author: BARRY, Judge.

text:
    Elizabeth Eva Bruzdzinski, Wife of Leo Peter ALPHONSO, Sr. v. Leo Peter ALPHONSO, Sr. The STATE of Louisiana in the Interest of Walter Lee ALPHONSO, Tammy Marie Alphonso, (A/K/A Tammy Marie Thomas) and Stephanie Cuccia Alphonso (A/K/A Stephanie Cuccia).
    Nos. 13197, 13198.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Nel F. Vezina, Gretna, for plaintiff-appel-lee.
    George W. Gill, Jr., New Orleans, for defendant-appellant.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   BARRY, Judge.

Plaintiff sued her husband for a separation, alleging cruel treatment, defamation and abandonment. The husband recon-

vened for a divorce based on his wife’s alleged “homosexual adultery.” Both parties sought custody of their 4 year old son. Defendant-husband also filed a petition in juvenile court for custody of two older children plaintiff had by other men. The trial court granted plaintiff a legal separation and awarded her custody, alimony and child support, and dismissed the juvenile proceeding. Defendant appeals the separation judgment and the rejection of his reconven-tional demand for divorce; alternatively, defendant argues a separation should have been granted in his favor. Defendant also appeals the dismissal of his petition for custody of his wife’s two children.

Defendant’s first assignment of error is that, because plaintiff’s testimony regarding defendant’s cruelty was controverted by defendant and uncorroborated by any other witnesses, the evidence was legally insufficient to support a separation judgment in plaintiff’s favor. We agree with the principle expressed in Walker v. Walker, 159 So .2d 344, 346 (La.App. 2d Cir.1963), quoted in Johnson v. Johnson, 296 So.2d 470, 472 (La.App. 2d Cir.1974), writ denied, 300 So.2d 183 (La.1974) that:

Where the unsupported testimony of a party having the burden of establishing a particular fact is contradicted by the testimony of the other party and the credibility of neither is attacked, in the absence of corroborating evidence or circumstances, it cannot be said that the party'having the burden of proof has sustained that burden.

Plaintiff testified that her husband verbally threatened and harassed her; that on at least one occasion he physically abused her, shoving her against a dresser when' she asked for money for their child; that, although she had no income and receives food stamps and welfare payments, he refuses to support her and their child; that he has accused plaintiff of having a lesbian relationship with Jean (“Tiny”) Hess, a 17 year old whom the couple had taken into their home for alcoholic rehabilitation; and that defendant tacked a note on the door of their trailer, telling his wife to “Get out.”

Two unrelated corroborating witnesses, Dena Hess and “Tiny” Hess, testified plaintiff was a good wife and mother and gave defendant no cause to abandon her or order her to leave their home. Tiny testified that, shortly before the couple’s separation, defendant ordered Tiny to leave their home, which she did. Defendant himself did not deny he ordered his wife and Tiny to leave their home, and the evidence indicates defendant was unwilling to live with his wife because of his attitude toward Tiny. Plaintiff’s testimony regarding defendant’s accusations of her homosexuality is corroborated by defendant’s own pleadings and brief in these suits.

Defendant conceded he is employed as a welder’s helper, earning about $300.00/week, but that he has given his wife only $300.00 for herself and their child since the couple’s first separation in January of 1981. Defendant' further admitted that he has not offered plaintiff any money for support since March, 1981, “... but I told her that when she got Tiny out of that house, I would give her and the children full support.” Defendant admitted he used almost $4,000.00 from accounts receivable of his boat company (which was community property) for his own purposes. A note from defendant to plaintiff, which accompanied his last check to plaintiff, Stated, “I guess you have sense enough to realize I don’t owe you a dam [sic] thing.”

As to the defendant’s reconventional demand, the Trial Judge stated:

And as far as the defendant’s case on homosexuality or the alleged homosexuality of the plaintiff, Mrs. Alphonso and this young 17 year old girl, I think it is entirely false. I don’t believe one single witness that testified as to what happened because it was so unlikely for it to happen and I think every one of them had prejudices and reasons to testify the way they did testify and I find their testimony not worthy of belief.

Although defendant called witnesses to support his contention of his wife’s relationship with Tiny Hess, only two gave “eyewitness” testimony. Louis Alphonso, defendant’s son by a prior marriage, claimed he observed lesbian activities between plaintiff and Tiny while on a trip to a church-sponsored event. While this incident supposedly occurred a year and a half before trial, the witness never confronted plaintiff or Tiny or mentioned it to his father until a few weeks before trial. Roy Hess, Tiny’s brother, was the other witness who purportedly observed homosexual behavior, but he conceded that he and his sister “fight all the time,” and his sudden revelation of his observations occurred after an altercation between plaintiff, Tiny and himself.

Defendant’s other evidence on this issue consisted of testimony from defendant’s other son by a previous marriage, his sons’ girlfriends, and several others who said plaintiff and Tiny had slept together, sometimes with one or more of plaintiff’s children. Both plaintiff and Tiny explicitly denied they had ever engaged in any lesbian activity.

The Trial Judge chose to believe plaintiff and Tiny, rather than defendant’s witnesses, and we cannot say that his granting plaintiff a separation was manifestly erroneous. As an appellate court we accord great weight to the fact findings and conclusions of the Trial Judge who was in a position to observe the witnesses and their demeanor. It is not within our province to disturb reasonable evaluations of credibility or reasonable factual inferences, even though other, equally reasonable, conclusions could have been reached. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Defendant complains the trial court erred in rejecting his reconventional demand because he was prohibited from introducing additional evidence of plaintiff’s alleged adultery, under the “cumulative evidence” rule. While defendant proffered the testimony of several other witnesses on that point, he apparently admitted he had no other “eyewitness” evidence and the additional testimony would duplicate previous testimony that plaintiff and Tiny slept together. The trial court’s ruling prohibiting cumulative testimony was omitted from the record, but defendant’s attorney did state “I have other witnesses but we move to release them as being accumulative [sic].” Defendant contends in a supplemental brief that this statement did not constitute an admission that the additional testimony would be cumulative, but was merely a motion in compliance with the judge’s ruling. Defendant argues strenuously that the “cumulative evidence” rule is applicable only to “additional or corroborative evidence ... which goes to prove what has already been established by other evidence.”

It is our understanding, however, that the suppressed testimony would only have reiterated prior testimony that Tiny lived with plaintiff and her children, and that under various circumstances the two had shared the same bed. The trial court obviously believed that point had already been established, but did not accept any inference that such togetherness implied homosexual activity. As noted above, the trial court’s findings on credibility and factual inferences are accorded great weight and we do not find manifest error.

Defendant’s last specification of error is that the trial court erred in dismissing, without a hearing, the juvenile court proceeding concerning custody of plaintiff’s two children. That proceeding was initiated when defendant filed a petition to have plaintiff’s older children adjudged to be “in need of care.” The lower court initially agreed to consolidate the juvenile proceeding with the separation action; however, the Judge decided not to hear evidence on the juvenile matter because the state was not made a party. Thus, although there was some testimony regarding the two older children, the matter was not fully tried. At the conclusion of trial, plaintiff’s attorney made an instanta motion that the court order an investigation by the La.Dept. of Health & Human Resources to determine the suitability of plaintiff’s home for her two older children. The trial court denied that motion, ruled orally that plaintiff retain custody of all three children, and dismissed the juvenile petition. Because it appears the juvenile proceeding was properly filed but not fully investigated and tried, we remand for further proceedings in accordance with the Code of Juvenile Procedure.

Accordingly, the judgment of the trial court awarding a legal separation in favor of plaintiff and denying defendant’s recon-ventional demand is affirmed. The judgment dismissing proceeding # 13198 is hereby reversed and that matter is remanded for further proceedings in accordance with the views expressed herein. Costs of proceeding # 13197 are assessed to the defendant/appellant.

AFFIRMED IN PART; REVERSED IN PART; REMANDED IN PART.

      . We are aware of only one case which discusses homosexual activity by a spouse as “adultery” under LSA-C.C. Arts. 138 and 139. In Adams v. Adams, 357 So.2d 881 (La.App. 1st Cir.1978), the court said homosexual adultery could be an independent ground for separation or divorce, and found that wife’s lesbian relationship constituted “cruel treatment” entitling the husband to a separation.


source: Caselaw Access Project

license: Public Domain

text:
    Clarence BROWN v. LYKES BROTHERS STEAMSHIP COMPANY, INC. and the Hartford Insurance Company.
    No. 13275.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Joseph M. Bruno, Bruno & Bruno, New Orleans, for plaintiff-appellee.
    William E. Wright, R.D. Allen, Terriber-ry, Carroll, Yancey & Farrell, New Orleans, for defendant-appellant.
    William V. Renaudin, Jr., Kenny M. Charbonnet, New Orleans, for intervenors-appellees.
    Before BARRY, LOBRANO and WILLIAMS, JJ.

      . His affidavit stated appellants’ counsel were warned on May 22 of the Doctor’s scheduled surgery on May 26; however, the court was not advised of his inability to be present until May 26.

   BARRY, Judge.

This case involves a claim for damages which arose when plaintiff’s foot was run over by a forklift owned and operated by Interocean Stevedoring Inc. (ISI). Named as defendants were Lykes Brothers Steamship Company, Inc. (Lykes), ISI, and Hartford Insurance Company as the liability insurer of both Lykes and ISI. Liberty Mutual Insurance Company, compensation carrier for plaintiff’s employer, Neeb-Kearney & Co., Inc., intervened for reimbursement of benefits. It was stipulated Liberty Mutual paid $11,970.09 in medical and other benefits. Lykes, and its insurer, Hartford, were dismissed prior to trial. A 10-2 jury rendered a $70,000.00 verdict for plaintiff and against ISI and Hartford. No special interrogatories were submitted to the jury; only a general verdict form was used. A new trial was denied and defendants appeal alleging numerous specifications of error.

