text:
    Beth Williams STOUGH, et al., Plaintiff-Appellants, v. 501 RANCH, INC., et al., Defendant-Appellees.
    No. 15004.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.

      Davis & Davis by Jackson B. Davis, Shreveport, for plaintiffs-appellants.
    Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for defendants-ap-pellees, Helen W. Norris, Robert Williams, James C. Williams, III, 501 Ranch, Inc., & Mrs. J.C. Williams, Jr.
    Pharis & Pharis by F. Jean Pharis, Alexandria, for defendant-appellee, Gloria W. Hearn.
    Gordon O. Bartage, Shreveport, for defendants-appellees, John M. Williams & Mary W. Ziegler.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

This is an action to enjoin the transfer of stock, the payment of dividends on those shares upon which the transfer is opposed, and the payment by the corporation of legal fees and other expenses incurred by those seeking the transfer. Plaintiffs alternatively seek a judgment transferring the contested shares back to their original owner. The district judge rejected plaintiffs’ demands and they appeal. We affirm.

Plaintiffs, Beth W. Stough, Margaret W. Grooms, Carolyn W. Wheat and Gladys W. McKee, are sisters and stockholders in 501 Ranch, Inc., a closely held family corporation. Plaintiff, Norma Williams, is the succession representative of Marcus Clyde Williams who was a 501 stockholder and a brother of the other plaintiffs.

The defendants are 501 Ranch, Inc., John Monroe Williams, Robert Williams, Gloria W. Hearn, Helen W. Norris, Mary W. Ziegler, James C. Williams, III, and Mrs. J.C. Williams. James C. Williams, III, is sued individually and in his capacity as liquidator of 501. Mrs. J.C. Williams is the widow of the incorporator and the mother of the individual defendants, the deceased, Marcus Clyde Williams, and plaintiffs Stough, Grooms, Wheat and McKee. Mrs. Williams is the only individual defendant who was not a record stockholder in 501.

This case "revolves around sales by John Monroe Williams of his stock to defendants Hearn and Norris. We will begin by considering the validity of those transactions.

The facts were stipulated and are set out below.

The 501 Ranch, Inc., was incorporated by J.C. Williams on March 29, 1974. Williams’ purpose in forming the corporation was to try to insure that his land would be held undivided as a unit after his death for as long as possible.

The articles of incorporation of 501 established certain stock transfer restrictions. Article XII provides that no shares may be transferred unless the shareholder desiring to dispose of his stock first offers it to the board of directors for the benefit of the remaining shareholders. Article VI provides that the articles of incorporation may be amended by a majority vote of the shareholders.

J.C. Williams donated 500 shares of stock per year to each of his eleven children in 1974, 1975 and 1976.

In October, 1974, J.C. Williams, 501 Ranch, Inc., and the eleven Williams children entered into a “Reciprocal Stock Sale and Purchase Agreement.” This agreement granted a right of first refusal to the other parties to the agreement before any sale of stock could be made. John Monroe Williams, Helen Norris and Gloria Hearn were all parties to the agreement.

In January, 1975, John Monroe Williams sold 1,000 shares of his stock in the corporation to Helen Norris. In May, 1976, John Monroe Williams sold 500 shares to Gloria Hearn. The stock sales did not comply with the transfer restrictions in the articles or the shareholder’s agreement.

On February 18, 1978, a stockholders meeting was held. Present were eight shareholders including appellants. Two other shareholders were represented by proxy. The shareholders present or represented by proxy held 15,000 of the 27,500 outstanding shares of the corporation. A motion that the stock sales to Norris and Hearn be recognized and accepted was “passed by all present” according to the minutes.

The directors of 501 met on October 14, 1978. The board was composed of the eleven Williams children. Because Mrs. J.C. Williams had expressed disapproval of the stockholders action of February 18, the board voted six to five to rescind approval of the transfer.

