text:
    Natalie HILL and Lewis H. Hill, Plaintiffs-Appellees, v. Irving L. SILLS and Southern Farm Bureau Casualty Insurance Company, Defendants-Appellants.
    No. 14661.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.

      Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for defendants-appellants.
    Hudson, Potts & Bernstein by Jesse D. McDonald, Monroe, for plaintiffs-appellees.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

This appeal by a defendant automobile driver and his liability insurance carrier presents for our consideration the contention that damage awards to plaintiffs, husband and wife, were excessive. We answer in the negative and affirm.

Appellants do not contest the trial judge’s adjudication of liability or his awards for medical expenses. However, they assert that he abused his discretion by (1) awarding the plaintiff husband $2,500 in general damages; (2) awarding the plaintiff wife $20,000 in general damages; and (3) awarding the plaintiff wife $16,240 for lost wages and $32,500 for diminished earning capacity-

According to the record, on February 28, 1977, Lewis Hill, accompanied by his wife, Natalie Hill, as a passenger, was driving a Datsun pickup truck north on 18th Street in Monroe. While stopped in a line of traffic the pickup truck was struck from the rear by a Lincoln automobile driven by Irving Sills and knocked forward about eight feet. As a result of the impact both Mr. and Mrs. Hill sustained whiplash injuries to their necks. They sued Sills and his liability insurance carrier. Trial was had on February 4, 1980, followed by rendition of the judgment in favor of plaintiffs. Those awards, about which the appellants complain, will be discussed separately.

Award to Lewis Hill

Hill, 47 years of age at the time of the accident, testified that he felt no immediate adverse physical effects but awoke the following morning experiencing pain and soreness in his neck and shoulder areas. This was alleviated when he took some pain medication his wife had on hand.

Prior to the accident Mrs. Hill had scheduled a regular physical examination with her gynecologist in Birmingham, Alabama (where they resided before moving to Monroe) for March 4, 1977. In view of this commitment she did not seek medical attention in Monroe for neck complaints which developed immediately after the accident, preferring to consult a Birmingham neurosurgeon who had treated her for a low back ailment several years before.

Hill accompanied his wife to the office of Dr. Donald Sweeney, the Birmingham neurosurgeon, and, because of continuing discomfort in the cervical area, requested that he be examined also.

Dr. Sweeney testified that his examination of Hill revealed a good range of neck motion but some restriction of shoulder movement accompanied by tenderness in the rhomboid muscles. X-rays of the cervical spine showed a condition described by Dr. Sweeney as preexisting mild cervical spondylosis. It was Dr. Sweeney’s opinion that Hill had strained the muscles in his cervical region as a consequence of his involvement in the accident. The doctor’s prognosis was that Hill’s symptoms would last only two or three weeks provided there had been no aggravation of the underlying cervical spondylosis — a contingency upon which Dr. Sweeney refused to speculate because the one time he examined Hill was too soon after the accident to make a determination of this nature.

About three months after the accident Hill was transferred by his employer to Jacksonville, Florida. Although muscle relaxants prescribed by Dr. Sweeney afforded him a measure of relief, Hill stated that he still had discomfort in the shoulder area when engaging in strenuous physical activities and, particularly, those requiring lifting his arms above his head. Therefore, on October 4, 1977, Hill consulted his wife’s Jacksonville neurosurgeon, Dr. Edward Sullivan.

Dr. Sullivan stated that his examination of Hill revealed a full range of neck motion, an absence of tenderness in the cervical area and no palpable neck spasm. After reading the X-ray report prepared for Dr. Sweeney, Dr. Sullivan concluded that Hill had sustained a strain of the cervical spine superimposed upon preexisting degenerative changes. The prognosis was that Hill should expect maximum recovery from his injury within a time frame of from 12 to 18 months from the date of the accident.

Hill returned to Dr. Sullivan for a final visit on August 4, 1978, complaining again of pain across his shoulders following extended automobile trips or activities involving arduous physical exertion. Dr. Sullivan testified that this examination was essentially negative, with no abnormal neurological findings. He reaffirmed his original diagnosis that Hill suffered from dormant arthritis which had been activated by the trauma of the accident. It was recommended that Hill take aspirin for relief when needed.

At the trial Hill testified that he habitually avoided any physical activity which required raising his arms above the shoulder level. He declined to characterize his physical problem as either severe or “all that serious.”

In view of the described circumstances, we cannot state that the trial judge’s fact-finding that Hill suffered a minor cervical strain as a result of the accident was clearly wrong or that the general damage award of $2,500 was an abuse of his broad discretion.

Award to Mrs. Natalie Hill

(1) General Damage Award

The force of the impact between the Sills car and the truck occupied by the Hills was such that Mrs. Hill was thrown back, striking the left side of her head on a gun rack, and then forward, moving her neck in a whiplash fashion. She testified that she immediately felt pain in the left side of her neck. By the time she arrived at her residence she was also experiencing pain in the other side of her neck, and went to bed right away because of her extreme discomfort.

As previously explained, Mrs. Hill decided to delay seeking medical attention for her neck complaint until she visited Birmingham a few days later, and could be examined by Dr. Sweeney.

Mrs. Hill was seen by Dr. Sweeney in connection with her cervical injury but one time and then on March 4, 1977. Dr. Sweeney stated that she complained of severe pain in her neck muscles, radiating down into both shoulders. His examination revealed some restriction of neck motion and tenderness at the midpoint of her neck. X-rays showed a narrowing of disc inter-space in Mrs. Hill’s neck, with spurring, a condition described as characteristic of degenerative arthritic changes. Dr. Sweeney concluded that Mrs. Hill had sustained a cervical ligamentous strain superimposed upon a preexisting degenerative condition. He anticipated full recovery within two or three weeks if there was only soft tissue injury. Just as with Hill, Dr. Sweeney stated that the question of whether there was an aggravation by the accident of the preexisting degenerative condition could not be determined that soon after the accident and upon the basis of one examination. He prescribed medication for the relief of Mrs. Hill’s pain.

Approximately three months after the accident Hill’s employer transferred him to Jacksonville, Florida. Mrs. Hill stated that she continued to suffer ill effects from the accident and was particularly plagued with persistent headaches which started some three or four weeks following the accident. Therefore, on August 24,1977 she consulted Dr. Edward Sullivan, a Jacksonville neurosurgeon.

Dr. Sullivan testified that he read the X-ray report prepared for Dr. Sweeney and also performed a physical examination of Mrs. Hill. Based upon the information thus obtained, he concluded that Mrs. Hill suffered from degenerative arthritis in her neck at the time of the accident and had sustained a cervical sprain which was superimposed upon this underlying condition. He recommended that Mrs. Hill wear a “Philadelphia collar” for three weeks to alleviate her neck discomfort.

Thereafter, Dr. Sullivan saw and treated Mrs. Hill on October 4, 1977, January 18, 1978, April 5, 1978, August 4, 1978 and November 27,1978. During these visits she continued to complain of discomfort in the cervical region and nagging headaches. At the time of the April 5 visit she asserted that these headaches were occurring on a daily basis. Therefore, Dr. Sullivan prescribed the wearing of a 4-poster cervical brace with thoracic extension. This device apparently afforded Mrs. Hill some relief for her headaches.

Dr. Sullivan’s final diagnosis was that Mrs. Hill had sustained a cervical strain superimposed upon and aggravating a preexisting arthritic condition.

At the time of the November 27 visit, Dr. Sullivan decided that his patient had reached her maximum point of recovery, and expressed the belief that whatever problem she was suffering from at that stage was permanent since it had not gone away as of that date. He told Mrs. Hill “if she needed his services or felt bad she ought to call him and come back.” She did not return to Dr. Sullivan.

In the fall of 1979 Mrs. Hill’s Birmingham gynecologist made an appointment for her with Dr. Charles Hammond at the Duke University Medical Center for the conducting of tests to determine the basis for an adrenal gland disorder. Informed by Mrs. Hill of her neck complaints, Dr. Hammond arranged for her to consult with Dr. Donald McCollum, an orthopedic surgeon at the medical center. Dr. McCollum examined Mrs. Hill on September 26, 1979.

Dr. McCollum testified that Mrs. Hill had a 30% limitation of neck motion in all directions, which he ascribed to an arthritic condition between the fourth and fifth vertebrae and between the fifth and sixth vertebrae. X-rays also revealed a loss of the normal forward curve of Mrs. Hill’s neck. Based upon the results of his examination and the X-ray report, Dr. McCollum concluded that Mrs. Hill had a 25% permanent disability of the neck. In view of the history of the accident given by Mrs. Hill, this physician stated that her condition could be due to the trauma involved therein.

Dr. McCollum prescribed a regimen of physical therapy for Mrs. Hill, stating that more than 75% of his patients with similar cervical problems benefited from this type of therapy. If the physical therapy proved unsuccessful. Dr. McCollum recommended an operation entailing cervical fusion. Even with the latter, she would continue to have a 30% limitation of neck motion.

Mrs. Hill stated, at the time of the trial, that she was still suffering from neck injury sustained in the 1977 accident. Since any head movement caused considerable pain, particularly on the left side of her neck, Mrs. Hill testified that she habitually turned her entire body rather than just her head when the occasion demanded. She further contended that, because of her neck injury, she could not engage in strenuous physical activities, had to forego the pleasure of doing needlepoint, and could only do limited housework. Mrs. Hill conceded that since wearing the neck brace while traveling, as recommended by Dr. McCollum, her headaches occurred only about once a month rather than as frequently as before. She explained that these headaches were quite different from the migraine headaches from which she suffered prior to the accident.

The testimony of Mrs. Hill concerning her complaints of pain and discomfort in the years following the accident and describing her restricted physical activity was generally corroborated by her husband along with several relatives and friends.