FACTS

On January 8, 1980, plaintiff, a 13 year employee of Neeb-Kearney and a 30 year laborer on the waterfront, was working in a warehouse as a stenciler while co-workers were palletizing cargo in a warehouse at the Nashville Avenue wharf. A truck had delivered crates of salid oil, already palle-tized, and the Neeb-Kearney forklift removed the pallets from the trailer and placed them in two lines parallel to the railroad tracks and the river. There were approximately 16 pallets each holding 64 crates of salad oil. After the forklift completed the unloading, an ISI forklift was to position empty ISI pallets and the crew was to transfer the cargo from the Neeb-Kear-ney pallets to the ISI pallets. The ISI forklift operator had completed placing empty pallets on the river side of the warehouse and was in the process of or had just finished positioning the empty pallets on the railroad track side when the accident happened. Plaintiff was to the left of the forklift on the railroad track side and was attempting to pass behind the forklift to join the rest of the crew on the right river side in order to stencil the salad oil cartons. Mr. Picou, operator of the ISI forklift, had just put down a pallet and stopped. At this point plaintiff crossed behind the forklift and Picou backed up the forklift, causing its left side to roll over plaintiff’s right foot.

NEGLIGENCE

Appellants submit the evidence does not establish any negligence by the forklift operator. They claim it is common knowledge of waterfront employees to stay clear of these machines, and plaintiff’s presence behind the forklift was unexpected, unforeseeable, and not a risk a reasonably prudent man in Picou’s situation would have anticipated. They argue the area where the accident occurred was used exclusively for storing and handling cargo and all workers except plaintiff were away from the rear of the machine.

Plaintiff responds the record furnishes a reasonable factual basis to conclude defendant’s employee was negligent. We agree. Picou candidly admitted he did not look behind him before plaintiff was struck and he was not aware of plaintiff’s presence until after the accident. The evidence shows that there were several pedestrain workers in the same vicinity and the nature of the operations (the forklift positions empty pallets, the crew repalletizes boxes and marks them for identification) required a close proximity between the lift and the workers in the warehouse.

Actionable negligence results from the creation of an unreasonable risk of injury to others. While the customary defensive practice of waterfront workers to avoid a forklift is relevant in determining negligence, we feel it is not conclusive. To ascertain if the risk is unreasonable we must consider the likelihood that injury may occur and the seriousness of the injury. The chance of injury here was relatively slight because the forklift operator had no blind spots and should ordinarily have observed those in his path, but the seriousness of harm that could result from one of these several ton machines is great. Guilbeau v. Liberty Mutual Insurance Co., 338 So.2d 600 (La.1976). There was testimony that the lift moved too fast for someone to get out of its path. Appellant’s employee’s negligence was his creating an unreasonable risk of harm in backing and turning the forklift without looking for anyone who might be in his path. He had a duty to look before backing and his failure to do so was a' breach of that duty.

CONTRIBUTORY NEGLIGENCE

Appellants also maintain in light of plaintiff’s work experience he knew of the danger and failed to exercise care commensurate with the foreseeable risk. Accordingly, they assert the jury was manifestly erroneous in failing to find plaintiff contributo-rily negligent. We find no basis for this argument in fact or in law. Plaintiff had completely passed the rear of the forklift, moving from left to right, when defendant’s employee made an unexpected and quick left turn, catching plaintiff on his right side, as he walked farther away from the lift.

Assuming, arguendo, that plaintiff was inattentive, his contributory negligence would be of no moment.

Under Louisiana jurisprudence, an operator of a vehicle or heavy equipment who observes, or who should by the exercise of reasonable care have observed, a pedestrian in a position of peril of which the latter is apparently unaware, is responsible for injuries caused when his vehicle strikes the pedestrian in his path, despite any contributory negligence on the part of the latter; providing that, after the duty to make such observation arose, the operator could reasonably have avoided the accident.

Guilbeau, supra, and cases cited therein, at p. 604.

An ordinarily prudent forklift operator would have discovered the obviously unaware pedestrian worker by only the slightest observation in the appropriate direction. The testimony reveals when the plaintiff passed the rear of the forklift it was stopped. The operator should have looked at this moment and could have easily discovered the worker and shouted to alert him to his intended movement and thus have avoided the accident.

The jury’s finding of negligence on the part of defendant’s employee and its failure to bar plaintiff’s recovery due to possible contributory negligence is not manifestly erroneous and will not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), Canter v. Koehring Co., 283 So.2d 716 (La.1973).

CONTINUANCE

Appellants contend the trial court erred in failing to grant the mandatory continuance provided in LSA-C.C.P. Art. 1602 as “a material witness has absented himself without the contrivance of the party applying for the continuance.”

Appellants’ only witness, Dr. Eugene J. Dabezies, received a subpoena on May 20, 1981 to appear for trial at 9:00 a.m. the following day, May 21, 1981. On May 21, 1981, court was adjourned at 3:30 p.m. Appellants submitted an affidavit by Dr. Da-bezies with its motion for a new trial which stated at 3:35 p.m. on the 21st the Doctor was on his way to court when he received word he would not be needed that day. The trial was continued to 9:30 a.m. Tuesday, May 26, 1981 for the sole purpose of hearing Dr. Dabezies’ testimony. (Appellants maintain this was not done at their request but on the trial court’s own motion. The record sheds no light on this.) Dr. Dabezies’ affidavit states he was informed by defense counsel on May 22 of the May 26th date at which time he informed them he already had surgery scheduled which could not be cancelled. He rearranged his schedule intending to be in court as close to 9:30 as possible. On the 26th the doctor began surgery at 7:00 a.m. and was still there at 9:00 a.m. His staff was advised to call the court to inform the attorneys he would be there as soon as possible. At approximately 10:15 or 10:30 he advised one of the attorneys by telephone from the operating room that he could be in court in 15 minutes. At 10:30 the court determined since the trial had been continued once already and had been delayed that morning for an hour that the case would proceed. Appellants presented appellee with two medical reports from Dr. Dabezies: July 15, 1980 (more than 6 months after the accident) and May 18, 1981 (3 days prior to trial). After the case was called and the doctor was still not present, appellee offered to stipulate to both medical reports, but appellants refused. Hence, the reports were not submitted to the jury and are not in the record. Also, the Trial Judge offered to have the sheriff pick up the doctor, an offer understandably declined. At 10:30 the trial resumed without the doctor and the case was submitted with closing arguments. At approximately 10:45, during ap-pellee’s close, Dr. Dabezies arrived in court.

Appellants contend the refusal to grant the mandatory continuance under LSA-C. C.P. Art. 1602 constituted reversible error as Dr. Dabezies’ testimony was material or essential to their defense and his absence was not contrived. It is argued Dr. Dabez-ies would have been the only orthopedist to testify since plaintiff’s expert was “qualified only as an expert in surgery.” Because the alleged disability involves a foot injury, they argue an orthopedist’s testimony is indispensable to comprehending the injury. In their supplemental brief appellants state: “Plaintiff’s offer to stipulate to the medical reports in no way renders the testimony unnecessary or any less material, particularly since the Doctor was expected to testify concerning matters not set forth in the reports, i.e., that the exaggerated gait exhibited to the jury by plaintiff was not related to the alleged accident and that plaintiff’s use of a cane was wholly nonfunctional.”

When the conditions of LSA-C.C.P. Art. 1602 are met the granting of a continuance is mandatory. McCaleb v. Department of Public Safety, 309 So.2d 748 (La. App. 4th Cir.1975). The article provides that the witness must have absented himself contrary to the wishes of the party seeking the continuance and also it must be shown that the testimony to be elicited from that witness is material or essential to that party’s presentation of his case. Gallin v. Travelers Insurance Co., 323 So.2d 908 (La.App. 4th Cir.1975), writ denied, 329 So.2d 452 (La.1976). Apparently the policy behind this article requiring a mandatory continuance is to insure that a party is not deprived of his day in court or his right to properly present his defense when not due to his own fault or delinquency.

The record does not indicate and appellants have made no showing that Dr. Dabezies’ testimony would lead to material evidence. As we have noted, plaintiff offered to stipulate to Dr. Dabezies’ two medical reports. Appellant merely contends in his brief that testimony from an orthopedist was essential and that the reports would be supplemented with testimony from Dr. Dabezies relating to plaintiff’s “exaggerated gait” and “nonfunctional” use of the cane.

Plaintiff’s doctor, Dr. Axelrod, was qualified as an expert in general surgery and was Board certified by the American Board of Surgeons. His testimony was that the 10% disability was not due to damage to the bones but was attributable exclusively to the painful scar on plaintiff’s right foot. The fracture had completely healed and did not seriously affect the plaintiff’s future condition. Under these circumstances we see no reason why an orthopedist’s testimony was essential to an understanding of the case. Surely, Dr. Dabezies’ opinion as to the extent of bone damage caused by the injury and observed by him on July 15,1980 and May 19, 1981 was contained in the medical reports. Regarding additional testimony as to plaintiff’s gait, we note every witness testified that plaintiff walked with a limp or “crippled” gait prior to the accident.

Under the circumstances of this case we find appellants’ basis for a continuance does not fall within the purview of LSA-C.C.P. Art. 1602. Dr. Dabezies was not served with a subpoena until the day before trial. We note appellants’ refusal to stipulate to the doctor’s medical reports; however, that did not preclude submitting reports subject to a continuing objection to the denial of the continuance. Dr. Dabezies was not the treating physician and had minimal involvement with the patient (examinations 6 months post accident and three days before trial, nearly a year and a half post accident). The record reflects that the trial court offered to have the sheriff bring the doctor to court. Considering all of these factors we do not find the trial court’s failure to grant a continuance prevented defendants from properly presenting a defense. On the contrary, the Trial Judge acted within his sound discretion and in the interest of efficient administration of justice.

CROSS-EXAMINATION OF DEFENDANT’S EMPLOYEE

Appellants complain the trial court erred in permitting defendant’s employee to be called under cross-examination pursuant to LSA-C.C.P. Art. 1634. They argue the article provides that the person called be a party or its representative and does not apply to all employees. They urge “representative” means an employee in a supervisory capacity or agent of the party. The party called, Mr. Picou, operator of the forklift, was an employee. Appellants argue this prejudiced their case by preventing defendants from presenting their case in their own fashion.