On May 1, 1980, a stockholder’s meeting was held. This was the first stockholders meeting held since February 18, 1978. At this meeting by a vote of 26,000 shares to 0 the minutes of the February 18,1978, meeting were approved. The shareholders also voted to reimburse Norris and Hearn for legal fees and other expenses incurred because of the controversy over the stock purchases.

The plaintiffs brought this action on April 29,1981, their demands were rejected and they took this appeal.

Appellants did not make any formal assignments of error and, thus, it is somewhat difficult to discern the substance of their complaints. Apparently they contend that the district judge based his decision on erroneous factual conclusions. These alleged erroneous conclusions are: (1) that the in-corporator knew and approved of the sales and (2) that the vote to ratify was unanimous.

With respect to the first of the questioned conclusions we note paragraph 11 of the stipulated facts. There it is stipulated that John Monroe Williams offered to sell his stock to J.C. Williams. This strongly supports the conclusion that the incorporator knew of the sales. It does not appear from the record that J.C. Williams, the in-corporator, ever questioned the sales to Norris and Hearn and that supports the conclusion that he approved of them. However, we note that whether or not the incor-porator approved the sales is irrelevant to the issue of their validity.

Though the district judge was mistaken in his belief that the incorporator had attended the February 18,1978, meeting, that mistake does not vitiate his other findings.

Appellants stoutly contend that the ratification vote was not, as the district judge found, unanimous. This contention is based on the wording of the minutes that the motion was “passed by all present.” Appellants argue that this actually means that the motion passed by a narrow margin on a divided vote.

Appellants’ contention is nothing more than an exercise in strained semantics and is not supported by the record. A fair reading of the minutes of the February 18, 1978, meeting leads to the conclusion that the motion was adopted without dissent by a vote of at least 15,000 to 0. At the next shareholders meeting on May 1, 1980, the minutes of the February, 1978, meeting were approved by a vote of 26,000 to 0.

Stock transfer restrictions of the type imposed by the articles and shareholders agreement here are valid. Phillips v. Newland, 166 So.2d 357 (La.App. 3d Cir.1964), writ refused, 246 La. 872, 167 So.2d 679 (1964); Avoyelles Trust & Sav. Bank v. Liliedahl, 348 So.2d 153 (La.App. 3d Cir.1977); LSA-R.S. 12:24 C(4); LSA-R.S. 12:29 A. The sales by John Monroe Williams did not comply with restrictions in either the articles or the agreement. Thus, the sales are invalid unless validated by subsequent corporate action.

The restrictions imposed by both the articles and the agreement are subject to modification or amendment by a vote of the shareholders. LSA-R.S. 12:31; LSA-R.S. 12:29. Section B of 12:31 provides “... an amendment altering the articles may be adopted by two-thirds of the voting power present, or by such larger or smaller vote (not less than a majority of the voting power present) as the articles may require ...” Section A of 12:29 provides that shareholders agreements “... may be terminated or modified ... by the vote which would be required for adoption of an amendment to the articles.” The provisions of Article VI of 501’s articles require only a majority vote of the shareholders to amend the articles.

The February 18, 1978, vote of 15,-000 to 0 to approve the invalid Norris and Hearn stock acquisitions represents a ratification by a majority of the outstanding shares of the corporation. We find that vote sufficient to amend and modify the restrictions in both the articles and the agreement and for these reasons the vote ratified and validated the stock sales by John Monroe Williams to Helen Norris and Gloria Hearn. The approval of the minutes of the February 18 stockholders meeting at the May 1, 1980, stockholders meeting by a vote of 26,000 to 0 and the passage of the resolution at this meeting by 27,000 to 0 directing the payment to Norris and Hearn of all expenses incurred to secure the transfer to them of the stock purchased from John Monroe Williams further supports the conclusion that this stock transaction was fully ratified by a majority of the stockholders at the February 18, 1978, meeting.