Our careful consideration of this record does not show that the trial judge committed manifest error in his conclusion that, as a consequence of her accident, Mrs. Hill “suffered a serious cervical strain to the muscles and ligaments of her neck which aggravated a preexisting arthritic condition.” Further, the award of $20,000 in general damages for her injury was not an abuse of his wide discretion.

(2) Award for Diminished Earning Capacity

Mrs. Hill was 44 years of age at the time of the accident. Although not then employed, she was a registered X-ray technician, having qualified for this vocation in 1956. She was so employed for over four years in Jacksonville, Florida and for over nine years in Birmingham, Alabama, before moving to Monroe in 1968 in connection with her husband’s job with an insurance company.

Mrs. Hill testified that she did not seek regular work as an X-ray technician in Monroe because of the prevailing low wage scale. She also deemed it advisable to remain at home rather than work, outside because her only child, a son, was then in grade school. However, she asserted that she had definite plans to resume her employment as an X-ray technician after her husband was transferred to Jacksonville, both because of the relatively high pay scale in that area and also because her son had graduated from college. In fact, Dr. Marvin McClow, a Jacksonville radiologist, stated that he would have employed Mrs. Hill on a parttime basis as soon as she became established back in Jacksonville, at a pay rate of $5.50 per hour.

The record shows that the work of an X-ray technician requires considerable physical exertion — such as making overhead adjustments of X-ray machinery and handling heavy film cassettes. Mrs. Hill contended that she was physically unable to perform these tasks because of her cervical injury. Dr. Sullivan confirmed that efforts of this nature “would probably aggravate Mrs. Hill’s neck condition to some extent.” Therefore, he “would not recommend that she get involved in a very physical way.” Dr. McCollum’s opinion was that “her (Mrs. Hill’s) disability would interfere with her duties as an X-ray technician.”

The trial judge made the fact-finding that Mrs. Hill would have returned to her former kind of employment on January 1, 1978, but for her neck injury, and that this injury permanently disabled her from fully performing the tasks required of an X-ray technician. Since the record amply supports this conclusion, he did not commit manifest error in that finding.

It is now an established legal proposition in this state that a successful claimant is not only entitled to recover for his actual wage or income loss, but also for the effect of his disability on his capacity to earn. Even if unemployed at the time of injury, he may be entitled to an award for impairment of earning power. Such damages are calculated on the injured person’s ability to earn money rather than on what he actually earned before the injury. The rationale underlying this jurisprudential rule is that the injury inflicted may have deprived the claimant of a capacity he would have been entitled to enjoy even though he never profited from it monetarily. See Folse v. Fakouri, 371 So.2d 1120 (La.1979).

The fact that Mrs. Hill was not totally disabled to perform any gainful employment is no bar to her claim for a diminution in her earning capacity. See Danna v. Howard Griffin, Inc., 388 So.2d 446 (La. App.2d Cir. 1980).

Damages for the impairment of earning capacity cannot be calculated with certainty and in the exercise of that function the trial judge must be accorded broad discretion. Harris v. Bardwell, 373 So.2d 777 (La.App.2d Cir. 1979).

In this case we do not find that the trial judge’s award for diminution of Mrs. Hill’s earning capacity, both past (between accident and time of trial) and future, constituted an abuse of his wide discretion.

For the reasons explicated, we affirm the judgment of the district court, at appellants’ cost.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Robert Dale HALL, Plaintiff-Appellee, v. Janice HALL, nee Thompson, et al., Defendants-Appellees, (The Minor Child, Shelonda L. Hall), Defendant-Appellant.
    No. 14663.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.
    Dimos, Brown, Erskine & Burkett by David G. Erskine, Monroe, for defendant-appellant, Shelonda L. Hall.
    Bruscato, Loomis & Deal by Albert E. Loomis, III, Monroe, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The court-appointed curator appeals a judgment disavowing an infant child who was born about 12 months after the presumptive parents allegedly last lived together as husband and wife and before the marriage was dissolved by divorce in the same action.

The curator contends that the evidence presented is not sufficient to overcome the presumption of paternity. We agree and reverse. CC 184-190, as amended by Act 430 of 1976. Ogea v. Ogea, 378 So.2d 984 (La.App.3d Cir. 1979), writ refused.

A husband, presumptively the father of a child born to his wife during the marriage, may disavow that child if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father. CC 184, 187. The preponderance must be found from the type of facts either illustrated or of the same general nature or caliber as those illustrated in the official revision comments to the 1976 amendment to CC 187. This comment states in part:

“Examples of the type of facts . . . may include (but are not limited to) such items as blood grouping test results or other reliable scientific test results that preclude paternity ..., proof of sterility of the husband at the probable time of conception, and remoteness of the husband from the wife that makes the cohabitation unlikely at the probable time of conception.”

One case note has observed that in the initial interpretation of the 1976 amendment of the disavowal articles, the courts have recognized that the amendments are designed to strike a better balance between the policy favoring a finding of legitimacy and the need to prevent a husband from being unjustly burdened with paternity. 40 La.L.R. at p. 1028.

This record contains no evidence of scientific tests or of the husband’s sterility. Our issue then is the legal sufficiency of the evidence of remoteness of the husband from the wife that would make cohabitation unlikely at the probable time of conception.

While this determination, sometimes involving credibility, is best made by the trial court, the appellate court is constitutionally obligated to review facts to determine whether the total evidence, viewed most favorably to the trial court result, is legally sufficient to overcome the presumption of paternity that remains strong and viable, although rebuttable and which is the legal solution to the problem of proving biological fatherhood. Ogea, supra, at p. 989, 40 La.L.R. at p. 1026.

This marriage occurred in 1970 and produced two older children, one born in 1970, and the other in 1977. The litigants have always resided in Monroe. On December 2, 1980, the husband instituted this action for divorce and to disavow the child, alleging that he and his wife had not lived together since June 1979 and that the child, born June 19, 1980, “cannot be [his] child.”

This record contains only 13 pages of testimony of three witnesses: Mr. Hall, his mother, Ms. Claudell Hall, and Hall’s casual male friend, Boose. The wife did not appear or answer and the judgment of divorce was by default. Hall testified that he had not lived with and had not had intercourse with his wife since she moved from the family home to her mother’s home in June 1979. Hall said he “understood” there was another man, Freddie Cyrus, “involved” with his wife.

Hall’s mother, Ms. Claudell Hall, said that her son came to live with her about a year later, in June 1980, and that at visitation times she went to the home of her daughter-in-law in Monroe to pick up and return the older children because her son wanted nothing to do with his estranged wife. Ms. Hall said that her son had not lived with his wife since June 1979 and that on one occasion she saw a man at the house of her daughter-in-law.

Boose said he had known Robert Hall for about two years and that he knew Hall’s wife “on sight”. Robert Hall brought his children to visit the Boose children on at least two occasions and had briefly conversed with Boose in passing on the street on weekends. Boose works different hours and at a different place from Hall. Boose had visited Hall after Hall’s wife moved away and before Hall moved to his mother’s home. Boose testified that to his knowledge, Hall had not reconciled with his wife since she moved away. Hall’s mother, who works nights while Hall works days, also testified that to her knowledge, Hall had not reconciled with his wife. Both Boose and Ms. Hall admitted that they did not know what Hall did outside their presence and that their testimony was based on the belief that Hall would have told them of any reconciliation.

The fact that Hall’s wife did not appear or testify does not affect Hall’s burden of proof in the disavowal action which is against the child. Boudreaux v. Matt, 370 So.2d 139 (La.App. 3d Cir. 1979); 40 La.L.R. 798. Hall testified that he had seen his wife in the presence of Freddie Cyrus but does not say when or where. Hall’s mother indicates that Hall came to “the home” to visit his older children before he moved in with his mother. We deduce that the trial judge interpreted this as referring to Hall’s mother’s home.

Remoteness between the husband and wife, as affects the presumption of paternity and before the disavowal articles were amended in 1976, was initially required to be of such a degree in distance that cohabitation was physically impossible. See former CC Art. 189, repealed by Act 430 of 1976, Succession of Saloy, 44 La.Ann. 433, 10 So. 872 (1892), LeJeune v. LeJeune, 184 La. 837, 167 So. 747 (1936). In more recent years, the factors of time, distance, and the degree of estrangement of the marital partners determine remoteness. See Gillies v. Gillies, 144 So.2d 893, 896 (La.App. 4th Cir. 1962). Compare Dugas v. Henson, 307 So.2d 650 (La.App. 3d Cir. 1975).

Here the husband and wife were not estranged to such a degree that the wife did not voluntarily allow visitation privileges to the husband before the action was filed. Here the husband offered no testimony about the estranged wife’s attitude toward him, the proximity of the place or places she was living to the places he was living, the term of the wife’s pregnancy, how the child’s birth was registered, the time and degree of the wife’s “involvement”, as the husband “understood” it, with another man, or the circumstances under which either or both he and she lived after she left the marital domicile, and the approximate date in June 1979 that the wife left. At best, the husband has shown that his wife left, he said initially, in July, and later said, in June; that he has not reconciled or had intercourse with her since that time, although they live in reasonable proximity to each other; that he “understands” that she is “involved” with another man; and that he is privileged to see his older children who live with her.

Because of the lack of evidence, from which we or the trial judge might weigh the time and distance factors and the degree of estrangement and determine that reasonable opportunity for intercourse did not exist, we must respectfully overrule the trial court and find that the evidence here presented is not legally sufficient to sustain the husband’s burden of proving the fact of remoteness by a preponderance. The remoteness under CC 187 must be deduced or found from facts in evidence which makes the cohabitation of the husband and wife unlikely at the probable time of conception.

“Testimony of the husband that he is not the father, when he has had numerous opportunities to have intercourse with his wife ... is not sufficient as a type of fact contemplated by the Legislature. Otherwise, the example of ‘remoteness’ would be incongruous. * * * Any other conclusion would defeat the Legislative will and make it possible for a husband or wife or both to cause a child to be disavowed at their whim of fancy. Although under the new Act, the presumption of paternity may not be conclusive, it nevertheless remains strong and viable.” Ogea, 378 So.2d at p. 989-990, writ refused.