LSA-C.C.P. Art. 1634 provides in part: “Representative” as used in the paragraph above and in Article 1428(2) means an officer, agent or employee having supervision or knowledge of the matter in controversy, in whole or in part, whether or not he is in the employ of or connected with the party at the time his testimony is taken.

Mr. Picou, the operator of the forklift was clearly an “employee having ... knowledge of the matter in controversy ...” and obviously within the purview of this article. In addition, as appellee points out, defendants waived their objection to plaintiff’s calling this witness as no timely objection was made. Further, appellants were not prejudiced having had the opportunity to recall Mr. Picou as their own witness but surprisingly chose not to.

EVIDENTIARY RULINGS OF THE TRIAL JUDGE

Appellants contend the Trial Judge made two prejudicial and erroneous eviden-tiary rulings requiring the judgment be reversed. The first concerned appellants’ question to Cecil Jones, appellee’s witness, regarding whether or not appellee was in a position to see the lift machine moving toward him. Appellants, with this line of questioning, were attempting to establish appellee’s contributory negligence. Appellants other complaint revolves around Arthur Simms’, appellee’s witness, response to the question: “Is there anything Clarence could have done to avoid being hit by the forklift? Mr. Simms responded “No way” before defendant raised his objection. The court overruled the objection, stating “Anyway, he already answered it.” The question and answer were then both repeated. Appellants object this was an opinion by a fact witness that went to the ultimate issue of the case and had the effect of removing from the jury’s consideration any evidence of plaintiff’s negligence. As we said before, in this situation, plaintiff’s negligence was of no moment. Notwithstanding the correctness of the ruling, we find no prejudice resulted therefrom.

SPECIAL VERDICT FORMS AND INTERROGATORIES TO THE JURY

Appellants contend the trial court’s refusal to submit interrogatories to the jury was arbitrary and prejudicial as it precluded defendants’ knowing the basis of the jury’s decision and prevented the jury’s response to allegations of plaintiff’s negligence. LSA-C.C.P. Arts. 1811 and 1812 are clearly within the sound discretion of the Trial Judge. We find no abuse of discretion in this ruling.

EXCESSIVENESS OF THE AWARD

The jury rendered a verdict for the plaintiff in the sum of $70,000.00 which included plaintiff’s claim for pain and suffering, past and future lost wages, plus stipulated medicals. Appellants claim there is no basis to support such an award because it is clearly excessive and should be overturned. We disagree.

Appellants argue the injury was minimal and required no specific treatment, the laceration was healed by January 28,1980 and the fracture by August 27,1980. They also assert most of appellee’s complaints predate and were unrelated to the accident.

Appellant does not favor us with a suggested award but cites Reggans v. Aetna Casualty & Surety Co., 308 So.2d 898 (La. App. 2d Cir.1974), writs denied, 309 So.2d 675, 310 So.2d 642, 646 (La.1975) wherein the Second Circuit reduced an award from $44,000 to $16,000. We note this case was decided in 1974, prior to the Supreme Court’s rendition of Reck v. Stevens, 373 So.2d 498 (La.1979) which clarified the appellate standard of review of damage awards.

Plaintiff’s physician, Dr. Axelrod testified:

He had a contusion and abrasion of the right foot and ankle and he also had two lacerations along the inner aspect on the sole of the right foot. In addition he had a non-displaeed fracture at the base of the fourth metatarsal bone. And treatment involved cleaning the lacerations and suturing after local anesthetic.
Q. Was anything in particular done with reference to the fracture?
A. No, sir. It was a type of fracture that required no specific treatment, but we did recommend that he did not bear any weight on the foot. And crutches were also prescribed.

Dr. Axelrod later explained that he did not mean the fracture wasn’t severe enough for a cast but that it simply wasn’t treatable with a cast. In a non-displaced fracture, the bones are broken but the two pieces of bone still remain in their normal anatomical position; hence the reason for no cast.

Appellee was given medication for pain and a tetanus shot and was seen eight times in January. On January 28,1980, Dr. Axel-rod noted the lacerations were healed and the abrasions almost healed. Plaintiff was seen eight times in February and on February 11, 1980 he began physical therapy three times a week. He was seen six times in March and numerous times in April, May, June and July. Appellee complained of pain and swelling the entire time and continued seeing Dr. Axelrod until August 27, 1980. In February, 1980 Dr. Axelrod noted other problems, i.e., elevated blood pressure and a heart murmur, and referred appellee to another doctor to treat these unrelated problems. Dr. Axelrod felt appellee could never return to his former occupation, would continue to suffer pain and swelling in the future, and diagnosed a 10% permanent partial disability due to a painful scar on the right foot. Appellee testified that he still felt pain in the injured foot and had to keep it elevated and special shoes were prescribed which he still wears daily.

Appellants also argue there is no basis in the record to award past and future lost wages. The only evidence of plaintiff’s earnings was his own testimony. Additionally, plaintiffs economist’s estimates are unfounded because they are based on the assumption that the 65 year old plaintiff would retire two years from the trial when in fact he testified he would retire two years from the accident.

Appellee’s uncontradicted testimony as to his lost wages is sufficient if credible and reasonably establishes his claim. Income tax returns and further corroborating evidence are unnecessary, though preferred. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). Appellee testified at the time of the accident he was earning $5.62 per hour and he always worked 40 hours a week and about twice a month put in overtime. The economist’s calculations were based on 40 hours per week at $5.62 per hour. The plaintiff clearly stated he planned to retire two years “from the time right now .... ”

Q. From right now?
A. Uh-huh (indicating affirmative reply-)
Q. And not from a year ago?
A. No.

The medicals were stipulated at $1,822.00. Appellee’s economist testified the past lost wages were $13,500 and future lost wages for two years from trial would be $18,792.00 or a total of $32,292.00 in past and future lost wages. The balance of the $70,000, or $35,886 was apparently awarded for pain and suffering. Under the standard enumerated in Reck v. Stevens, supra, we are satisfied this award for this particular claimant’s injuries is reasonable and clearly supported by the record.

The judgement of the trial court is affirmed with appellant to pay all costs.

AFFIRMED.


author: KLEES, Judge.

text:
    Joseph TUFARO v. STANLEY BISHOP REAL ESTATE, INC., et al.
    No. 13205.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      William L. Brockman, Bienvenue, Foster, Ryan & O’Bannon, New Orleans, for plaintiff-appellant.
    Robert P. Hogan, Covington, for defendants-appellees.
    Before KLEES, BYRNES and WARD, JJ.
   KLEES, Judge.

On December 14, 1979, Joseph Tufaro allegedly sustained personal injuries while on commercial property owned and operated by Stanley Bishop Real Estate, Inc. Subsequently, he filed suit against the real estate company and its liability insurer, Lincoln Insurance Company. Lincoln filed an answer in which it denied the allegations as to its liability and set forth certain policy exclusions that it contended were applicable to the claims of the plaintiff. Lincoln also filed a third party demand against Insured Lloyds. Lincoln alleged that Insured Lloyds was the liability insurer of Stanley Bishop for the particular type of claim asserted by the plaintiff, and should judgment be rendered against Lincoln, it demanded indemnity and/or contribution from Insured Lloyds.

Insured Lloyds filed an exception of no cause of action to the third party demand of Lincoln Insurance Company. The district court granted the exception and dismissed the third party demand against Insured Lloyds, with prejudice. Lincoln now appeals, contending that the district court committed error by maintaining the exception of no cause of action. We find no error and affirm.

The sole issue presented on appeal is whether the trial court correctly dismissed Lincoln Insurance Company’s third party demand. Lincoln had impleaded Insured Lloyds únder La.C.C.P. Article 1111 contending that Lloyds was liable for all or part of the principal demand against Lincoln. La.C.C.P. Article 1111 states in pertinent part:

“The defendant in a principal action by petition may bring in any person, including a co-defendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.”

Lincoln argues that there are viable theories under which it might have a cause of action against Insured Lloyds, and therefore the trial court should have allowed them to implead Lloyds under La.C.C.P. 1111.

The first theory offered by Lincoln is based on the right of contribution. The appellant argues that it clearly has a right to sue Insured Lloyds for contribution, citing Shaw v. New York Fire and Marine Underwriters, Inc., 252 La. 653, 212 So.2d 416 (La.1968). However, a careful reading of that case reveals that the appellant’s reliance on it is misplaced. Shaw, supra, held that the insurer of a tort feasor may by third party demand enforce contribution against a joint tort feasor or his liability insurer (emphasis added). In the instant case, there are no joint tort feasors. We conclude, therefore that the Shaw case does not provide Lincoln Insurance Company with a cause of action against Lloyds based on contribution.

The second theory offered by Lincoln is based on the possibility that the insurance policies contain “pro-rata” clauses. The Third Circuit, in dicta, has stated that where pro rata clauses exist, the liability of both insurers with the insured and with each other is solidary. Wilks v. Allstate Insurance Company, 195 So.2d 390 (La.App. 3rd Cir.1967). In discussing the procedural consequence of this interpretation, the court concluded that any insurer can implead any other alleged insurer by third party demand. (See also Murry v. Bankers Fire and Marine Insurance Company, 198 So.2d 532 (La.App. 3rd Cir.1967).

The district court rejected this approach because of an apparent conflict with two Fourth Circuit cases. In Fremin v. Collins, 194 So.2d 470 (La.App. 4th Cir.1967), two insurance companies provided uninsured motorist coverage to the plaintiff who was injured when struck by an uninsured motorist. One of the insurance companies attempted to implead the other for contribution. The second company filed an exception of no cause of action which was sustained by the trial court. In reviewing the decision of the trial court, this court carefully examined the civil code articles on joint, several and solidary obligations. It concluded that the two insurance companies were not solidary obligors, therefore there was no right of contribution. In Fremin, supra, the court stated at p. 474:

“In this case, the facts hereof disclose that each insurer contracted independently with the insured to provide coverage .... they are separate and distinct obligations and do not result in solidary liability between the obligors.”