Appellants have suggested that the notice of the meeting of February 18,1978, did not include ratification of the transfers as a subject of the meeting. However, this is of no avail because a shareholder who has participated in and voted at a meeting cannot complain of defects in the notice. Wisner v. Delhi Land & Imp. Co., 46 La.Ann. 1223, 15 So. 690 (1894).

Appellants also complain of the district judge’s failure to enjoin the corporation from paying the expenses incurred by Norris and Hearn.

The party seeking the injunction bears the burden of proving his right to injunc-tive relief. Olsen v. City of Baton Rouge, 247 So.2d 889 (La.App. 1st Cir.1971), writ denied, 259 La. 755, 252 So.2d 454 (1971).

The action sought to be enjoined is an alleged improper expenditure of money. The damage occasioned by this action would be ascertainable by pecuniary standards and compensable by money damages. Therefore, there would be no irreparable loss or injury, Musser v. Mercy Academy 389 So.2d 76 (La.App. 4th Cir.1980), which is a prerequisite to injunctive relief. State Board of Ed. v. National Collegiate Ath. Assn., 273 So.2d 912 (La.App. 3d Cir.1973); Wooten v. Null, 292 So.2d 883 (La.App. 2d Cir.1974).

Though we have concluded that the stock sales by John Monroe Williams to Norris and Hearn are valid we are not here required to determine what obligation the corporation has, if any, to reimburse Norris and Hearn for their expenses incurred to have the corporation recognize their stock acquisitions. The only issue presented is appellant’s right to an injunction to prohibit the corporate officials and/or liquidator from paying these expenses and because appellants have failed to establish irreparable harm they are not entitled to the injunction.

Appellants’ proper course of action with respect to any improper payments from corporate funds is an action for damages against the corporate officers and/or liquidator. LSA-R.S. 12:91; LSA-R.S. 12:145(G).

FOR THE FOREGOING REASONS THE JUDGMENT IS AFFIRMED AT APPELLANTS’ COSTS.

      . We have previously overruled a motion to dismiss this appeal made by appellees.

      . This appeal was taken by plaintiffs Stough, Wheat and Grooms, only.

      . At a board of director’s meeting held on April 1, 1979, by a vote of six to four the board of directors instructed the officers of 501 to take the necessary action to transfer the stock to Gloria Hearn, which she had purchased from John. The stock which Helen Norris had purchased from John had been transferred to her on the corporate books in February, 1975, and April, 1976. The stock transfer to Hearn directed by the board’s resolution of April 11, 1979, was made on October 3, 1980, by J.C. Williams, III, in his capacity as liquidator of the corporation.

      . The incorporator, J.C. Williams, had died a few months before the meeting.

      . Appellees contend that the 11,000 shares of J.C. Williams were also voted in favor of the motion by the co-administrators of his estate, Robert and Clyde Williams. However, the minutes contain no indication that Robert and Clyde were acting in their representative capacities at the meeting.

      . The only time the February, 1978, vote was questioned was at the October, 1978, directors meeting. The directors voted 6 to 5 to rescind the vote of February, 1978, and also declined to approve the “minutes of the prior meeting.” The action of the board of directors in October, 1978, cannot affect the validity of the stockholder’s ratification at the February meeting.

      . LSA-R.S. 12:24 C(4): “C. The articles may also contain the following: ... (4) Any other provisions for the regulation of the business and the conduct of the affairs of the corporation not prohibited by this Chapter or other laws of this state, including, without limitation of the generality of the foregoing phrase, any provisions restricting the transfer of shares or for the optional or compulsory sale and purchase of shares among the shareholders and the corporation or any of them.”