Judgment is reversed and it is hereby ordered that the demands of Robert Dale Hall disavowing the child born to his wife, Janice Thompson Hall, on June 19,1980, are rejected at his cost.

REVERSED AND RENDERED.

      . See and compare 40 La.L.R. 550 (1980); 37 La.L.R. 95 (1976); 41 La.L.R. 381 (1981); Pounds v. Schori, 377 So.2d 1195 (La.1979); Circello v. Circello, 369 So.2d 722 (La.App. 1st Cir. 1979); Mock v. Mock, 400 So.2d 248 (La.App. 4th Cir. 1981).


author: FRED W. JONES, Jr., Judge.

text:
    NEWSPAPER PRODUCTION COMPANY, Plaintiff-Appellant, v. Douglas PERRY, Defendant-Appellee.
    No. 14657.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.
    Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for plaintiff-appellant.
    D. G. Tyler, Shreveport, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

From a judgment rejecting its demands against a former newspaper carrier for failure to pay for newspapers allegedly sold to him for resale, plaintiff appeals. We affirm.

Plaintiff’s suit was premised on the contention that between December 1, 1978 and March 1, 1979 its contractual relation with defendant was that of vendor-vendee of newspapers for resale. However, the trial judge concluded that plaintiff had failed to prove “what kind of contract there may have been between the plaintiff and the defendant.”

The record reveals that in the latter part of 1978 defendant learned from his brother, a newspaper carrier for plaintiff, that a newspaper route in north Shreveport would soon become available because of plaintiff’s intention to dismiss its current carrier. The latter’s drinking problem had led to a pronounced decline in the sale of newspapers along this particular route. At his brother’s prompting defendant met with plaintiff’s route supervisor (whose name never appeared in the record) to discuss the possibility of defendant assuming responsibility for the newspaper route.

According to defendant, the supervisor conceded that plaintiff’s newspaper circulation along this route was in a deplorable state, as evidenced by the fact that the supervisor possessed neither an accurate list of subscribers nor their home addresses. Defendant testified that, as an inducement for his assumption of responsibility for “straightening out” the circulation of newspapers along this route, the supervisor agreed that defendant would receive a salary of $1,000 per month payable out of his receipts from newspaper sales. Since he never collected that amount during any one of the three months that he worked for plaintiff, defendant denied owing anything.

Plaintiff did not refute defendant’s testimony concerning his contractual relationship with plaintiff. It did not call as a witness the route supervisor who contracted with defendant. In fact, none of plaintiff’s employees who testified definitely established the identity of that supervisor. Elmer Lockwood, supervisor for another route, stated that “Ronnie Smith handled all of it.” The witness then added that “Lyles”, a district manager at the time, might have made representations to defendant. Judy Skinner, credit manager in plaintiff’s circulation department, thought that “Lyle Roach” hired defendant, but explained that this party was no longer in plaintiff’s employ.

In summary, defendant claimed that during the period in question he was an employee of plaintiff rather than an independent contractor who purchased newspapers for resale. Plaintiff presented no evidence to rebut this contention. Consequently, we agree with the trial judge that plaintiff failed to prove by a preponderance of the evidence that defendant purchased newspapers from it.

However, even if plaintiff did establish the sale of newspapers to defendant, the trial judge correctly ruled that plaintiff did not prove by competent evidence the balance due on this account.

According to the evidence presented at the trial, each of plaintiff’s route supervisors prepared daily draw sheets for his newspaper carriers, showing the number of newspapers for which the carrier was charged on that particular day. The information from the daily draw sheets was then posted on a daily basis to ledger sheets by employees in plaintiff’s circulation department. At the end of the month the information from the ledger sheets was transposed to a ledger card for the individual carrier by employees in plaintiff’s bookkeeping department.

Plaintiff sought to prove the balance owed by defendant by offering in evidence defendant’s ledger card. Judy Skinner, custodian of the ledger card, identified it as accurately reflecting the status of defendant’s unpaid account. This witness made some of the entries pertaining to defendant on the ledger sheets, but did not post that information to the ledger card tendered in evidence nor did she supervise that posting. The party who performed this task for plaintiff was neither called as a witness nor identified.

Louisiana has long recognized the business records or regular entries in the course of business exception to the hearsay rule in both civil and criminal cases. State v. Monroe, 345 So.2d 1185 (La.1977); State v. Hodgeson, 305 So.2d 421 (La.1974); Theus, Grisham, Davis & Leigh v. Dedman, 401 So.2d 1231 (La.App.2d Cir. 1981); Herlitz Construction Co. v. Clegg Concrete, Inc., 378 So.2d 1002 (La.App. 1st Cir. 1979).

This exception to the hearsay rule provides, in general, that a permanent record made in the ordinary course of business, by a person unavailable for testimony, from personal knowledge of the facts recorded or from information furnished by one having a business duty to observe and report the facts, is admissible as proof of the facts recorded, in the absence of a strong motive to misrepresent, if the record is the first collected and recorded memorial. McCormick, On Evidence, § 307, p. 721.

Louisiana jurisprudence has elaborated upon this general principle by requiring the laying of the following foundation as a prerequisite to admissibility of business records:

(1) A showing that persons concerned with recording the information are unavailable for testimony, or production of such persons would be a needless burden.
(2) The first collected record available to or usable by the court is introduced.
(3) The records are identified at the trial by one familiar with the bookkeeping procedure.
(4) The evidence seems reliable after considering such factors as: contemporane-ousness of the entry with the occurrence or fact recorded; first-hand knowledge of the entrant; existence of a business or professional duty to record or report the facts in the regular course of business; completeness and honest appearance of the books; and absence of fraud in making the entries or in destroying the supporting memoranda.

See Comment, “Business Records in Louisiana as an Exception to the Hearsay Rule,” 21 La.L.Rev. 449, 486 (1961).

As noted, the particular books or records offered in evidence under this exception to the hearsay rule should be the first regular and collected records. It is presumed, obviously, that greater reliability is assured by proximity in time between occurrence of the transaction and the recording of the event. However, in two Louisiana cases summaries of daily records of large construction projects were admitted because it was either physically impossible for the court to examine all supporting memoranda or the supporting memoranda were destroyed in the regular course of business and there was no hint of fraud. Shea v. Sewerage & Water Bd. of N.O., 124 La. 299, 50 So. 166 (1909); Crosby v. Little River Sand & Gravel Development, 212 La. 1, 31 So.2d 226 (1947).

Ledger sheets made up from delivery tickets were deemed admissible in Talley v. Duplantis, 213 So.2d 82 (La.App. 1st Cir. 1968), after it was established that the entries were made in the ordinary course of business, there was no indication of fraud or ill practice, and the preparer of the documents testified as to their accuracy and authenticity.

In State v. Hodgeson, supra, the Louisiana Supreme Court ruled that computer print-out sheets showing charges for telephone calls were admissible as entries in the regular course of business once it was shown that (1) the electronic computing equipment was recognized as standard equipment, (2) the entries were made in the regular course of business at or reasonably near the time of the happening of the event recorded, and (3) the foundation testimony satisfied the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and to justify its admission.

This court held in Theus, Grisham, Davis & Leigh v. Dedman, supra, that “summaries of voluminous records are admissible where the preparer is available for cross examination and the original materials are available for examination by the opposing party.”

In this case it is obvious that the ledger card offered by plaintiff to prove defendant’s indebtedness was not the “first collected and recorded memorial” evidencing the status of the account. The first written documents were the daily draw sheets. However, under the rationale of the cited cases, upon a laying of the proper foundation the daily ledger sheets would have also been admissible as regular entries in the course of plaintiff’s business. Not only did the ledger card fail to fall into this category, but plaintiff did not make available to the defendant at trial for examination the daily draw sheets or the daily ledger sheets. Furthermore, the witness, upon the basis of whose testimony plaintiff sought to introduce the ledger card, was not the party who posted the entries to the card nor did she supervise the posting of that data. Therefore, plaintiff did not establish the reliability of the ledger card as evidence of the trustworthiness of the information contained thereupon. Consequently, we agree with the trial judge that the ledger card was inadmk. ible hearsay.

For these reasons, we affirm the judgment of the district court, at appellant’s cost.

       A joint venture between two Shreveport newspapers.


author: JASPER E. JONES, Judge.

text:
    Lane Smith ADAMS, Plaintiff-Appellee, v. Harold Oscar ADAMS, Defendant-Appellant.
    No. 14654.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.

      Roland V. McKneely, Jr., Bossier City, for plaintiff-appellee.
    Joel M. Sermons, Shreveport, for defendant-appellant.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

Defendant, Richard K. Adams, in his capacity as administrator of the estate of Harold Oscar Adams, appeals a judgment against him in favor of decedent’s former wife for accrued past due alimony pendente lite which decedent had not paid during his lifetime.

The record does not contain a transcript of the testimony as authorized by LSA-C. C.P. art. 2130, nor does it contain in lieu of the transcript of testimony a narrative of the facts as provided for by LSA-C.C.P. art. 2131. The record does contain excellent written reasons for judgment which reveal substantially all of the material testimony, and the record is otherwise sufficiently complete to permit full consideration of the issues. Some of the assignments of error will require review of facts and we shall for that purpose use the written reasons of the trial judge in lieu of the transcribed testimony or a narrative of the facts. Robinson v. Jackson, 255 So.2d 846 (La.App.2d Cir.1971); Succession of Seals, 243 La. 1056, 150 So.2d 13 (La.1963).