In Fasullo v. American Druggists’ Insurance Co., 262 So.2d 810 (La.App. 4th Cir. 1972), writ denied 262 La. 1089, 266 So.2d 220 (1972), this court specifically discussed the effect of a pro rata clause. It held that the clause merely establishes a negative limitation of liability and does not set forth an affirmative right to obtain contribution from other companies. Therefore, the possible existence of pro rata clauses would not provide Lincoln with a right of action for contribution.

In Fasullo, supra, the court also concluded that the policies issued were distinct and separate. As such, they created only separate obligations, and the liability of the insurers were several. This obviated one insurer from obtaining contribution from the other insurer by a third party demand.

The third and final theory offered by Lincoln is based on subrogation. Lincoln contends that, in the event of payment, it would clearly have a right of action against Insured Lloyds. The appellant cites two federal cases in support of this theory: Phoenix Indemnity Company v. Marquette Casualty Company, 320 F.2d 486 (5th Cir.1963), writ denied 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 658; Commercial Standard Insurance Company v. American Employers Insurance Company, 209 F.2d 60 (6th Cir.1954). As appellant points out in his brief, these two cases hold that the right or cause of action does not accrue until after payment is made. Since no payment has been made in this particular case, any cause of action based on subrogation does not yet exist, therefore a third party demand based on this theory should be dismissed.

Accordingly, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Service has never been made on Stanley Bishop Real Estate, Inc.


text:
    Oscar J. LEWIS, et al. v. Willie VARISTE, et al.
    No. 13218.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Peter S. Title, James Ryan, III, Sessions, Fishman, Rosenson, Boistontaine & Nathan, New Orleans, for defendants-appellees.
    S. Reed Morgan, New Orleans, for plaintiffs-appellants. ,
    Before KLEES, BYRNES and WARD, JJ.
   KLEES, Judge.

Plaintiffs, Oscar J. Lewis, as administrator of the estate of his son, Leonard Lewis and Simone Lewis appeal from a judgment of the trial court, rendered pursuant to a jury verdict, dismissing suit for damages against defendants-appellees Alfred Pollar, Sr., Alfred Pollar, Jr., and State Farm Mutual Automobile Insurance Company. Plaintiffs’ suit arises out of an accident which occurred when a motorcycle driven by David Variste on which plaintiffs’ minor son Leonard Lewis was a passenger, rear-ended a vehicle driven by Alfred Pollar, Jr. The jury found David Variste negligent and awarded damages in the amount of $325,-000 to Leonard Lewis and $15,000 to his father, Oscar J. Lewis. Prior to trial, however, the plaintiffs settled with defendants David Variste, Willie Variste, Jefferson Insurance Company and All State Insurance Company. The jury found that Alfred Pol-lar, Jr., was not negligent and dismissed the suit against Alfred Pollar, Sr., Alfred Pol-lar, Jr., and State Farm Insurance Company. Plaintiffs’ motion for a new trial was denied, and plaintiffs appeal that ruling as well as the jury verdict and judgment thereafter contending 1) that the jury verdict was manifestly erroneous in that it was contrary to the law and/or evidence and 2) that the trial judge erred in denying plaintiff’s motion for a new trial.

We can find no manifest error in the jury verdict nor in the denial of plaintiffs’ motion for a new trial and, accordingly, we affirm.

FACTS

On the evening of November 11, 1978, defendant, Alfred Pollar, Jr., and his date, Julie Overstreet, attended a homecoming dance at John F. Kennedy Senior High School. The dance ended at 11:00 p.m. and Alfred Pollar, Jr., Julie Overstreet, Kerwin Broussard and Claudette Nicholas made plans to meet at Claudette Nicholas’ house. Alfred Pollar, Jr., was driving his father’s automobile, accompanied by Julie Over-street and Kerwin Broussard.

From the high school parking lot, Alfred Pollar, Jr., turned onto Wisner Boulevard proceeding southward in the right lane of the boulevard at a reduced rate of speed. The speed limit on the boulevard was thirty-five miles per hour. Pollar’s car was followed from the parking lot by Claudette Nicholas’ vehicle.

Several moments later, Diane Dileo, a teacher at Kennedy High School, drove past the Pollar car in her auto. Next, three motorcycles, all in the right lane, approached the Pollar vehicle from behind. The motorcycle which David Variste was driving was in the center of the right lane flanked by a motorcycle on each side driven by Variste’s friends. When the Pollar vehicle came into sight, the motorcycle on the left side of Variste swerved to the left. The motorcycle to the right of him veered to the right off the road into the City Park ditch which runs along Wisner Boulevard. The Variste motorcycle, in the middle position, rear-ended the Pollar automobile. Appellant Leonard Lewis, the passenger on the motorcycle driven by David Variste, sustained serious injuries in the collision. The quantum awarded is not an issue in this appeal, and we will not discuss the extent and severity of these injuries.

Appellants assert that Alfred Pollar, Jr., was negligent in driving his car too slowly down Wisner Boulevard and that this was a proximate cause of the accident. Defendants contend that Pollar was not negligent because a reduced rate of speed was reasonable and necessary due to the dense fog in the area that night.

The appellate courts of this state are to review both the law and the facts in civil cases, whether the case is tried before a judge or jury. Storey v. State Farm Mutual Fire Insurance Co., 327 So.2d 687 (La.App. 1st Cir.1976), writ denied, 330 So.2d 309 (La.1976). The findings of fact by the trial judge or jury shall not be disturbed absent a positive showing that such findings are manifestly erroneous upon the face of the record. Storey, supra.

Because the trial court has the opportunity to evaluate live witnesses, the appellate court must give great weight to the factual conclusions of the trier of fact, even in cases of conflicting testimony. Weaver v. Otis Elevator Company, 399 So.2d 1268 (La.App. 4th Cir.1981).

Appellants contend that the jury verdict, being contrary to the law as charged and/or to the evidence establishing the facts, is manifestly erroneous and should be reversed. They further assert that the trial judge erred in denying the appellants’ motion for a new trial.

The jury was instructed by the court that when an innocent person such as a guest passenger is injured as a result of a collision between two drivers, each driver is considered under the law to be guilty of negligence and has the burden of exculpating himself.

Sufficient evidence that defendant’s reduced rate of speed was justified was adduced at trial for the jury to conclude that he met this burden.

Appellants contend that the evidence proved that the fog did not diminish visibility to an extent making it necessary or reasonable to slow to ten miles per hour, the speed Alfred Pollar, Jr. admitted he was traveling. They base this argument both on Diane Dileo’s testimony that she was proceeding at thirty-five miles per hour without visibility problems as she passed the Pollar vehicle and on David Variste’s statement in his deposition that he was driving his motorcycle thirty-five miles per hour before the accident occurred.

Our review of the record shows that each witness at trial testified that the area was covered by a dense fog on the evening of the accident and that visibility was limited. The speed limit on a street is fixed according to normal weather conditions, and a driver must reduce his speed when the weather conditions create a hazardous driving situation.

LSA-R.S. 32:64 requires that “No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the ... condition of the weather.... ” On Wisner Boulevard, the speed limit was thirty-five miles per hour. It seems logical that when the weather conditions are less than optimum, such as the presence of heavy fog, a prudent driver would drive less than thirty-five miles per hour on this boulevard. The particular facts of this accident indicate that visibility was so impaired that it would be reasonable to conclude, as the jury did, that David Variste when driving at thirty-five miles per hour, was not driving at a safe speed. In his deposition, Variste stated that the fog was more dense where the accident occurred and that it was “like a cloud”.

Appellants argue that Alfred Pollar, Jr., admitted that he was going only ten miles per hour at the time of the accident. This was, however, an approximation by the defendant. According to other testimony at trial, the jury could have reasonably believed that the defendant was driving faster. Julie Overstreet testified at trial that the Pollar vehicle was traveling between fifteen and twenty miles per hour. Claudette Nicholas stated that Pollar was driving at least ten miles per hour.

The most convincing testimony as to the speed of the automobile comes from Diane Dileo, a disinterested witness. She stated that she increased her speed to thirty-five miles per. hour to pass the Pollar vehicle and after passing it slowed down to twenty-five to thirty miles per hour. She testified that as she passed the automobile, it was moving at a rate of twenty to twenty-five miles per hour.

Defendant cites LSA-R.S. 32:81 which furnishes the standard of care required of motorists following other vehicles. The statute provides in pertinent part: “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

In interpreting this statute, the courts have held that a motorist who strikes a preceding motorist from the rear is presumed to have breached the standard of conduct prescribed in R.S. 32:81 and is therefore presumed negligent. Thus the following motorist bears the burden of proving that he was not negligent. Eubanks v. Brasseal, 310 So.2d 550 (La.1975).

To exonerate himself, Variste must have proven that he kept his vehicle under control, closely observed the vehicle ahead and followed at a safe distance under the circumstances. Eubanks, supra. The jury’s finding that Variste did not meet his burden, as established by the jurisprudence, could have been based in part on his deposition wherein he stated:

“And I was riding, and I saw bright lights. And I hit my brakes and I lost control of my vehicle.”

Following motorists have escaped liability for rear-end collisions by establishing that the forward vehicle, encountered in the dark, was stalled and unlighted; Vascoe v. State Farm Mutual Automobile Insurance Company, 260 So.2d 161 (La.App. 2nd Cir. 1972); or that the unpredictable driving of the preceding motorist created a sudden emergency that the following motorist could not reasonably have anticipated; Layfield v. Altazan, 255 So.2d 363 (La.App. 1st Cir.1971). The Pollar vehicle was not stalled and unlighted nor could Alfred Pol-lar’s slow rate of speed be considered unpredictable or unanticipated in the existing heavy fog.