      .LSA-R.S. 12:29 A: “A. Any lawful provision regulating the affairs of a corporation or the rights and liabilities of its shareholders, which is not required to be set forth in the articles, may be set forth in an agreement among all of the shareholders who would be entitled to vote on the provisions thereof if proposed as an amendment to the articles. Such an agreement shall be binding on all persons who are at the time such agreement is made, or who thereafter become, shareholders of the corporation, subject, in the case of persons not signatory thereto, to compliance with R.S. 12:57 (F). No other person dealing with the corporation shall be charged with constructive notice of such an agreement. Such an agreement may be terminated or modified by amendment at any time, in the manner (except that no amendment thereto need be filed or recorded except as provided in subsection B of this section) and by the vote which would be required for adoption of an amendment to the articles deleting or similarly modifying the provisions thereof if they had been set forth in the articles, or by such larger vote as may be specified in the agreement.”

      . There is a presumption that sufficient notice of a meeting of the shareholders has been given, 18 C.J.S. Corporations § 557, which has not been rebutted in this case.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Crystal ROLAND, Plaintiff-Appellant, v. Ignatius I. TEDESCO, III, et al., Defendants-Appellees.
    No. 15005.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Rehearing Denied Dec. 9, 1982.
    Writ Granted Feb. 4,1983.

      Troy E. Bain, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Sidney E. Cook, Shreveport, for defendants-ap-pellees.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

In this medical malpractice action allegedly arising out of the 1976 wrongful death of her son, a non-resident plaintiff appeals a judgment dismissing her action without prejudice because she failed to prosecute on the date it was set for jury trial. CCP 1673.

Plaintiff appeals, contending that the trial court abused its discretion in denying her motion for a continuance filed in proper person on the trial date. CCP 1601. We affirm.

Plaintiff’s action was filed in 1980 after a medical review panel had been established and reported its decision unfavorably to plaintiff on May 16, 1980. LRS 40:1299.47.

Plaintiff’s original attorney died on August 19,1981. Thereafter, plaintiff and her Indiana attorney contacted a Shreveport law firm who investigated and eventually offered to represent plaintiff in the action for a fixed retainer. During this period, defendants’ counsel caused the case to be fixed for trial on January 4,1982. Plaintiff was notified of this in a letter from the Shreveport firm that she earlier consulted. This letter, dated December 10, received by plaintiff on December 18, 1981, reads in part:

“Again, attorney for the defendants ... is ... anxious to bring this case to a head, and has set the case for trial the week of January 4, 1982. We would advise you to immediately contact other local counsel, who may be able to handle this matter under a different retainer arrangement than we propose.
“We appreciate being given the opportunity to examine the file, and wish you the best of luck in this litigation.”

At the hearing on the motion for continuance, plaintiff did not contest the statement of defendants’ counsel that plaintiff was informed by his letter mailed to her on November 10, 1981, that thé case was fixed for trial on January 4, 1982. In her motion for continuance, filed on January 4, 1982, the date the case was called for a trial by jury, the plaintiff sought 60 days to hire an attorney. Plaintiff certified that she had mailed a copy of the motion to defendants’ counsel on December 24, 1981.

At the January 4,1982 hearing on the motion for continuance, the trial court observed:

“There is question as to the facts. I will state my understanding of this matter and the basis of my ruling. This matter was set for pre-trial, as we normally do on matters such as this, jury trial. I personally informed the plaintiff in this case of the fact that it was set for pre-trial, gave her an opportunity to appear or retain counsel. At that time I was contacted by a lawyer in Indiana and told that Mr. Bain was being consulted about being enrolled as counsel in this ease.
“Mr. Bain, I had an opportunity to talk to you prior to this time. What I said very clearly was unless a motion was filed by the 28th of December that I was not going to allow a continuation. No motion has been filed by the 28th, and because of that I believe I have given the plaintiff every opportunity to have counsel enrolled by that time.
“The defendant is ready to proceed. The matter is a case of longstanding in the court. This motion for continuance comes too late. I informed her; I informed Mr. Bain; I informed the lawyer in Indiana, that if the motion came on the day of trial, I was not going to grant it. And this, in fact, is what has occurred. So your motion for a continuance is denied.”