Plaintiff obtained a judgment for alimony pendente lite against Harold Oscar Adams on October 20, 1977 in the amount of $820 per month. Plaintiff obtained judgments against her husband accruing past due alimony pendente lite on December 18, 1977, February 16, 1978, and July 27, 1978. The total amounts of these judgments, including attorney’s fees but excluding interest and costs, was the sum of $5,478.76. Plaintiff in an attempt to enforce collection of these judgments seized stock belonging to her husband in a small corporation. On May 15, 1979 plaintiff accepted $5,227.14, which was a portion of the consideration for the sale of a piece of property which was a major asset of the corporation and released her seizure of the stock of the corporation. Plaintiff’s attorney wrote a letter acknowledging receipt of the $5,227.14 and stated therein that the three judgments for past due alimony were satisfied by the payment of this sum and authorized the cancellation of the judgments from the mortgage records of Bossier Parish.

On December 20, 1979 Harold Oscar Adams obtained a judgment of divorce from plaintiff. The divorce judgment contained no permanent alimony award in favor of plaintiff. Harold Oscar Adams died on April 7, 1980 and Richard K. Adams qualified as administrator of his succession. The succession remains under administration and there has been no judgment of possession rendered in the proceedings.

Plaintiff sued the administrator of her former husband’s succession to accrue the past due alimony pendente lite which had become due under her judgment of October 20, 1977 between the date of July 27, 1978 when she had last obtained a judgment accruing the past due alimony and December 20,1979 when the alimony pendente lite was terminated by the divorce judgment which her husband had obtained.

The trial court awarded plaintiff judgment for the amount sued for and the defendant appealed.

Defendant assigns as error: (1) the trial judge’s refusal to sustain the exception of failure to join indispensable parties who defendant contends were the decedent’s forced heirs, (2) the trial judge’s refusal to sustain the exception of no cause of action which defendant based upon the contention that the obligation to pay alimony pendente lite was personal to decedent and terminated upon his death, (3) the trial judge’s refusal to admit the testimony of defendant that decedent had told him that the payment of the $5,227.14 to plaintiff on May 15, 1979 was in full settlement of all her claims for past and future alimony, and (4) the trial court’s finding that plaintiff had established her case by a preponderance of evidence under the burden of proof provisions of LSA-R.S. 13:3721 and 3722, commonly referred to as the “Dead Man’s Statute.”

Defendant’s contention that the forced heirs of the decedent were indispensable parties to this action is without merit. The trial judge correctly applied the provisions of LSA-C.C.P. art. 734 which provides that the proper defendent in a suit to enforce an obligation of the decedent while the succession is under administration is the succession representative. The article further provides that heirs of the decedent need not be joined as defendants. See Stansbury v. Hover, 366 So.2d 918 (La.App. 1st Cir. 1978); Gibbs v. Succn. of Scott, 265 So.2d 249 (La.App.3d Cir. 1972).

Defendant contends that plaintiff’s claim to the accrued past due alimony terminated on the death of her former husband. While it is true that no claim may be asserted against the succession of a decedent for alimony which would have become due subsequent to his death, see Cortes v. Fleming, 307 So.2d 611 (La.1973), this is not true of alimony which becomes due before the death of the party who owes it. We note here that all the alimony which plaintiff in this action sought judgment for had become due before decedent had obtained his divorce from plaintiff on December 20, 1979, which was about SVz months before the death of plaintiff’s former husband. Plaintiff’s right to the past due alimony is a vested property right. Theriot v. Melancon, 311 So.2d 578 (La.App. 3d Cir. 1975); Rodriguez v. Rodriguez, 245 So.2d 765 (La.App. 4th Cir. 1971). Plaintiff was entitled to assert her claim for the past due . alimony against the succession of her former husband. Succession of Mioton, 201 La. 879, 10 So.2d 688 (1942); Cortes v. Fleming, supra. The refusal of the trial court to sustain defendant’s exception of no cause of action was correct.

Defendant contends plaintiff accepted the $5,227.14 on May 15, 1979 in full satisfaction of all alimony then due and which would become due in the future. The trial judge found that defendant’s testimony that decedent had told him that the payment of $5,227.14 was made by him and accepted by plaintiff in full settlement of all past and future alimony obligations was inadmissible hearsay. The authorities cited by defendant do not support the admissibility of the statement on any grounds that it comes within any of the exceptions to the hearsay rule. The purpose of the testimony was to establish an extrajudicial statement to prove the truth of matter contained in the statement, and it was inadmissible hearsay.

The trial judge pointed out in his written reasons for judgment that plaintiff denied she waived the payment of the alimony sued for and that the only evidence offered to the contrary was the above discussed hearsay testimony of the defendant. The payment was made following the seizure of defendant’s stock on writs of fieri facias issued for the purpose of enforcing the three earlier obtained judgments accruing past due alimony. The amount of the payment was approximately the total of the principal amount of these judgments. The seizure was released following the payment, and plaintiff’s attorney wrote a letter acknowledging receipt of the payment of the three judgments and authorizing the cancellation of the judgments. These circumstances all corroborate plaintiff’s testimony that she did not waive any alimony not included in these judgments when she accepted the payment.

In Dauzat v. Dauzat, 391 So.2d 60 (La.App. 3d Cir. 1980) the court stated:

“The issue is whether the obligation to pay alimony pendente lite may be waived or remitted by oral agreement between the spouses after the judgment of separation but prior to divorce without a modification of the judgment awarding the alimony. We conclude it may not.” Id. at 61.

Even if the statement of decedent to defendant had been admissible it would not have been sufficient evidence to establish a waiver by plaintiff of her alimony.

Appellant contends that plaintiff failed to prove her claim against decedent because only she testified in support of her claim and that LSA-R'.S. 13:3721 and 3722 require that her claim be proved by at least one creditable witness other than the claimant, and other corroborating circumstances.

This court in the case of Taylor v. Bocock, 276 So.2d 347 (La.App. 2d Cir. 1973) set forth the purpose of these provisions as follows:

“The purpose of the ‘Dead Man’s Statute’ is to protect the estates of decedents, their representatives and heirs, against stale and unfounded claims which might have been refuted or disproved by the testimony of the deceased were he living. Succession of Pohlmeyer, 192 So.2d 870 (La.App. 4th Cir. 1966); Collier v. Administrator, Succession of Blevin, 136 So.2d 774 (La.App. 4th Cir. 1962—cert. denied); In re Ford's Succession, 91 So.2d 71 (La.App. 1st Cir. 1957—cert. denied).” Id. at 350.

These statutes relate to claims that must be proven by parol evidence. We find them inapplicable to the claim for the alimony here asserted for the reason that the claim is established by the judgment ordering decedent to pay alimony pendente lite. The contention of waiver of the obligation to pay sums owed under the judgment is an affirmative defense which must be proven by the defendant. The judgment ordering the payment of the alimony sued for is in the record.

We agree with the trial judge that plaintiff has sustained her burden of proving her claim by a preponderance of evidence.

The plaintiff answered the appeal seeking an increase in the $350 attorney’s fee award made by the lower court. We find an increase in the attorney’s fee award justified because of the legal work required by the appeal and increase the award from $350 to $850.

We AMEND the judgment appealed by recasting the last paragraph to read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of LANE SMITH ADAMS and against RICHARD K. ADAMS, Administrator of the Estate of Harold Oscar Adams, in the full and just sum of EIGHT HUNDRED AND FIFTY ($850.00) DOLLARS attorney’s fees for the institution and prosecution of this action, together with all costs of these proceedings.

As AMENDED the judgment is AFFIRMED. Appellant is assessed with all costs on appeal.

      . CCP art. 734: The succession representative appointed by a court of this state is the proper defendant in an action to enforce an obligation of the deceased or of his succession, while the latter is under administration. The heirs or legatees of the deceased, whether present or represented in the state or not, need not be joined as parties, whether the action is personal, real, or mixed.

      . R.S. 13:3721 — Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
      (1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased; ... (emphasis supplied).

      . R.S. 13:3722 — When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances, (emphasis supplied).


text:
    Nathaniel ZENO, Sr., et al, Plaintiff-Appellants, v. LINCOLN GENERAL HOSPITAL, et al, Defendants-Appellees.
    No. 14648.
    Court of Appeal of Louisiana, Second District.
    Sept. 29, 1981.

      Paul Henry Kidd, Monroe, for plaintiffs-appellants.
    Shadoin & Bleich by Joe Bleich, Ruston, Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for defendants-appel-lees.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Nathaniel Zeno, Sr. and his wife, Ruthel D. Zeno, plaintiffs in this malpractice action against Dr. Lamoyne C. Bleich and Lincoln General Hospital, appeal a judgment rejecting their demands for damages allegedly sustained because Dr. Bleich was guilty of negligence when he performed an operation upon Mrs. Zeno’s rectum. We affirm.

The medical records of Mrs. Zeno at Green Clinic in Ruston, Louisiana, which are in evidence, reflect that she was having problems in the rectal area as early as 1960, and that she had been seen with rectal complaints by doctors on the staff of the clinic, other than Dr. Bleich, on May 21, 1968, April 7, 1969, September 15,1969, and September 19, 1969.

She was advised by Dr. Lumpkin, who saw her on September 19, 1969, and by Dr. Hall, who saw her on September 22, 1969, that she needed surgery to correct her rectal problems. She first saw Dr. Bleich, who was a member of the staff of Green Clinic, on October 29,1969 complaining of pain and drainage from the rectum. She stated that the drainage had commenced approximately one year earlier following the lancing of a boil on her right buttock by Dr. Robinson in Jonesboro, Louisiana.

Dr. Bleich diagnosed her rectal problems as an anal fistula and hemorrhoids and recommended surgery. Mrs. Zeno was told by Dr. Bleich that surgery was the only solution for her rectal problems. He told her he was going to cut out the inflamed tissue and remove the hemorrhoids. She was admitted to Lincoln General Hospital on November 2, 1969, and on that date signed a Lincoln General Hospital consent form consenting to the operation for the removal of hemorrhoids and anal fistula.