Appellants argue that the jury should not have believed the testimony of the defense witnesses as certain statements made at trial were inconsistent with prior statements made by the witnesses. If the testimony of a witness is inconsistent with a prior statement, the law as charged requires the jury to determine if the testimony of the witness must be discredited. It further allows the jury to decide what weight to give to the testimony of a discredited witness.

In his deposition, Alfred Pollar, Jr., when asked if he saw this other motorcycle in his rear view mirror before he felt or heard the big bang, replied “not that I can really remember, no.” In his testimony at trial, he said, “I can’t tell whether it was a motorcycle light, car light or what. I remember looking in the rear view mirror for a split second or so and seeing the lights.”

When reaching its verdict, the jury apparently did not feel the inconsistent testimony was on such a crucial point to warrant discrediting the entire testimony of Alfred Pollar, Jr. In a written statement made before trial, Kerwin Broussard, a guest passenger in the Pollar vehicle, Said that the Pollar car had stopped to wait for Claudette. At trial, he testified that the car had not stopped but was traveling slowly. Appellants argue that this conflict indicates the unreliability of Kerwin Brous-sard’s testimony.

This discrepancy in his testimony is on a more important issue. Kerwin Broussard testified at trial that his statement contained mistakes and that he had informed appellants’ attorney of that when he signed the statement. The attorney, however, testified that Broussard was given an opportunity to correct any mistakes in his statement.

The trial testimony of all the witnesses to the accident convincingly shows that the Pollar vehicle was driving slowly down Wis-ner Boulevard rather than stopped. This testimony apparently was sufficient evidence for the jury to disregard Kerwin Broussard’s earlier statement and to find that the car was moving.

Appellants argue that testimony of the defense witnesses was tainted by their meeting with counsel for defendant. At trial, however, these witnesses testified that the attorney merely told them to tell the truth. There is insufficient evidence to support the view that their versions of the story were altered or fabricated.

Considering all of the foregoing, we conclude that a finding by the jury that Alfred Pollar, Jr., was not negligent was amply supported by the evidence, and we can find no manifest error in the verdict of the jury or in the trial court’s denial of the motion for a new trial.

The trial court assessed costs of the trial against appellants but held defendants liable for the costs of the motion for a new trial. Defendant asserts that appeal costs should be taxed against appellants; we agree and rely on New Orleans Shrimp Co., Inc. v. Duplantis Truck Lines, Inc., 283 So.2d 521 (La.App. 1st Cir.1973), where the court held that when the judgment of the trial court is affirmed, the appellant is responsible for all costs incidental to appeal.

Accordingly, for the reasons expressed herein, the judgment of the trial court is hereby affirmed, all costs to be borne by appellant.

AFFIRMED.


text:
    Sergio MARINOVIC v. NEW ORLEANS POLICE DEPARTMENT.
    No. 13222.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Gerald Wasserman, Bach & Wasserman, New Orleans, for plaintiff-appellee.
    Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellant.
    Before KLEES, BYRNES, and WARD, JJ.
   KLEES, Judge.

Appellee, Mr. Sergio Marinovic, contending that he was forced to resign his position with appellant, the New Orleans Police Department, filed an appeal with the Civil Service Commission on April 27, 1981, to be reinstated. Based on the testimony adduced at the hearing, the Commission found the resignation was forced and ordered Mr. Marinovic reinstated to the New Orleans Police Department without back pay. The decision was later amended to award Mr. Marinovic back pay from June 17, 1981, until December 11, 1981.

From this decision the New Orleans Police Department appeals urging that the Commission erred in upholding Mr. Marino-vic’s appeal and ordering his reinstatement with back pay. We affirm the Commission’s ruling.

Mr. Marinovic had been employed by the New Orleans Police Department as a police officer for two years prior to his resignation on April 21, 1981. For the past one and one-half years, Mr. Marinovic had been working on obtaining a Bachelor’s Degree in Criminal Justice from Loyola University. When his designated shift interfered with his class schedule, he would use his furlough (annual leave) in order to attend the class.

On the night in question, when Mr. Mari-novic requested two hours furlough time to attend class, the request was denied by Captain Holman, his supervisor. When Mr. Marinovic informed his captain that he would leave the station to go to school and submit his resignation the next day, Captain Holman told him that he must submit the resignation before departing the station. Mr. Marinovic thus submitted his resignation at that time.

The appellate review of the Commission’s ruling is now on any question of law or fact. La.Const. (1974) art. 10, § 12, Brown v. L.H.H.R.A., 346 So.2d 758 (La. App. 1st Cir.1977). The scope of review is essentially the same as that provided for appeals from the divisions of the district courts. La.Const. (1974) art. 5, § 10(B). Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir.1976), writ refused 343 So.2d 1078 (La.1977) Case 1.

The scope of appellate review was established in the case of Canter v. Koehring Company, 283 So.2d 716 (La.1973) and explained in Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978):

“... appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).”

Although this is the general rule of appellate review regarding rulings of the Civil Service Commission, in Merchant v. Dept. of Finance, 391 So.2d 587 (La.App. 4th Cir. 1980), the court held that the usual guidelines for appellate review, i.e., the manifest error rule, are not applicable where the evidence was taken before a hearing examiner and the record thus compiled was filed with the Commission without comment or recommendation. The court explained its reasoning as follows:

“The great weight accorded conclusions and determinations made by the trier of fact under Canter and Arceneaux is based on the advantage derived from personal observation of the witnesses, their demeanor on the stand, and the manner in which they responded to examination. Here, the Commission enjoyed no such advantage. Under these circumstances the standard of review by an appellate court is not unlike that of judicial review in other administrative matters, that is, whether the conclusion reached by the Commission is arbitrary or capricious or manifestly wrong.”

The holding in Merchant was followed in McGee v. Sewerage and Water Board of New Orleans, 396 So.2d 430 (La.App. 4th Cir.1981). In both cases, the court made an independent review of the record to determine whether the conclusion reached by the Commission was arbitrary or capricious or manifestly wrong. The procedure followed in Merchant and McGee was also used in the instant case, thus the standard pronounced in those cases should apply.

There can be no question that conduct which impairs the orderly operation of a public service in which an employee is engaged can be grounds for disciplinary action, such as dismissal. Sanders v. Dept. of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir.1980), writ denied, 399 So.2d 602 (La.1981), Dent v. Dept. of Corrections, 413 So.2d 920 (La.App. 1st Cir. 1982).

Although disciplinary action was not taken in the instant case, the jurisprudence indicates the awareness that the conduct of employees of a department is a crucial factor in maintaining an office that can properly serve the public. For this reason, a supervisor is given much latitude in exercising control of the employees over whom he has jurisdiction.

The Court in Branighan v. Department of Police, 362 So.2d 1221, 1223 (La.App. 4th Cir.1978), writ denied, 365 So.2d 247 (La.1978), said:

“The superintendent of police is charged with the operation of his department, and the Civil Service Commission is not his supervisor. The superintendent is the one who must run his department and exercise discretion in relation to disciplining his officers, and the Commission is not charged with exercising that discretion.”

Nonetheless, Branighan, supra, also held that:

“... [t]he Civil Service Commission’s authority ‘to hear and decide’ disciplinary cases, Const, art. 10 § 12, includes authority to modify (reduce) as well as to reverse or affirm a penalty.”

The Civil Service Commission has an obligation to uphold the disciplinary action of the appointing authority when there is sufficient cause shown to sustain such action. Joseph v. Dept. of Health, 389 So.2d 739 (La.App. 4th Cir.1980).

At the hearing, Mr. Marinovic and Captain Holman were the only two witnesses to present evidence. We are constrained to accept the findings and conclusions of the Civil Service Commission in this matter and quote in pertinent part:

“The background to the ‘forced resignation’ seems to focus on the following facts brought out in testimony by appellant and Captain Holman:
1. The ‘unwritten law’ of the department is to encourage policemen to complete their education. In fact, Mr. Marinovic had just finished a commercial to be aired on Channel 4, which encourages policemen to complete their education.
2. The department usually cooperated with policemen in arranging their work schedules so that there is time off to attend school. This has been frequently done for other officers.
3. Mr. Marinovic had been attending classes for one and a half years, apparently without difficulty, before being transferred to the First District under Captain Holman.
4. Appellant had checked several sources concerning the possibilities of attending classes before agreeing to a transfer to the First District.
5. Appellant had only 2-3 weeks left before completing his Bachelor’s Degree in Criminal Justice.
After being transferred to the First District, Mr. Marinovic seems to have made many attempts to be both a Police Officer and a student following departmental rules and regulations. He appears to have been blocked at every turn.
1. Captain Holman had appellant transferred back to the First District while he was serving on limited duty in the Communications Department due to a hand injury unrelated to police work. Originally, Captain Holman refused to take him back on limited duty in the First District. (While in the Communications Department, appellant was permitted to attend classes.)
2. On the evening of April 21, appellant asked for two hours furlough time from Lieutenant Bell, his immediate supervisor. On the telephone Lieutenant Bell stated there was no problem. Later, according to appellant, Lieutenant Bell told him at the station that he had been instructed by Captain Holman to refuse his request. (Testimony was not contradicted by Captain Holman.)
3. Appellant asked to be able to work weekends so that he could take his days off to attend classes. This request was denied.
4. Appellant asked to be moved out of the First District. This request was denied.
5. Captain Holman told appellant that he could have no more furlough time even though he had additional time coming. Further, Captain Holman refused to give any reason for denying this request.
6.Captain Holman suggested that the only way appellant could leave the station for two hours to attend a class was to resign. It may also be noted that there was not a manpower shortage since appellant and others on desk duty were watching television.
Appellant seems to have done everything reasonable within his power to follow departmental regulations while attempting to improve his educational skills directly related to police work.
In his testimony, Captain Holman alludes to violations of departmental regulations relative to conduct while on sick leave and to some kind of misconduct by appellant. Testimony does not reveal any substantiation of these charges. If the charges were true, appropriate disciplinary action should have been initiated. In either case, it is irrelevant to the matter at hand.
It is true that the approval or denial of leave is within the province of Captain Holman. It seems equally true that Captain Holman went out of his way to provoke appellant into resigning. If Captain Holman was unhappy about granting furlough time to those Police Officers seeking to complete their education, it was his responsibility to have worked to establish some type of new departmental policy regarding educational leave. Captain Holman seems to have exceeded his authority in flatly ruling out additional annual leave if appellant had some time coming to him. In addition, Captain Holman’s actions appear capricious, improper and injudicious.”