It has been held that the withdrawal of litigant’s attorney on the day of the trial without previous notice is good grounds for a continuance. Marpco, Inc. v. South States Pipe & Supply, 877 So.2d 525 (La.App.3d Cir.1979). On the other hand, a motion for a continuance made on March 20 in an action set for trial on March 24 was denied where the litigant attorney withdrew some six months before. Lambert v. Heirs of Adams, 325 So.2d 331 (La.App.3d Cir.1975), writ refused. Obviously, each case concerning a continuance must be determined by its own circumstances.

The trial court must have authority to control and move its docket. Every litigant, plaintiff or defendant, must have the right to have the litigation in which they are respectively involved, tried and concluded. For these reasons, the trial court is recognized to have discretion in granting and denying continuance. St. Mary v. Duhon, 254 So.2d 924 (La.App.3d Cir.1971).

Here, the trial court’s statement is not refuted that the plaintiff, her Indiana counsel, and the counsel who appeared for her solely at the motion for continuance, were told before December 28, 1981, that a motion for continuance filed on that date would be granted and that a motion filed on the trial date would be denied.

In view of the circumstances that this case had been long pending and that it was fixed for trial (at defendants’ request) by jury (at plaintiff’s request), we do not find that plaintiff has shown an abuse of discretion. She apparently elected to wait until the trial date to file the motion and did not offer any explanation why she did not comply with the trial court’s instructions about timely filing the motion for continuance.

At appellant’s cost, judgment is AFFIRMED.


author: HALL, Judge.

text:
    Kenneth HONEYCUTT v. INTERNATIONAL PAPER COMPANY, et al. Milton ROBERTS v. LOUISIANA POWER & LIGHT COMPANY and International Paper Company, et al. Charles W. SANDERS and Kathern Wallace v. LOUISIANA POWER & LIGHT COMPANY and International Paper Company, et al.
    Nos. 15012 to 15014.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Rehearing Denied Dec. 9, 1982.
    DeBlieux & Hurder by J.D. DeBlieux, Baton Rouge, for plaintiff-appellant, Kenneth Honeycutt.
    Cook, Yancey, King & Galloway by Herschel E. Richard, Jr., Shreveport, for defendant-appellee,- International Paper Co.
    Bruscato, Loomis, Deal & Street by Anthony J. Bruscato, Monroe, for plaintiffs-appellants, Milton Roberts and Charles W. Sanders and Kathern Wallace.
    Before HALL, FRED W. JONES and SEXTON, JJ.
   HALL, Judge.

The plaintiffs in these three consolidated tort suits appeal from a summary judgment rejecting their demands against defendant, International Paper Company. Finding that the evidence submitted by the defendant in support of its motion for summary judgment does not establish undisputed facts sufficient to compel judgment in its favor as a matter of law, we reverse, overrule the motion for summary judgment, and remand for further proceedings.

The plaintiffs are the father of the minor Joseph W. Honeycutt, the parents and survivors of Charles Ricky Sanders, and Milton Roberts. Honeycutt and Roberts were injured and Sanders was killed while doing sandblasting work at International Paper Company’s milk carton plant in Bastrop when a metal ladder they were carrying came into contact with high voltage power lines providing electricity to the plant. These suits for damages were filed against multiple defendants including International Paper Company alleging joint negligence and strict liability on the part of the defendants. The three men were all employees of Lester Braddock d/b/a Braddock Welding Service who had been hired by Mobile Washing Systems, Inc. to do certain work on the exterior surface of defendant’s plant pursuant to a contract Mobile Washing Systems had with the defendant to clean and seal the entire exterior surface of the plant.

