked her view of plaintiff’s car. This testimony contradicts the testimony of Felissa Semien that she saw the Glaze vehicle before she attempted to cross Laurel Street. Assuming that the judge believed Ms. Semien’s testimony to be more credible, there was no reason for Ms. Glaze not to have seen the plaintiff’s car before it reached the westbound lanes of Laurel Street. Ms. Glaze’s failure to see plaintiff’s car sooner amounts to failure to maintain a proper lookout. See Decker and Burge for similar findings of negligence on the part of the driver with the right of way. (We note that in these cases the driver on the unfavored street who was crossing the favored street was also found to be negligent.)

No evidence was introduced to prove that Felissa Semien was acting as agent for her mother when the accident occurred. Thus, Felissa’s negligence is not for that reason imputable to Rena. Nor is Rena responsible for the damages occasioned by Felissa’s negligence simply because Felissa was a minor at the time of the accident. Under La.C.C. Art. 2318 the father, not the mother, is responsible for the damage occasioned by the minor children. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Deshotel v. Southern Farm Bureau Casualty Insurance Co., 224 So.2d 191 (La.App. 3rd Cir. 1969). Although State Farm alleged in its answer that Rena had legal custody of Felissa incident to a judgment of divorce and custody decree, the defendant failed to introduce any evidence to substantiate its allegation.

Although we find that the damage to Rena’s automobile was caused by the concurrent negligence of both drivers—Fel-issa and Diana Glaze—we will not disturb the $937.02 award rendered in Rena Sem-ien’s favor against State Farm. Since the cotortfeasors are solidarily liable, under La. C.C. Art. 2324, either of them (or either of their insurers) may be sued for the entire amount of the damages sustained by the injured party as a result of the tortfeasors’ negligence. Rena elected to sue only the insurer of one cotortfeasor. While we realized that State Farm is entitled to contribution from the other tortfeasor, under La. C.C. Art. 2103, no demand for contribution has been made and no evidence establishes the identity of the party responsible, under La.C.C. Art. 2318, for the damage caused by Felissa while she was a minor.

For the above reasons the judgment of the City Court of Eunice which awarded plaintiff, Rena G. Semien, the amount of $937.02 against the defendant State Farm Mutual Automobile Insurance Company is affirmed. Costs are assessed against State Farm.

AFFIRMED.

      . A separate opinion is being rendered in Felissa Semien v. State Farm Mutual Automobile Insurance Company, # 8158, for the reasons expressed herein.


text:
    Felissa SEMIEN, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 8158.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    McBride and Brewster, Glynn Rozas, Lafayette, for defendant-appellant.
    Tate, Tate and Tate, Paul C, Tate, Mam-ou, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

For the reasons assigned in the companion case of Semien v. State Farm Mutual Automobile Insurance Company, 398 So.2d 161 (La.App. 3rd Cir. 1981), we find that Felissa Semien was guilty of contributory negligence. Thus, her recovery is barred. Accordingly the judgment of the City Court of Eunice which awarded Felissa Semien $750.00 against State Farm Mutual Automobile Insurance Company is reversed. It is hereby Ordered, Adjudged, and Decreed that plaintiff’s suit against the defendant be dismissed. All costs are assessed against the plaintiff, Felissa Semien.

REVERSED.