This court has also considered the wording of Mr. Marinovic’s resignation wherein he stated:

“Capt. Holman of the First District, force (sic) my resignation by not allowing me to continue- my education. Capt. Holman stipulated no reason for the denial, and a choise (sic) of dropping my education or dropping the job was eminent (sic). The New Orleans Police Dept, was not the reason for my resignation, and I thank the Department for giving me a chance to work for them.”

It is clear that at the time of Mr. Marino-vic’s confrontation with Capt. Holman, no reason was given for the refusal of the furlough. At the hearing itself, Capt. Holman’s explanation was, “[bjecause of the present manpower shortage”, yet no further evidence was given to show how the furlough of Mr. Marinovie would affect such “manpower shortage” or why other individuals were granted this furlough.

Thus we are confronted with whether the evidence in the record supports Captain Holman’s action by a preponderance. See Arnold v. New Orleans Police Department, 383 So.2d 810 (La.App. 4th Cir.1980), writ denied, 385 So.2d 274 (La.1980), and we agree with the Civil Service Commission that the actions taken were improper.

Accordingly, the judgment of the Civil Service Commission is affirmed.

AFFIRMED.


text:
    Dwight THOMPSON v. The BANK OF NEW ORLEANS AND TRUST COMPANY.
    No. 13255.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Dwight Thompson, in pro. per., Marco A. Rosamano, New Orleans, for plaintiff-appellant.
    Robert J. Neal, New Orleans, for defendant-appellee.
    Before KLEES, BYRNES and WARD, JJ.
   KLEES, Judge.

Plaintiff, Dwight Thompson, appeals from the dismissal of his suit for damages against Defendant, Bank of New Orleans and Trust Company, on an exception of res judicata based upon a release plaintiff executed in favor of defendant.

The issue presented to us for determination is whether the release agreement signed by the plaintiff precludes him from seeking damages for malicious prosecution from defendant. The trial court found that it does, and we affirm.

On October 8, 1979, the plaintiff entered defendant’s Elysian Fields branch in order to cash a check. As the plaintiff exited the bank, he injured his hand when he pushed it through the bank’s plate glass door. The bank accused the plaintiff of deliberately breaking the glass, and, on their complaint, he was arrested by the police for criminal damage to property. The criminal charges were subsequently dropped.

On October 13, 1980, plaintiff signed a release agreement with the defendant for claims arising out of the October 8, 1979, incident. However, on January 16,1981, he filed suit against defendant for malicious prosecution. Defendant filed an exception of res judicata based on the release agreement. The trial court granted the exception, and the plaintiff now appeals.

Defendant contends that the release executed by the plaintiff on October 13, 1980, was intended to be a full and final settlement of all claims against them arising from the October 8, 1979 incident and argues that any subsequent claim arising from this incident is barred by the doctrine of res judicata. Although the doctrine of res judicata is normally based on the conclusive legal presumption of “the thing adjudged” between the same parties, the doctrine is also applicable where a transaction or settlement of a disputed or compromised matter has been entered into between parties. Hancock v. Lincoln American Life Insurance Company, 278 So.2d 561 (La.App. 1st Cir.1973); Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir.1967).

The following articles of the Louisiana Civil Code also support the position of the defendant:

Art. 3071. A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.

This contract must be reduced into writing.

Art. 3078. Transactions have, between the interested parties, a force equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.

The plaintiff argues that the release agreement was not intended to cover any claim for malicious prosecution. He asserts that the release applied only to his personal injury claims arising from the alleged accident.

The following articles of the Louisiana Civil Code support the position of the plaintiff:

Art. 3073. Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises. Art. 3079. A transaction may be rescinded notwithstanding, whenever there exists an error in the person or on the matter in dispute. It may likewise be rescinded in the cases where there exists fraud or violence.

Support of this argument is also found in the jurisprudence of our state. It has been held that a general release will not bar

recovery for those aspects of a claim not intended to be covered by the release. Henderson v. Stansbury, 372 So.2d 1253 (La. App. 3rd Cir.1979). Additionally, it has been held that a release, although granted for consideration and purporting to release all claims for injuries, losses and damages resulting from a particular accident, does not constitute a compromise of claims where there was no intent to release such claims. Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (La.1961).

In order to ascertain whether there was an intent of the parties here to release a claim such as the one for malicious prosecution, it is necessary to carefully analyze the wording of the agreement. In relevant part, the release agreement states:

For and in consideration of the total sum of FIVE HUNDRED DOLLARS ($500.00) paid to him, the said Dwight Thompson herein sometimes referred to as “Appearer” paid by Maryland Casualty Company for itself and for the exoneration and the benefit of Bank of New Orleans receipt of which sum is hereby acknowledged, but with full reservation of all of your Appearer’s rights against Kawneer Manufacturer and its general liability insurance carrier whose name is presently unknown, and all other third persons whomever, Appearer does by these presents release, remit and forever discharge Maryland Casualty Company and Bank of New Orleans only, of and from any and all claims, demands, suits, actions, rights of action, causes of action, and liability whatsoever which against said parties relapsed hereby only, their heirs, legatees, executors, administrators, officers, directors, stockholders, indemni-tors, successors, and assigns, your Ap-pearer has had, now has or may in the future have for bodily injury, physical and mental pain and suffering and anguish disability, whether temporary or permanent, total or partial, and aggravation of pre-existing physical conditions, and disabilities, medical expenses for the past, present, future, and any and all other damages, losses, and expenses, without limitation whatsoever, suffered or which may in the future be suffered by Appearer, which arise from or are in any way connected with that certain accident which occurred on or about October 8, 1979 on the premises of the Bank of New Orleans located at 3231 Elysian Fields in the City of New Orleans, Orleans Parish, State of Louisiana, to-wit cosmetic and scar injuries to his hand as a result of attempt to move the door so he could exit from the said bank and un-beenknown to him the glass shattered and cut the said hand in several places.

The language of the agreement specifically releases defendant from all “causes of action” arising from the incident. In analyzing the agreement, it should also be noted that the plaintiff did reserve his rights against the manufacturer of the door. Certainly the plaintiff could have reserved his right to sue for malicious prosecution. However, no mention of this appears in the agreement.

We conclude, as did the trial court, that the plaintiff intended to release the defendant from all claims arising out of this accident. No fraud or mistake has been alleged. The agreement was a valid and binding settlement. C.C. Art. 3071.

Accordingly, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Dondra SANDERS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 13269.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Robert L. Manard, III, Manard, Schoen-berger & Ryan, New Orleans, for plaintiff-appellee.
    James Maher, III, New Orleans, for defendant-appellant.
    Before KLEES, BYRNES and WARD, JJ.
   KLEES, Judge.

Defendant, New Orleans Public Service, Inc., (NOPSI), appeals from a judgment awarding damages to plaintiff, Dondra Sanders, sustained while she was a fare-paying passenger on defendant’s bus.

The issues presented on appeal are (1) whether the actions of the plaintiff should bar her recovery under the theories of contributory negligence and/or assumption of the risk; and (2) whether the award rendered to her for general damages is excessive.

On May 9, 1979, plaintiff was returning home from school on a NOPSI bus. As the bus proceeded on its route, it made some sudden, “jerky” stops as well as other normal service stops. As the bus approached the plaintiff’s service stop, she stood up in the aisle, braced herself, and prepared to disembark. The bus came to another “jerky” stop and the plaintiff was thrown to the front of the bus where she sustained her injury.

She was examined and treated for her injuries by Dr. Joseph Braud in the Flint-Goodridge Hospital emergency room. This examination took place on the day of the accident and revealed that the plaintiff had sustained a lumbosacral strain; i.e., a strain in the lower back. Plaintiff was again examined by Dr. Braud the day after the accident, and from then through June 4, 1979, she received treatment in his office on numerous occasions. On June 4, 1979, she was discharged by Dr. Braud.

On September 19,1980, after complaining of intermittent pain and stiffness in her back, plaintiff went to see Dr. Stuart Phillips, an orthopedic specialist. Dr. Phillip’s basic diagnosis was that the plaintiff had suffered a lumbar strain and, as a result of the healing process, the lumbar region had scar tissue. At trial he testified that when muscles and ligaments with scar tissue are used “a lot”, pain results. The doctor concluded that the plaintiff will experience some pain during extreme activity the rest of her life.

The trial court found NOPSI negligent and, after considering the medical testimony, it rendered judgment in favor of the plaintiff for $4,828.00 including $578.00 for medical expenses.

Our review of the pleadings show that defendant NOPSI answered plaintiff’s suit with a general denial and specifically pled the defense of sudden emergency.

LSA-C.C.P. Article 1005 requires that the answer set forth any affirmative defenses on which a party will rely. Defendant’s answer failed to set forth the defense of contributory negligence or assumption of risk.

“However, the rule pertaining to an automatic amendment of the pleadings does apply when evidence of an affirmative defense is adduced without objection from the opposing party. Our Supreme Court in DLJ of Louisiana # 1 v. Green Thumb, Inc., 376 So.2d 121 (La.1979), recognized this in Footnote 9 on page 122, where the Court stated:
‘... Generally, affirmative defenses must be raised in the answer of the defendant, see La.Code Civ.P. art. 1005, and cannot be raised by the court sue sponte. Where, however, an affirmative defense has not been pleaded by the defendant but the plaintiff nevertheless fails to object to the introduction of evidence that bears on the affirmative defense and that is not pertinent to any issues raised in the pleadings, the pleadings have been considered to have been enlarged to include the affirmative defense, and the court can act as though the affirmative defense has been pleaded. See Austrum v. Baton Rouge, 282 So.2d 434 (La.1973).’ ” Independent, Inc., v. Wat son, 394 So.2d 710 (La.App. 3rd Cir. 1981).