International Paper filed a motion for summary judgment, supported by the affidavits of two of its supervisory employees and a copy of its contract with Mobile Washing Systems, contending that the work being done by the employees of the subcontractor at the time of the accident was a part of the defendant’s trade, business, or occupation and that pursuant to LSA — R.S. 23:1061 and 1032 the plaintiffs’ exclusive remedy is for workers’ compensation benefits. The essence of the affidavits is that the work being done was part of the routine maintenance necessary to maintain the building and that the work being performed was the type of work regularly performed by maintenance men employed by defendant at another plant, but the work had been contracted out at this plant for convenience and economic reasons. No counter-affidavits were filed by plaintiffs. The trial court held that the facts recited in the affidavits must be considered true because they were not controverted by the plaintiffs, that there was no issue of material fact, and that the work being done was part of the defendant’s trade, business, or occupation because it was routine repair and maintenance which is a part of the regular business of a manufacturing plant.

On appeal plaintiffs urge that the affidavits offered by defendant in support of its motion for summary judgment are insufficient to negate the existence of genuine issues of material fact and do not contain sufficient facts, as distinguished from conclusions, to warrant judgment for the defendant as a matter of law.

A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, 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; Jones v. Prudential Insurance Company of America, 415 So.2d 223 (La.App.2d Cir.1982). A summary judgment is warranted only when reasonable minds must inevitably conclude from the facts before the court that the mover is entitled to judgment as a matter of law. The mover must carry the burden of proving that there is not a genuine issue of material fact in dispute. Any doubt is to be resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Jones v. Prudential Insurance Company of America, supra; Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981). Ultimate or conclusionary facts and conclusions of law contained in supporting affidavits cannot be utilized on a summary judgment motion. Thompson v. South Central Bell Tel. Co., 411 So.2d 26 (La.1982).

The determination of whether a principal is a statutory employer must be made on a case-by-case basis. Sisk v. Insurance Company of North America, 356 So.2d 1109 (La.App.2d Cir.1978).

There is a multitude of cases dealing with the issue of whether certain work is a part of the principal’s trade, business, or occupation within the meaning of LSA — R.S. 23:1032 which provides:

“The rights and remedies herein granted to an employee or his dependent * * * shall be exclusive of all other rights and remedies of such employee * * * against his employer, or any principal * * *. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof. * * * ”

See Malone and Johnson, Workers’ Compensation 2d Edition, §§ 364, 126, 128, 78, and the cases cited therein, and the review of cases in Traylor v. Shell Oil Company, 400 So.2d 342 (La.App.4th Cir.1981).

In determining whether particular repair and maintenance work is a part of defendant’s trade, business, or occupation, the courts have considered whether the work is routine, ordinary, regular or usual, whether the particular defendant or the industry customarily does the particular work with its own employees, whether the defendant has employees on its payroll who regularly perform the work, whether the work is essential to or an integral part of the defendant’s business, whether the work is frequent, continuous or day-to-day, and other factors. No one factor is determinative. In this case, the evidence supporting defendant’s motion for summary judgment does not reflect sufficient facts relating to the various criteria to compel a finding as a matter of law that the work being done was a part of defendant’s business.

The contract between International Paper Company and Mobile Washing Systems, Inc. was for the cleaning and sealing of the entire exterior surface of the building housing defendant’s milk carton plant. Defendant’s supporting affidavit states that “from time to time it is necessary to perform maintenance on the concrete exterior surface of the building.” This statement does not, however, reveal how often maintenance is performed, what type of maintenance is performed, or whether any work of the type being performed in this instance, sandblasting, caulking, and sealing, had ever been performed on the plant building since it was occupied by the defendant in 1970.

The affidavit states that the work involved in cleaning and sealing the exterior surface of the building was part of the routine maintenance necessary to maintain the building and thus keep the plant in operation and this maintenance was a part of the regular trade, business, and occupation of defendant. This statement is con-clusionary in nature rather than factual. The statement does not contain facts upon which a determination that the work was “routine” could be based. The affidavit states that the work being performed at the time of the accident was caulking and sandblasting which is the type of work regularly performed by maintenance men employed by defendant at another plant. Again, “type of work” is a vague term and the affidavit does not state that caulking and sandblasting the exterior of buildings is work regularly performed by its employees at another plant.