Dr. Bleich performed the operation on Mrs. Zeno on November 3, 1969 and removed the hemorrhoids, a fissure, a fistula and associated scar tissue located in the anal canal and in the external sphincter. The fissure was described by Dr. Bleich as a raw area in the anal canal. He described the fissure removed from Mrs. Zeno’s anal canal as being much like a badly chapped lip and the condition would cause substantial pain particularly during bowel movements. Dr. Bleich described the fistula as a chronically infected abnormal passageway with an opening into the anal canal, the passageway ran from the anal canal into the buttock area around the anus. The fistula tract removed from Mrs. Zeno extended from her anal canal an inch and one-half into her buttock. Dr. Bleich stated: “She had chronically infected tissue with a fistula in one area and this fissure or ulcer right close by. I mean they were really almost a part and parcel of the same thing.”

The drainage and infection from the fistula in Mrs. Zeno’s rectum over the long period of time caused inflammation, infection and scar tissue in the external sphincter muscle. Dr. Bleich cut from the sphincter a substantial part of the scar tissue. This muscle contributes a small part to the controlling of bowel movement.

Following the surgery Mrs. Zeno complains of continued pain and fecal incontinence. She contends these serious physical problems were caused by the negligent manner in which Dr. Bleich performed the rectal surgery.

At trial of the case plaintiffs called Dr. Roncal, a general practitioner from Jones-boro, Louisiana, whom Mrs. Zeno first consulted in November of 1977 in an attempt .to obtain relief from her pain and her incontinent condition. She stated that she had seen him about twenty-five times. Dr. Roncal examined her and found a slightly relaxed sphincter. He obtained the records of her operation from Dr. Bleich. He could find no explanation for her continued pain. Dr. Roncal stated he had never seen any evidence that Mrs. Zeno was incontinent. He observed at the time he testified that he had been in the courtroom with Mrs. Zeno for four hours and she had not been incontinent during that period. He stated from his examination of Mrs. Zeno and from Dr. Bleich’s operation report, he could detect no error in the manner in which Dr. Bleich performed the operation. Dr. Roncal admitted that he may have told Mrs. Zeno, at the time he initially examined her that Dr. Bleich had cut her too deep but that his opinion was based upon her having described the operation to him as being solely for the purpose of removing the hemorrhoids. Dr. Roncal stated that after he reviewed the operation report reflecting that a fistula and fissure were also removed at the time the hemorrhoids were removed that he was then of the opinion that Dr. Bleich had performed the operation in a correct manner. He concurred in the opinion of Dr. Bleich that the only way the fistula could be cured was by surgical removal. Dr. Ron-cal referred Mrs. Zeno to Dr. John E. Ray, a proctocologist at the Ochsner Clinic in New Orleans, Louisiana, who was not called as a witness by plaintiffs, but his report was placed into evidence by defendants. Dr. Ray examined Mrs. Zeno on November 23, 1977. His examination revealed no fissure, abscess, infection or other lesion in Mrs. Zeno’s rectum. He found only a mildly relaxed external sphincter. He could find no explanation for Mrs. Zeno’s pain, other than “she might have a neuroma entrapped in the scar tissue in the anal region.”

Mrs. Zeno called no medical witness except Dr. Roncal and Dr. Bleich, whom she called under cross-examination. Dr. Bleich testified that he possessed all the skills of a general surgeon and that he skillfully performed the operation using his best judgment. He testified that the operation was the only way to cure the'fistula and that if it weren’t removed that there was a possibility that Mrs. Zeno would develop septicemia. This is a condition where the infection from the fistula gets into the bloodstream and could spread throughout Mrs. Zeno’s body causing many serious complications. Dr. Roncal concurred in this opinion of Dr. Bleich. . Dr. Jack Tom Jackson, an outstanding and experienced surgeon from Monroe, Louisiana, who had reviewed Dr. Bleich’s operating records, Dr. Ray’s report, and who sat through the trial and heard the testimony of Mrs. Zeno, Dr. Roncal and Dr. Bleich, testified for the defendants that the surgery was necessary. He stated that the fistula could only be cured by surgery and that if it were not removed there was a possibility that Mrs. Zeno would develop septicemia and cancer. He stated that he had performed many similar operations wherein he removed a fistula and fissure and that he always cut completely through the external sphincter in order to leave a relaxed external sphincter as he believed this was important to prevent a recurrence of the fissure. He concluded Dr. Bleich had properly performed the essential surgery on Mrs. Zeno. He could offer no explanation for Mrs. Zeno’s continued pain other than a neuroma as suggested by Dr. Ray. A neu-roma is a small growth at the end of a nerve which has been injured. Dr. Jackson stated that it is impossible to avoid cutting nerves during surgery and a neuroma may result from the injured nerve and cause pain. Dr. Jackson stated there was no way to locate and remove the neuroma because it could be located at any place in the extensive scar tissue which existed in Mrs. Zeno’s rectum.

The trial judge in his well written reasons for judgment' concluded that Mrs. Zeno had consented to the operation and that res ipsa loquitur was inapplicable to the facts of this case. He concluded plaintiffs had failed to prove by a preponderance of evidence that Dr. Bleich lacked the knowledge or skill of a surgeon, or failed to use reasonable care, along with his best judgment in the application of his skill in the performance of the operation. He found no evidence that Mrs. Zeno sustained any injury from any negligence of Dr. Bleich.

Plaintiffs assign as error on appeal the trial judge’s refusal to apply the doctrine of res ipsa loquitur and his finding that Mrs. Zeno had consented to the operation.

In the recent case of White v. McCool, 395 So.2d 774 (La.1981), the supreme court explained the burden of proof of a plaintiff in a malpractice case and the circumstances where the doctrine of res ipsa loquitur is applicable to a malpractice action. The court stated:

“The pertinent statutory provision, enacted in 1975, places upon the plaintiff in a medical malpractice action the burden of proving ‘the degree of care ordinarily practiced by physicians and dentists within the involved medical specialty,’ R.S. 9:2794(A)(1); ‘that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill,’ R.S. 9:2794(A)(2); and ‘that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care plaintiff suffered injuries that would not otherwise have been incurred,’ R.S. 9:2794(A)(3). The statute also provides that ‘[t]he jury shall be further instructed that injury alone does not raise a presumption of the physician’s or dentist’s negligence,’ R.S. 9:2794(C). That provision is immediately succeeded by one which stated that ‘[t]he provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.’ R.S. 9:2974(C).
Plaintiff argues that the doctrine of res ipsa loquitur is applicable and thus under R.S. 9:2794(C) the other provisions of the statute relative to plaintiff’s burden do not apply. Rather, the burden is on the defendant to establish his lack of negligence.

The landmark case in our jurisprudence concerning the doctrine of res ipsa loquitur is Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957). Therein, we stated:

‘A determination of a proper instance for application of the principle of res ipsa loquitur has been the subject of volumes of discussion by learned jurists and legal scholars, who have been at pains to point out that the maxim means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that the rule rests for its justification upon the common experience that accidents from such causes do not commonly occur in the absence of negligence; and that it is the lack of direct evidence indicating negligence on the part of the defendant as the responsible human cause of a particular accident which actually furnishes the occasion and necessity for invoking the rule in its strict and distinctive sense. It is generally conceded that res ipsa loquitur in no way modifies the rule that negligence will not be presumed. The application of the rule does not, therefore, dispense with the necessity that the plaintiff prove negligence, but is simply a step in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence, thereby obtaining an advantage and placing on the defendant the burden of going forward with proof to offset that advantage. When all the evidence is in, the question is still whether the preponderance is with the plaintiff. All that is meant by res ipsa loquitur is ‘that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant’s duty.’ [citation omitted.]
* * * * * *
‘In the case of Morales v. Employers’ Liability Assur. Corp., 202 La. 755, 12 So.2d 804, this Court aptly stated: ‘It is the duty of the plaintiff to prove negligence affirmatively; and, while the inference allowed by the rule of res ipsa loquitur constitutes such proof, it is only where the circumstances leave no room for a different presumption that the rule applies. When it is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails and it can not be invoked.’ 202 La. at page 769, 12 So.2d at page 808.’ ” McCool, 395 So.2d at p. 777.

The court concluded that res ipsa loquitur was inapplicable to plaintiff’s claim based upon bleeding following surgical repair to plaintiff’s liver cut during gall bladder surgery:

“After reviewing the records and exhibits in this case we conclude that the facts and evidence introduced do not establish a situation in which defendant’s negligence is the most plausible explanation for why plaintiff was bleeding internally after the original operation. Had the facts been more self evident (i. e., a surgical instrument being left in the abdomen) or had there been produced expert or other evidence suggesting, for instance, that a sutured liver doesn’t bleed absent improper suturing or improper suturing technique (the latter being something that this Court cannot divine) our conclusion would be different.” McCool, 395 So.2d at p. 777 [emphasis supplied.]

Plaintiffs here contend that they have established that Mrs. Zeno has pain and is incontinent following the surgery, and that these facts strongly suggest the negligence of Dr. Bleich and for that reason the doctrine of res ipsa loquitur is applicable. Plaintiffs rely on the case of McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973), where it was said:

“Res ipsa loquitur is a rule of circumstantial evidence. Its application is normally determined at the conclusion of the trial. The rule applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury.” [citations omitted.] Id. at 261. [emphasis supplied.]

The fact that Mrs. Zeno has pain which she describes as being in her rectum and also as being in her back and in her right hip and right leg, does not establish an injury for which the most plausible explanation is the negligence of Dr. Bleich in performing the operation. Drs. Ray, Roncal, Bleich and Jackson all expressed the opinion that an explanation for the pain in the rectum could be the fact that nerves had been severed during surgery causing the formation of a neuroma in some of the scar tissue which is a result of the surgery. All of the doctors who testified at trial stated that when surgery is performed the severing of nerves, many of which are so small that they cannot be seen, is unavoidable. Mrs. Zeno testified that she had been advised by a doctor in Shreveport, who was an orthopedic, that she had a diseased disc and this could be a possible explanation of Mrs. Zeno’s pain. We conclude that the most plausible explanation for Mrs. Zeno’s pain is not that Dr. Bleich was negligent in performing her operation, and the existence of her pain does not trigger the application of the doctrine of res ipsa loquitur.