Here there was no objection made to the evidence pertaining to these defenses either at trial or in brief before this court. Thus we will consider these issues.

Contributory Negligence

A carrier is required to use the highest degree of care, diligence, and skill and is liable for the slightest negligence or lack of care, which results in injuries to its passengers; but the passenger must not contribute to his injuries, by any want of ordinary care on his part. Gaines v. Aetna Casualty & Surety Co., 110 So.2d 851 (La.App. 1st Cir.1959). As in the case before us, contributory negligence by the plaintiff would bar her recovery despite the high degree of care owed by a carrier.

Contributory negligence is objectively determined under the reasonable man standard. Mc Innis v. Fireman’s Fund Insurance Co., 322 So.2d 155 (La.1975). The victim is required only to use reasonable precautions, and his conduct in this regard is not negligent if, by a common-sense test, the conduct is in accord with that of reasonably prudent persons faced with similar conditions and circumstances. Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978).

The record reveals that the plaintiff did use reasonable precautions after leaving her seat. She grasped a pole behind her seat and also braced her feet in preparation for the stop of the bus. Counsel for defendant argues that despite these precautions, plaintiff was contributorily negligent because she should have waited for the bus to completely stop before leaving her seat. This logic is contrary to the common-sense' test enunciated in Dupas, supra, and contrary to our jurisprudence. In Tomasik v. Shreveport, 98 So.2d 554 (La.App. 2nd Cir. 1957), a plaintiff, who arose from his seat to disembark at the next service stop, walked to the front of the trolley supporting himself by holding a vertical handrail, sustained injury when the trolley came to an abrupt stop. In concluding that the plaintiff was not contributorily negligent, the court stated:

“. .. the plaintiff was following custom and general practice, concerning which there was no rule to the contrary, and which practice tended to expedite the service by prompt departure of passengers from the trolleys.” Tomasik, supra, at 556.

In this case, as in Tomasik, the plaintiff was simply following custom and general practice by leaving her seat before the bus stopped. Her action was in no way contrib-utorily negligent.

Assumption of the Risk

The determination of whether a plaintiff has assumed a risk is made by a subjective inquiry. Bass v. Aetna Insurance Company, 370 So.2d 511 (La.1979). In order to assume a risk, one must knowingly and voluntarily encounter the risk which causes him harm, understand and appreciate the risk involved and accept it as well as the inherent possibility of danger because of the risk. Lytell v. Hushfield, 408 So.2d 1344 (La.1982).

However, the general rule has been qualified when a common carrier is involved. In that case, the risks adopted by a passenger are only those which cannot be avoided by the carrier through the use of the utmost degree of care and skill in the management of the conveyance. Peters v. City of Monroe, 91 So.2d 428 (La.App. 2nd Cir.1956), Harris v. Shreveport Railway, 83 So.2d 517 (La.App. 2nd Cir.1955).

The trial court found and defendant concedes, that the bus operator was clearly negligent by his improper use of the emergency brakes. Thus, the risk of “being thrown to the floor” could have been avoided if the bus driver had used the utmost care and caution. Under the rational of Peters, supra, such a risk cannot be assumed by a passenger. We conclude that the defendant’s defense based on the theory of assumption of the risk in this case is without merit.

Quantum

In determining whether the “much discretion” of the trial court in awarding damages has or has not been abused, the initial inquiry must be directed at whether the trial court’s award for the particular injuries on this particular person was a clear abuse of discretion. Only if there was a clear abuse of discretion can the court consider prior awards for similar injuries. Reck v. Stevens, 373 So.2d 498 (La.1979).

After careful consideration of the record, the amount of the award by the trial court cannot be labeled a clear abuse of its “much discretion”. Plaintiff suffered a muscle contusion and strain of the lumbar-sacral spine. She underwent periodic treatment for this injury for a period of three weeks. After experiencing intermittent pain for approximately 15 months, she went to another doctor who concluded that the recurring pain was a result of the healing process from the earlier injury. He stated that the plaintiff would always be susceptible to such pain after extreme activity or exercise. Prior to her injury, the plaintiff was active in sports and dancing, and had never experienced any back pain after physical activities. Now, her physical activities are somewhat restricted. Based on these facts and the medical testimony of the doctors, the original award for general damages of $4,250.00 is not excessive.

Accordingly, the judgment of the trial court is affirmed. Costs are assessed against defendant.

AFFIRMED.


author: AUGUSTINE, Judge.

text:
    Paulette SMITH, and Mildred Scott v. Irvin L. SCHWARY.
    No. 13065.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Clarence F. Favret, III, New Orleans, for plaintiffs-appellees.
    William P. Golden, Jr., Carville & Edring-ton, LaPlace, for defendant-appellant.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

Plaintiffs Paulette Smith and Mildred Scott instituted this action for personal injury against Irvin L. Schwary following an automobile collision with the defendant on the approach to the Greater New Orleans Bridge. From a judgment awarding plaintiffs 15,940.0o, the defendant appeals.

The issue in this case is simply whether the trial court committed error in finding that the cause of the accident was the defendant’s negligence. Since this is a factual dispute, our review of the trial court’s decision will be limited by the rules of Canter v. Koehring, 283 So.2d 716 (La.1973), that is, we will accord great deference to the trial court’s evaluation of the witnesses’ credibility and will leave the judgment intact unless we find manifest error as to the dispositive findings of fact.

As a threshold matter, we think the plaintiffs’ testimony, if believed, clearly established a prima facie case of negligence on the part of the defendant. As told by Paulette Smith, on July 17,1979, at approximately 9:40 p.m., she and a number of friends were travelling in Smith’s Ford Pinto towards New Orleans from the west bank of the Mississippi River. Smith was in the extreme left lane as she drove through the toll gates which stand near the foot of the Greater New Orleans Bridge. She continued in that lane at approximately thirty-five miles per hour for a distance of approximately two hundred and fifty feet, when she was struck from the rear by another vehicle driven by the defendant. The impact was severe enough to cause her to momentarily lose control of her car; she swerved into the right lane and nearly collided with another automobile, finally bringing her car to a stop in the left lane a few feet ahead of the defendant’s Chevrolet van. When the plaintiff emerged from her car to survey the damage, she was approached by a Mississippi River Bridge policeman who tendered delivery of her rear bumper, which had been knocked off by the impact.

The similar testimony of Mildred Scott, one of Smith’s passengers, corroborated the significant details of the incident, principally, that the Pinto was struck from behind while travelling in the extreme left lane.

Mark Porche, the policeman who retrieved Smith’s bumper, testified that the plaintiff’s vehicle was damaged in the rear. He noted no damage to Schwary’s van except that its rear bumper apparently had been bent away from the body of the vehicle. There was no proof, however, as to whether the damage to Schwary’s bumper was sustained in the accident or in an earlier mishap.

Having established a rear-end collision — and therefore a prima facie case of negligence on the part of defendant Schwary — the burden shifted to the defendant exculpate himself by proving his lack of negligence. Eubanks v. Brasseal, 310 So.2d 550 (La.1975). The trial court concluded that defendant Schwary failed to discharge that burden. We agree.

Irvin Schwary testified that shortly after driving through the bridge toll booth located in the extreme left lane, travelling about twenty miles per hour, his van was approached at an angle from the right rear by plaintiff’s Pinto. Seeing that a collision was imminent, Schwary said, he simultaneously jammed the brakes .and swerved to the left, stopping his vehicle within a car length. The' defendant stated that during the course of these evasive maneuvers, he felt a jolt and heard metal hit the pavement. He contends, of course, that the plaintiffs vehicle struck him — from the rear.

Given the utterly contradictory accounts ventured by the opposing parties, the trial court’s judgment was necessarily based upon a determination that the plaintiffs were more credible. Since the defendant’s version of the incident cannot square with a known fact — the loss of the Pinto’s rear bumper — we find no manifest error in the trial court’s conclusion that it was the defendant who struck the plaintiff’s vehicle from the rear. There being no refutation of presumed negligence on the part of the defendant, this case must be resolved in favor of Paulette Smith and Mildred Scott.

Affirmed.

      . The trial court awarded plaintiff Smith general damages in the amount of $2,000.00 and medical specials in the amount of $511.00. Plaintiff Scott won $750.00 in general damages and medical specials in the amount of $168.00.


text:
    Jean Giglio, wife of Frederick BILLIOT v. Frederick BILLIOT.
    No. 13136.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Mary Beoubay Petruccelli, Arabi, for plaintiff-appellee.
    Stephen R. Perez, Chalmette, for defendant-appellant.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

Frederick Billiot appeals from a judgment limiting visitation with his two minor children. Jean Giglio, wife of appellant, filed a petition for separation from bed and board which included a prayer for permanent custody of the children. On October 23, 1981, she was awarded a sum for child support, permanent care, custody and control of their minor children subject to reasonable visitation by Mr. Billiot. A default judgment wak rendered in favor of Ms. Giglio decreeing a separation a mensa et thoro.

In December, 1981, Mr. Billiot petitioned the court to fix visitation, alleging that Ms. Giglio had refused reasonable visitation with his two daughters. After testimony by both parties, the judge set visitation with the condition that Mr. Billiot not take the children into the presence of any woman not his wife. It is to this provision that Mr. Billiot objects, contending that in the absence of any showing of detriment to the children, the lower court is without authority to place such restrictions on visitation and, further, that the ruling is contrary to current societal mores and jurisprudence.

The paramount consideration in determining visitation rights following a separation or divorce is the welfare of the child. Johnson v. Johnson, 357 So.2d 69 (La.App. 4th Cir.1978), writ denied, 359 So.2d 197 (La.1978). Parental rights must yield when the exercise of the right is not in the child’s best interest. Larroquette v. Larroquette, 293 So.2d 628 (La.App. 4th Cir. 1974). In Larroquette, this court held that bringing an eight year old into the presence of the father’s concubine was not in the best interest of the child. This court, therefore, denied overnight visitation and even restricted daytime visitation to take place outside the home.