At one point in their brief plaintiffs seem to state that they are not contending that pain is a fact suggesting the negligence of Dr. Bleich, but rather they are contending the injury complained of which suggests the negligence of Dr. Bleich is “trauma inside the anal canal.” The only trauma inside the anal canal which was .established was the intentional surgery which was essential to the treatment of Mrs. Zeno’s rectum and this certainly cannot be categorized as a “fact shown which suggests the negligence of the defendant (Dr. Bleich) as the most plausible explanation of the injury.”

Plaintiffs strongly contend that as result of the operation Mrs. Zeno suffers from fecal incontinence and that this is a fact “shown which suggests the negligence of defendant (Dr. Bleich) as the most plausible explanation of the injury.” The term incontinence is defined as “inability to control excretory functions” and Mrs. Zeno testified that she had absence of control of her excretory functions to the extent that she soiled her underclothes. She stated that she did not soil her bed, and gave no indication that her condition was severe enough to soil her outer garments. The fact that she was seen by Dr. Roncal twenty-five times subsequent to November 1977, and that he had never seen any evidence of her incontinence, strongly suggests that her problem was not a serious one, and it is abundantly clear that she does not suffer from total incontinence. The explanation for her degree of incontinence is that the external sphincter, which plays a small part in the control of fecal excretion, was seriously damaged by the long period of rectal infection which created scar tissue on the sphincter which had to be removed at the time of surgery. Dr. Bleich hoped that the sphincter tone would improve following surgery, but the evidence established that it remains mildly relaxed. This injury to the external sphincter by the infection and the corrective surgery is the most plausible explanation of Mrs. Zeno’s mild incontinence. Neither the existence of Mrs. Zeno’s pain nor her incontinence justifies the application of the doctrine of res ipsa loquitur. These circumstances establish only that Mrs. Zeno failed to obtain a completely satisfactory result from her surgery and McCann, supra, stated this alone would not justify the application of res ipsa loquitur. The court there said:

“In so holding, we in no way sanction the application of res ipsa loquitur to malpractice cases involving no more than a failure to obtain the satisfactory results from surgery or medical treatment. We limit our holding to untoward or unusual occurrences during the time of medical supervision.” Id. 276 So.2d at 262.

Plaintiffs offered no evidence to sustain their burden of proof as required by LSA— R.S. 9:2794(A), but they contend that even though they failed to meet the burden of proof required to establish their malpractice action under this statute, they are still entitled to recover because Mrs. Zeno failed to give her informed consent to the surgery. The thrust of this contention is that Dr. Bleich failed to advise Mrs. Zeno that she could have continued pain and fecal incontinence following the surgery. The record contains a consent form signed by Mrs. Zeno wherein she consented to the operation acknowledging she had been advised of the risks involved in the surgery and possible complications resulting from it. Mrs. Zeno denied that she was advised of the possibility of continued pain or incontinence following the operation. Dr. Bleich’s testimony is generally to the effect that he advised Mrs. Zeno of the nature of the surgery, but it does not contain a positive statement by him that he advised her of the possibility that she could have pain and incontinence following the surgery.

In the case of Percle v. St. Paul Fire & Marine Ins. Co., 349 So.2d 1289 (La.App. 1st Cir. 1977), the court recognized that a surgeon will be liable to his patient if he obtains his consent to surgery without revealing the risk of the surgery if a prudent person in the patient’s position would have decided to decline the surgery upon being advised of complications that could result from this surgery. The court there stated the law to be:

“We consider as sound Appellant’s argument that the duty to disclose should be governed by the legal standard of negligence which includes an objective test in establishing causation, meaning what a prudent person in plaintiff’s position would have decided if adequately informed.” Id. at p. 1300.

Perele quoted with approval the following rationale from Cantebury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772 (1972):

“Better it is, we believe, to resolve the causality issue on an objective basis: in terms of what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance. If adequate disclosure could reasonably be expected to have caused that person to decline the treatment because of the revelation of the kind of risk of danger that resulted in harm, causation is shown, but otherwise not.” Id., 349 So.2d at 1301.

Assuming that Dr. Bleich failed to advise Mrs. Zeno that she could have pain after her surgery because nerves that would be cut during surgery might become imbedded in scar tissue, and that she might have some incontinence because of necessary surgical damage to the external sphincter, is the consent obtained defective? Perele makes it clear that Mrs. Zeno’s consent to the surgery is still good if a prudent person having been advised of these risks would have consented to the surgery. In this case because surgery was essential to avoid the possibility that the fistula would cause septicemia or cancer if it were not removed, a prudent person would have consented to the surgery upon being advised of these risks. We conclude that there was no defect in the consent given by Mrs. Zeno for the surgery and plaintiffs cannot assert a cause of action based upon lack of consent.

Having found that Mrs. Zeno consented to the surgery, that res ipsa loquitur is inapplicable to the facts, and that plaintiffs failed to establish that Dr. Bleich did not possess all the skill of his medical specialty of general surgery and that he did not apply his skill with care and good judgment in the operation he performed on Mrs. Zeno, we find the judgment should be affirmed. It is unnecessary for us to discuss appellants’ assignment of error that the trial judge incorrectly concluded that appellants’ failure to call Dr. A. E. McKeithen as a witness created a presumption that he would have testified against her.

AFFIRMED at appellants’ cost.

      . We have omitted the supreme court footnote wherein the statute discussed was quoted in its entirety.


text:
    Neva R. ROBINETT, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 14643.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.
    B. J. Woods, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Ben Marshall, Jr., Shreveport, for defendant-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

This is an action to recover the costs for surgery performed by a dentist under a health insurance policy, and statutory penalties for its denial. The trial court granted defendant’s motion for summary judgment, and plaintiff appeals. We reverse and remand.

The only issue before us is whether the granting of the summary judgment was correct. That depends on the existence of two requirements: (1) that there be no genuine issue of material fact, and (2) that defendant be entitled to judgment as a matter of law.

Plaintiff, Neva R. Robinett, was an employee of WKM Wellhead Systems, Inc. As an employee of WKM plaintiff was entitled to the benefits of the group medical benefit plan issued by defendant, Metropolitan Life Insurance Company, to WKM.

The Group Master Policy contains the following language:

“Exceptions — Expenses incurred for any of the following shall in no event be considered Covered Medical Expenses:
* # * * * *
(b) Dental services of any kind, except that expenses for such services required for correction of damage caused by accidental injury sustained by the employee or dependent while insurance is in force on his account and expenses for hospital room and board and other special hospital services while the employee or dependent is a registered bed patient, shall not be excluded provided such expenses otherwise qualify as covered medical expenses.”

Similar provisions are contained in the Group Insured Certificate and Booklet issued to each employee.

Plaintiff had a deformity of the upper jaw which precluded her bringing her upper and lower teeth together in a normal manner. This condition is called a malocclusion. Due to this genetic deformity only a few of plaintiff’s rear teeth could come in contact. This placed unusual stress on plaintiff’s mandibular joints causing damage to the joints and pain to plaintiff.

Plaintiff sought treatment to relieve the pain from Dr. Jack W. Gamble, a dentist. Dr. Gamble is an Oral and Maxillo-Facial Surgeon, which is a specialty in dentistry. Dr. Gamble initially treated plaintiff by extracting several wisdom teeth. This measure did not relieve the stress on plaintiff’s mandibular joints, and she returned to Dr. Gamble still experiencing pain.

At this time Dr. Gamble explained to plaintiff that if the improper relationship between her jaws was not corrected her mandibular joints would continue to be damaged and would eventually require surgery. Dr. Gamble also made it clear that such surgery would be pointless unless the relationship of the jaws was corrected first, because otherwise the damage to the joints would recur due to the continued stress from the malocclusion.

The procedure to correct the relationship of the jaws was performed by Dr. Gamble. The operation involved repositioning of plaintiff’s maxilla, the bone holding the upper teeth. This procedure was apparently sufficient to relieve plaintiff’s pain and no surgery was performed on her mandibular joints.

The motion for summary judgment should be granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979). Both of these requirements must exist before the motion for summary judgment may be properly granted.

We agree with the trial court that there is no genuine issue of material fact. However, we cannot say that reasonable minds must inevitably conclude that defendant-mover is entitled to judgment as a matter of law. Therefore, summary judgment for the defendant was improper. Chaisson, supra.

Defendant bases its assertion that the services rendered by Dr. Gamble are “dental services” and therefore excluded from coverage on the following testimony of Dr. Gamble in his deposition:

“Q. Doctor, would I be correct in saying that you specialize in dental services?
A. Yes.
Q. You perform exclusively dental work?
A. Yes. That does not mean that other people that are outside dentistry don’t perform some of the surgery I perform. Plastic surgeons ...”

Dr. Gamble testified, in effect, that, if he did it, it must be dental work. However, Dr. Gamble candidly states that there is an area of overlap between his work and the work of persons who are not dentists. Thus, Dr. Gamble performs some procedures which might be performed by a medical doctor. Such a medical doctor testifying under the same theory that Dr. Gamble relates would testify that, if he did it, it must be medicine. This illustrates the weakness in relying on Dr. Gamble’s testimony alone to determine whether the procedure was “dental services.” The defendant cites no case with a holding which supports Dr. Gamble’s view.

We have found several cases dealing with similar procedures or policy language.

In Davey v. Louisiana Health Serv. & Indem. Co., 357 So.2d 1170 (La.App. 4th Cir. 1978), the court found there was coverage for a procedure involving the surgical fracturing and resetting of both the maxilla and mandíbula. This surgery was performed by a dentist with the assistance of an orthopedic surgeon who removed material from plaintiff’s hip for a bone graft. This policy excluded coverage for dental care and treatment, dental surgery, or dental appliances unless they were necessary because of an accident.

The Davey trial court found for plaintiff on grounds that the surgery could have been performed by a medical doctor instead of a dentist. The court of appeals affirmed, but on a different basis. The court of appeal found that, in light of the applicable statute, the certificate issued to plaintiff could reasonably lead her to believe the procedure was covered by her insurance.

In Reynolds v. Aetna Casualty & Surety Company, 192 So.2d 625 (La.App.2d Cir. 1966), this circuit found coverage in a case involving the treatment of conditions including a protruding mandíbula which had caused a severe malocclusion. The policy in question in Reynolds expressly covered surgical correction of a protruding mandible. The treatment was rendered by a dentist and included the removal of three impacted teeth. The insurer contended that the treatment amounted to ordinary dentistry and was therefore excluded from coverage under a dental exclusion provision of the policy. In spite of the fact that the treatment was rendered by a dentist this court found that it was within the coverage of surgical correction.

The two cases which are most helpful to us in the present controversy came from outside this jurisdiction.

The Supreme Court of Vermont addressed a problem similar to the one here presented in Simpson v. State Mutual Life Assurance Company of America, 382 A.2d 198 (Vt.1977). In Simpson the plaintiff visited a doctor of medicine complaining of loss of hearing, earaches, and cracking and popping in her jaw joint. Her condition was diagnosed as temporomandibular joint syndrome caused by uneven tension in the jaw muscles. Plaintiff was referred to a dentist for treatment. The dentist treated plaintiff’s condition by repositioning plaintiff’s jaw by means of medication and installation of oral prosthetic devices. Plaintiff filed a claim for the cost of this treatment which was rejected by the insurer on the basis of a policy exclusion of expenses for dental care or treatment. The court determined that the exclusion’s language was ambiguous. It then held that the work done on plaintiff’s jaw was not within the exclusion of dental care or treatment expenses and was therefore covered.

Finally, we consider the case of Blue Shield of Florida v. Woodlief, 359 So.2d 883 (Fla.App. 1st Dist. 1978). In Blue Shield the insured had certain dental surgery, including the extraction of three teeth and a mandibular alveoplasty done by a dentist. The insured filed a claim for the cost of the work which the insurer rejected on the basis of a policy exclusion of coverage for dental services.

The Florida court found the meaning of dental services uncertain and determined that it should include only “health care services performed directly on the teeth.” Thus the fees for the extractions were within the exclusions, but the fees for diagnosis and removal or treatment of diseased tissue and bone were covered expenses.

None of the mentioned cases are on all-fours with the present case. However, Simpson dealt with a similar complaint, problems with the mandibular joint, and a treatment similar in effect, if not procedure, repositioning a jaw but not by surgical fracture. Blue Shield dealt with the same words, dental services, as used in this exclusion. Under the results of both cases there would have been coverage for the treatment rendered in this case. We find no Louisiana case except dicta in Davey, supra, which we decline to follow for purposes of summary judgment, that compels a contrary result. Indeed, in the Louisiana cases there has been coverage, though based on facts not greatly like the ones present in this case.

We are impressed by the fact that the repositioning of plaintiff’s maxilla and correction of her malocclusion was not an end in itself. The purpose of this treatment was to relieve the pain from plaintiff’s mandibular joint, rather than to correct plaintiff’s dental problems. That the malocclusion was corrected was only a happy effect of the course of treatment to end the pain in the mandibular joints rather than the cause of it.

In light of the above discussed cases, facts, and testimony, we cannot say that reasonable minds must inevitably conclude that, as a matter of law, the procedures performed on plaintiff were “dental services” and therefore excluded from coverage under the policy. Thus, one of the two requirements for granting a motion for summary judgment was absent and the defendant’s motion should have been denied.

The judgment is reversed and the case remanded for further proceedings. All costs of this appeal are assessed against appellee.

REVERSED and REMANDED.

      . We emphasize that we do not decide whether the procedures are actually within the coverage of the policy. We only decide that reasonable minds would not inevitably conclude that the expenses sued for were not covered by the policy.


author: REDMANN, Judge.

text:
    Rachel W. PINNACE v. Baron FRANCINGUES et al.
    No. 12154.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 1981.
    Murray, Murray, Ellis, Braden & Landry, Romualdo Gonzalez and Kern A. Reese, New Orleans, for plaintiff-appellant.
    Borrello & Huber, Victor A. Dubuclet, III, Metairie, for Baron Francingues and Liberty Mut. Ins. Co.
    Floyd F. Greene, New Orleans, for New Orleans Public Service, Inc.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Plaintiff appeals from an award of $1,310.75, complaining of the trial judge’s limiting the general damages award to $500 because no physician corroborated plaintiff’s testimony of her minor injury. Neither defendant appeals or answers plaintiff’s appeal. The question is whether the trial judge erred in refusing a continuance when plaintiff’s sole intended medical witness, subpoenaed 13 days before the trial, did not appear. We answer yes and remand.

This is not a case of the doctor’s testimony being immaterial, as a trial judge might have viewed it in the light of plaintiff’s own description of her “fried egg over easy” swelling in her back. The trial judge’s express reasoning affirms that, in his mind, the doctor was a “material witness” within La.C.C.P. 1602: the judge did not “feel that her injuries as she described alone without corroboration justified an award for the usual kind of award in this kind of case.”

The wording of C.C.P. 1602 is mandatory, McCaleb v. Department Pub. Safety, 309 So.2d 748 (La.App. 4 Cir. 1975), requiring that

A continuance shall be granted if at the time a case is to be tried, the party . . . shows . . . that a material witness has absented himself without the contrivance of the party applying for the continuance.

Here the trial judge noted the presence in the record of the return on the subpoena showing service on the doctor through his secretary as authorized by C.C.P. 1236. The trial judge denied the continuance, stating, “You have the option, of course, of holding him [the doctor] in contempt of court or issuing an instanter subpoena for him, and if you wish at a later date to bring him in for contempt, I will hold him in contempt .... I find that a physician ... who ignores a subpoena does so at his own peril.”

To deny the continuance to the litigant patient, however, was to hold that the physician ignores a subpoena at the litigant’s peril rather than at the physician’s own peril. The settlement of citizens’ disputes in the court rather than in the streets depends in essential part upon society’s affording effective measures to compel the attendance of witnesses in behalf of the litigants. When a witness subpoenaed to attend a court hearing does not obey that subpoena, due process of law, La.Const. art. 1 §§ 2 and 22 and U.S.Const. amend. 14 § 1, requires that the court exert its powers in behalf of the disadvantaged litigant to obtain compliance with its subpoena, unless the court finds some circumstance such as that the witness’s proposed testimony is not material to the dispute or that the subpoenaing litigant has conspired to obtain disobedience of the subpoena — both possibilities treated by La.C.C.P. 1602. In the absence of some such circumstance, the court may not merely decide the litigation as if the litigant had not attempted to produce further, material testimony. Differing circumstances may require differing solutions to. the litigant’s problem, but in our circumstances of a local physician’s failing to appear, the motion for a continuance should have been granted, to allow the physician to testify in person or by deposition.

The judgment appealed from is therefore set aside insofar as it fixed the general damages and the matter is remanded for further proceedings not inconsistent with this opinion.

      . Plaintiffs motion for a new trial shows (for the first time in the record) that the doctor did not appear because of a misunderstood message from plaintiffs lawyer relating to another case. This may have been negligence attributable to plaintiffs lawyer, but not “contrivance” within C.C.P. 1602. In any case, at the time of the ruling here complained of, the record shows only that a subpoenaed material witness absented himself without contrivance by plaintiff.


author: SCHOTT, Judge.

text:
    Irvin B. BATISTE v. BOH BROTHERS CONSTRUCTION COMPANY, INC.
    No. 12449.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1981.

      William L. Von Hoene, New Orleans, for plaintiff-appellee.
    John W. Waters, Jr., Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Defendant has appealed from a judgment awarding plaintiff $687.32 for damages to his automobile by an unattended run-away bulldozer owned by defendant. The only issue is whether the defendant is liable for the damage done by its machine after some boys started it and jumped off leaving it running.

Plaintiff did not see the incident but discovered the bulldozer against his car when he returned home. One witness testified that she saw some young boys playing on the bulldozer “and the next thing I seen was the machine running,” and the boys jumped off. The unattended machine ran into plaintiff’s automobile and was ultimately stopped by a neighbor. Another witness testified that she saw the bulldozer near plaintiff’s car and the neighbor jump on the machine to stop it. She also testified that two or three weeks before this incident a similar incident had occurred when “kids” started one up. She “could not say it was the same bulldozer but it was in the same area.”

Defendant produced one of its employees who was called to the site after the incident occurred. Upon checking the machine he found “where they had hot wired the master disconnect switch; they had wrapped copper wire around it to make the connection .... they had also torn off the dashboard panel where the starter switch was. They had to pry it off with a crowbar or something! They had to hot wire it.” He further explained that the dash board housing the switch had to be pried open because it was held with hooks underneath the dash board with a lock which was still in place after the incident and because the dash board was a steel panel, something like a crowbar had to be used. However, on cross examination this witness testified that the regular bulldozer driver assigned to this machine was still employed by the company, and the following questions and answers were elicited:

“Question. You had also told me that you had asked him if he had hot wired it to see if he had lost his key.
Answer. That is correct.
Question. So, to your knowledge it could have easily have been hot wired by Mr. Secenalli on the jobsite?
Answer. That is correct.”

This witness also acknowledged that they had problems with vandalism of their machines but not starting the machine up as in this case.

The trial judge made the statement from the bench at the conclusion of the trial that “it was some kids who fiddled with the bulldozer and caused it to start" and that defendant was liable under the doctrine of attractive nuisance.