In the present case, Mr. Billiot testified that he lives with a woman whom he plans to marry.' Ms. Giglio felt visitation with the children in this atmosphere would not be conducive to the girls’ moral welfare. The trial judge agreed and restricted the circumstances under which the father could exercise his visitation privileges. The trial court’s fundamental consideration, as it was in Larroquette was to prevent the undermining of the children’s respect for the family institution. We agree with the trial court’s reasoning. However, the order as rendered is overbroad and must be amended.

The order, as framed, could be interpreted to prevent visitation from taking place in the presence of church members, school teachers and even close relatives such as Billiot’s mother. A reading of the trial judge’s reasons for judgment discloses this was not his intention. For the foregoing reasons, the judgment of the trial court dated December 19, 1981, paragraph five only, is amended to read as follows:

A specific provision of this judgment is that he is not to take the children in the company of any female with whom he is living and to whom he is not married.

AFFIRMED IN PART. AMENDED IN PART.


author: BYRNES, Judge.

text:
    Van Louis Tucker, Wife of Michael E. RYAN, Sr. v. Michael E. RYAN, Sr.
    No. 13186.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Application for Rehearing Dismissed Dec. 9, 1982.

      Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for plaintiff-appellant.
    Philip Montelepre, New Orleans, for defendant-appellee.
    Before BYRNES, KLEES and WARD, JJ.
   BYRNES, Judge.

This is an appeal- from a judgment of the District Court finding mutual fault in a separation suit. We reverse.

The parties to this appeal have, to say the least, had a rocky relationship. They met in March of 1978, lived together for several months in 1979, married in May of 1980, separated in June of 1980, divorced in July of 1980, reconciled and remarried in January, 1981, and separated again in April, 1981. The grounds for this final separation, as alleged in Mrs. Ryan’s petition, were Mr. Ryan’s intemperance and mental cruelty. Mr. Ryan reconvened, alleging that Mrs. Ryan’s refusal to honor an ante-nupitual agreement wherein the parties agreed to establish permanent residence in Tennessee, and her refusal to participate in sexual activity or perform household chores for him was the cause of the separation.

The case came to trial on October 29, 1981. Judgment was rendered on November 5,1981 granting Mrs. Ryan a separation but finding the parties mutually at fault. Mrs. Ryan has appealed, contending that she was not at fault, or alternatively, that her fault was not of sufficient magnitude to justify a mutual fault separation. Mr. Ryan has not appealed or answered Mrs. Ryan’s appeal and the judgment finding him at fault is therefore final. Vail v. Vail, 390 So.2d 978 (La.App. 2nd Cir.1980); Watson v. Watson, 372 So.2d 639 (La.App. 1st Cir.1979).

Civil Code Article 141 provides:

“A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances alimony pendente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.”

To obtain a separation on a mutual fault basis each party must be guilty of conduct sufficient to constitute an independent ground for separation under Civil Code Article 138. Adams v. Adams, 389 So.2d 381 (La.1980); Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir.1980); Watson v. Watson, supra; Brocato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir.1979); Saucier v. Saucier, 357 So.2d 1378 (La.App. 4th Cir.1978); Dixon v. Dixon, 357 So.2d 856 (La.App. 4th Cir.1978).

We find that the record does not provide adequate support for the trial judge’s conclusion that there was mutual fault in this case.

The only evidence offered by Mr. Ryan to prove cruelty on Mrs. Ryan’s part was his own uncorroborated testimony. This testimony was contradicted not only by Mrs. Ryan, but by Tina Fogg, Mrs. Ryan’s daughter by a previous marriage, and by Peggy Childers, the manager of the apartment complex where Mrs. Ryan lived during her second marriage to Mr. Ryan. Both of these witnesses testified that Mrs. Ryan was a good housekeeper and that she washed clothes for Mr. Ryan. Tina Fogg additionally testified that her mother was a good cook and prepared meals for Mr. Ryan. Mr. Ryan himself admitted at trial that Mrs. Ryan had never actually refused to cook for him.

A spouse seeking a separation from bed and board must prove his right to the separation by a preponderance of the evidence. Johnson v. Johnson, 296 So.2d 470 (La.App. 2nd Cir.1974) writ denied 300 So.2d 183 (La.). Meyerer v. Meyerer, 255 So.2d 367 (La.App. 1st Cir.1971), Ellois v. Ellois, 145 So.2nd 123 (La.App. 4th Cir.1962). The uncorroborated testimony of one spouse is not sufficient to carry this burden of proof in the face of contradictory testimony by the other spouse when the credibility of neither is attacked. Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976); Johnson v. Johnson, supra; Walker v. Walker, 159 So.2d 344 (La.App. 2nd Cir. 1963). This is particularly true where, as here, the contradictory testimony of the spouse is supported by that of other witnesses who are not parties to the suit. Bell v. Magee, 406 So.2d 717 at 718[1] (La.App. 4th Cir.1981). Mongrue v. Mongrue, 398 So.2d 1199 (La.App. 4th Cir.1981).

As pointed out above Mr. Ryan’s testimony concerning Mrs. Ryan’s alleged acts of cruelty was not only uncorroborated but was flatly contradicted by Mrs. Ryan and two witnesses. In addition there is no evidence in the record that Mrs. Ryan ever actually refused to move to Tennessee. In fact, prior to suit Mrs. Ryan had signed a written offer to purchase a home in Memphis. This deal fell through due to problems with the financing.

This leads us to the conclusion that the trial court was clearly wrong in finding mutual fault in this case since Mr. Ryan did not prove by a preponderance of the evidence that he had independent grounds for separation under C.C. Art. 138. Without such a showing a court may not grant a separation based on mutual fault. See Adams v. Adams, supra. We therefore reverse the judgment of the trial court and grant Mrs. Ryan a separation from bed and board based on Mr. Ryan’s fault as proven at trial.

REVERSED AND RENDERED.


text:
    Leslie C. LESCALE v. The LOUISIANA COCA-COLA BOTTLING COMPANY LIMITED and North River Insurance Company.
    No. 13224.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Warren G. DeAgano, Jr., New Orleans, for plaintiff-appellee.
    Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for defendant-appellant.
    Before KLEES, BYRNES and WARD, JJ.
   BYRNES, Judge.

This is an appeal from a trial court judgment awarding appellee Lescale $27, 500.00 for a cut sustained by her while opening a can of “Tab”. Appellant, Louisiana Coca Cola Bottling Co. Limited (Coca Cola) appeals the trial judge’s ruling alleging three specifications of error. We find no merit to any of these specifications and affirm the lower court ruling.

The first specification of error urged by appellant maintains that the trial judge erred in determining that plaintiff cut her thumb as she opened the can of Tab. Appellee testified that she had the can on her kitchen table and was in the act of opening it when the top flew up and cut her finger. A careful reading of the record leads us to the same conclusion reached by the trial judge, that the plaintiff did indeed cut her thumb while opening the can. We are bound to affirm the trial judge’s findings of fact absent any manifest error. See Arceneaux v. Dominque, 365 So.2d 1330 (1979).

Coca Cola argues in their second specification of error that the trial judge erred in his application of res ipsa, loquitur. The appellant argues that even if the pull top did explode off the can that this is not in and of itself sufficient to envoke res ipsa loquitur where the product in question was not within the exclusive care, custody and control of the appellant. Appellant cites as authority Hudgens v. Interstate Battery Systems, 393 So.2d 940 (La.App. 3rd Cir. 1981) in support of its contention. Hudgens is clearly inapplicable to the facts at hand. In Hudgens a battery exploded when, contrary to instructions on the battery, Hud-gens lit a match next to it in order to check for a loose terminal. Additionally the battery was missing a few of its caps which allowed explosive gases to escape. The court rightfully found that the plaintiff’s negligence precluded the application of res ipsa loquitur against the battery manufacturer.

Exploding soft drink cases have been uni-formally treated by the courts of Louisiana. Without exception, the various courts of this State have held that when it is shown that there was no misuse of the product by plaintiff, or any contributing cause of the accident attributable to him, the fact that the container was not in the control of the defendant will not bar recovery on a theory of res ipsa loquitur. See Centineo v. Anheuser-Busch Inc., 276 So.2d 352 (La.App. 4th Cir.1973); Dykes v. Northriver Insurance Co., 270 So.2d 329 (La.App. 1st Cir. 1973); Johnson v. Louisiana Coca Cola Bottling Co., 63 So.2d 459 (La.Orl.App.1953).

The facts of this case indicated that there were no contributing factors of the accident attributable to appellee. The eight pack of “Tab” purchased by appellee was on the floor of the kitchen next to the refrigerator. She had already opened two or three of the cans earlier without incident. There was no indication that the soft drink cans were placed too close to a heat source nor was there any indication that the cans were mishandled in any way by plaintiff from the time they were purchased until the time of the accident. There was no indication that the cans were not in substantially the same condition they were in at the time of purchase. The record indicates that there is no evidence of any conduct on the part of the plaintiff which would preclude the application of the doctrine of res ipsa loquitur in light of the above quoted jurisprudence. The trial judge was correct in his determination of the liability of Coca Cola.

The third specification of error urged by appellant concerns the excessiveness of damages awarded to plaintiff. We note that the circumstances of this case compels us to affirm what we might otherwise consider an excessive award. Plaintiff has a fifteen per cent permanent partial disability to her right hand as a result of her injury. This disability consists of diminished nerve sensation of the thumb, due in particular to a loss of the third dimensional touch sensation. In affirming the award made by the trial judge, we note that the plaintiff’s occupation is that of a registered nurse. The diminished feeling as a result of the accident greatly hampers her in her occupation. The combination of her occupation together with the type of injury sustained leads us to conclude that the award is not outside the realm of reasonableness allowed the trial judge. See Reck v. Stephens, 373 So.2d 498 (La.1979).

For the above reasons, the trial court judgment is affirmed and all cost of this appeal are to be assessed to appellant.

AFFIRMED.