We affirm the judgment of the trial court but not for the reasons he expressed. The attractive nuisance doctrine is applicable in favor of a young plaintiff who suffers damages and who is not barred by contributory negligence or assumption of the risk considering his tender age and/or his inability to understand and avoid a danger. Richards v. Marlow, 347 So.2d 281 (La.App. 2nd Cir. 1977). In order to apply the doctrine there must be evidence concerning the child’s age and understanding. Even if the doctrine were applicable in the instant case there is no evidence to show the ages or the intelligence and understanding of the boys who started the machine.

This case must be considered in the light of the Supreme Court’s application of C.C. Art. 2317 in Loescher v. Parr, 324 So.2d 441 (La.1975) and its progeny, including Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Defendant as custodian of the bulldozer would be responsible for the damage to plaintiff’s car unless it could prove that the harm was caused by the fault of the victim, the fault of a third person, or an irresistable force. The question is whether defendant carried its burden of proof in this case.

There was an inference that defendant’s own employee had allowed the bulldozer to be in a condition where it could be started, and there was testimony that a similar incident had happened previously. Defendant did not produce the bulldozer driver who last used the machine in its behalf even though that driver was still employed by the company.

Defendant relies on Tabary v. New Orleans Public Service, Inc., 142 So. 800 (La.App.Orl.1932) but that case is distinguishable. The court held that it is not the duty of the owner of a tractor to make it impossible for anyone to tamper with it but “it is only the naturally to be expected acts and results against which he must guard, and it is not to be expected that a person old and large enough to be successful in his efforts to start such a machine will be so meddlesome as to attempt to do so.” In the instant case there was evidence of a previous similar incident and on inference that the machine was started with relative ease. Considering the greater danger involved in leaving a machine such as this in a situation where it could be started and cause damage, we conclude that defendant did not carry its burden of proof to show that the damage to plaintiff’s property was the fault of a third party such as to relieve it of responsibility.

Finally, defendants rely on the principle that leaving the ignition keys in an unattended automobile does not of itself constitute negligence on the part of the owner, such as to make the owner liable for damage to plaintiff resulting from the negligence of a third party who uses the vehicle, most recently applied in the case of Decastro v. Boylan, 367 So.2d 83 (La.App. 4th Cir. 1979). However, the principle has been applied in cases where the automobile was driven away and the injury occurred at some point remote to where the vehicle was left and because of the immediate negligence of the driver. Our case is analogous to the situation where the owner might start his automobile and leave it running while he goes inside his house for a few minutes. In the meantime a child gets into the automobile, flips the transmission into gear, and is unable to stop the vehicle which causes damage to a plaintiff. It seems that the owner would be liable in such a case.

It is logical to infer that the boys who were playing on the bulldozer started it with ease and were unable to control it. Defendant’s liability arises from the breach of its duty to secure the machine and prevent it from causing damage under circumstances where it was foreseeable that unauthorized persons might tamper with the machine.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Dale M. ERDEY v. The AMERICAN HONDA COMPANY, et al.
    No. 14807.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 1, 1981.
    Paul H. Due, Baton Rouge, for plaintiff.
    Donald Phelps, Baton Rouge, for defendants.
    Before COVINGTON, COLE and WATKINS, JJ.
   ON MOTION TO DISMISS

COVINGTON, Judge.

This matter comes on motion of Dale M. Erdey, plaintiff-appellee, to dismiss the appeal taken by defendants-appellants.

In this action, Dr. Allen Jackson-Dr. Richard L. Bolton, Ltd., a Professional Corporation; Allen Jackson, M.D.; and St. Paul Fire and Marine Insurance Company have been made defendants in a lawsuit filed in Livingston Parish, Louisiana, with the claim being made that Dr. Jackson committed medical malpractice in his treatment of plaintiff, Dale M. Erdey. Dr. Jackson filed declinatory and dilatory exceptions urging improper venue and improper cumulation of actions, and a judgment was signed on May 8,1981, denying those exceptions. From that judgment, the defendants have perfected this appeal. The plaintiff has filed a motion to dismiss the appeal, and has asked for assessment of damages, contending that the appeal is frivolous.

Code of Civil Procedure Article 2083 provides that an appeal may be taken “from an interlocutory judgment which may cause irreparable injury.” In Comment (a) under Article 2083 it is stated:

“. .. However, the right to appeal certain interlocutory judgments, where irreparable injury would otherwise result, is retained in this Code.
“... No attempt has been made to codify the jurisprudence in which interlocutory judgments have a final effect or may cause irreparable injury, since the jurisprudence has been largely a case by case process, rather than the development of a basic general rule.”

The Louisiana Supreme Court has rendered a decision in Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981), which declares that irreparable injury may result from the erroneous denial of an exception to the venue. In Footnote 1 the Supreme Court stated:

“To reason that there is no irreparable injury is to decide that relator has no right to appeal under C.C.P. art. 2083. (In that context irreparable injury occurs if any error in the ruling cannot as a practical matter be corrected on appeal. For example, once the trial court overrules an exception to the venue and the case is tried on the merits in the wrong venue, an appellate court has no practical means of correcting the error on appeal.)" [Emphasis added].

The Herlitz case clearly indicates that an appeal from a judgment overruling an exception to the venue is one which the appellate courts should consider. In Her-litz, the Supreme Court recognized that the erroneous overruling of an exception to the venue by the trial court creates a situation in which irreparable injury occurs to the defendant because nothing can be done on appeal to correct that error. If the trial court was in error in failing to sustain the exception to the venue in this case, there is nothing this court could do on appeal to correct that error after trial on the merits. If this court does not review the issue of venue now (and the case is then tried on its merits), the defendants’ right to have the suit tried in a proper venue will be, for all practical purposes, effectually defeated.

For these reasons, the motion to dismiss is denied at mover’s costs.

MOTION DENIED.

      . In the motion Erdey also asks for damages for frivolous appeal, but such request cannot be considered by this court since the plaintiff has neither appealed nor answered the appeal of the defendants. See Meyers, Whitty & Hodge, Inc. v. Popich Marine Construction, Inc., 143 So.2d 739 (La.App. 4 Cir. 1962).

      . In the case of Glazer Steel Corporation v. Larose Shipyard, Inc., 368 So.2d 205 (La.App. 1 Cir. 1978), this court found irreparable injury in the granting of exception of improper venue and transference to another parish under the circumstances of that case. (Emphasis added.)


author: WATKINS, Judge. COLE, J.,

text:
    Calvin Eugene IRVINE, et al. v. SENTRY INSURANCE COMPANY.
    No. 14812.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 1, 1981.

      John N. Gallaspy, Bogalusa, for plaintiff.
    Edward L. Levert, Jr., New Orleans, for defendant.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a suit for workmen’s compensation benefits which is on suspensive appeal by defendant from a judgment in favor of plaintiffs. Plaintiffs have filed a motion to dismiss, which we herein deny.

The grounds set forth for the motion to dismiss are (1) that the appeal bond is improper, having been made in favor of the wrong clerk of court and stating the case is on appeal from the wrong judicial district and (2) that the order of appeal is to the wrong circuit.

As to the first contention, we see the appeal bond is in favor of Richard J. Ganu-cheau, Clerk of the Civil District Court, Parish of Orleans, when the case is in fact on appeal from the Twenty-Second Judicial District Court, Parish of Washington. Furthermore, the bond incorrectly states the case was originally decided in the Twenty-Ninth Judicial District Court, rather than the Twenty-Second Judicial District Court.

Under. LSA-C.C.P. art. 2088(5) the trial court retains jurisdiction to test the form, substance, and sufficiency of the appeal bond. Plaintiffs made no effort to test the form and substance of the bond in the trial court. Rather, they attacked the form and sufficiency of the bond in this court through a motion to dismiss.

It is well established that the court considering a case on appeal is without jurisdiction to consider the form, substance, or sufficiency of an appeal bond. Dolhonde v. Dolhonde, 345 So.2d 596 (La.App. 1st Cir. 1977); Tufaro v. Methodist Hospital, Inc., 365 So.2d 619 (La.App. 4th Cir. 1978); Viccinelli v. Causey, 394 So.2d 1309 (La.App. 1st Cir. 1981).

We are, thus, without jurisdiction to consider the errors in the appeal bond or to order the bond corrected. We are cognizant of this state’s Supreme Court’s decision in Guilliot v. City of Kenner, 326 So.2d 359 (La. 1976). However, unlike Guilliot, where the court found that there was no bond at all, in the present case the defect is one that falls into the categories of defects of form or substances, or both. Thus, the defect is one that this court is without jurisdiction to test or correct.

Furthermore, the effect of a trial court’s finding the bond insufficient or invalid is that the party furnishing the bond is given four days to correct the bond, or an unlimited time, if no rule is filed testing the bond. LSA-C.C.P. art. 5124. And an appeal may be dismissed on the ground a bond is insufficient or invalid only if the party furnishing the bond is afforded an opportunity to furnish a new or supplemental bond. LSA-C.C.P. art. 5125. Thus, not only does this court lack jurisdiction to entertain a proceeding testing the bond, but in all probability, had the bond been properly tested in the trial court, a corrected bond would have been substituted, as we are informed in appellant’s brief that an effort is being made to correct the bond.

As to the second alleged ground for dismissal, we see the order of appeal stated the appeal was to the Fourth Circuit Court of Appeal, when it was to this circuit. That error we view as purely a ministerial or typographical error, and of no moment, as this court has jurisdiction of civil appeals from Washington Parish. As this court has jurisdiction, only this Circuit, not the Fourth Circuit, can consider the appeal. As this court can consider the appeal, the appeal will not be dismissed because of a minor error in the preparation of the pleadings, which is obviously only a technical defect.

Accordingly, the motion to dismiss is denied.

MOTION TO DISMISS DENIED.

COLE, J.,

dissenting.

I believe the bond in this instance is so lacking it, in effect, constitutes no bond at all. See Guilliot.