The affidavits do not set forth facts which show that the cleaning, sandblasting, sealing, and caulking of the exterior of a concrete building is ordinary, routine maintenance and repair. They do not set forth facts which show that defendant has employees who do that specific work either at this plant or other plants, or that industry practice is to do this specific work with the manufacturer’s own employees.

Plaintiffs cite cases in which the tort immunity defense was rejected or found not to be established on motion for summary judgment. Thompson v. South Central Bell Tel. Co., supra; Lushute v. Diesi, 354 So.2d 179 (La.1978); Caldwell v. George Sproull Co., 184 La. 951, 168 So. 112 (1936); Shipp v. Bordelon, 152 La. 795, 94 So. 399 (1922); Brown v. State Farm Fire and Casualty Company, 407 So.2d 1251 (La.App.3d Cir.1981); Gunnels v. Farmers Export Company, 394 So.2d 766 (La.App.3d Cir.1981); Rappattoni v. Commercial Union Assurance Company, 378 So.2d 953 (La.App.3d Cir.1979). Defendant likewise cites cases where the tort immunity defense was upheld, either on motion for summary judgment or after trial. Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (1951); Thibodeaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852 (1950); Traylor v. Shell Oil Company, supra; Redler v. Louisiana Power & Light Company, Inc., 383 So.2d 409 (La.App.4th Cir.1980); Sisk v. Insurance Company of North America, supra; Wofford v. Dow Chemical Co., 335 So.2d 536 (La.App.lst Cir.1976); Foster v. Western Electric Company, Inc., 258 So.2d 153 (La.App.2d Cir.1972). Suffice it to say that each case is to be decided on its own facts, and that the material facts of the instant case have yet to be fully developed, requiring trial on the merits.

For the reasons assigned, the judgment of the district court is reversed and set aside, the motion for summary judgment is overruled, and these cases are remanded to the district court for further proceedings.

Reversed and remanded.


text:
    Sherry Ann Caldwell GATSON, Plaintiff-Appellant, v. Jerry Wayne GATSON, Defendant-Appellee.
    No. 15015.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Simmons & Nelson by Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant.
    Joseph A. Cusimano, Jr., Ltd., P.C. by Joseph A. Cusimano, Jr., Farmerville, for defendant-appellee.
    Before HALL, FRED W. JONES and SEXTON, JJ.
   FRED W. JONES, Judge.

On March 5,1982 Sherry Gatson sued her husband, Jerry Gatson, for a legal separation on the grounds of mental cruelty, nonsupport and defamation. The defendant filed exceptions of res judicata and no cause of action, which were sustained by the trial judge. Plaintiff appeals the judgment.

At the trial of the exceptions, defendant filed in evidence the record of a prior suit for legal separation filed on December 3, 1981 by this plaintiff against this defendant. Judgment rejecting plaintiff’s demands in that previous suit was signed on February 19, 1982. In oral reasons for judgment, the trial judge determined that allegations pertaining to cruel treatment contained in the first petition for a legal separation were substantially repeated in paragraphs 7 and 8 of the petition filed in the second suit. Therefore, the exception of res judicata was sustained as to those paragraphs. Adverting to the remaining paragraphs of the second petition, the trial court ruled that they were simply conclu-sionary allegations which did not state a cause of action, and sustained that exception also.

Our examination of the record reveals that after judgment was rendered in the first suit between these parties, plaintiff timely moved for a new trial. This motion was denied on March 1, 1982. Under La. Code of Civil Procedure Articles 3942 and 2087(2), plaintiff had 30 days from that date in which to appeal the judgment rendered in the first litigation. This delay had not expired when the trial judge signed the judgment on March 22, 1982 sustaining the exception of res judicata.

La.C.C.P. Art. 1842 provides:

A final judgment is definitive when it has acquired the authority of the thing adjudged.

La.C.C.P. Art. 3556(31) defines “thing adjudged” as:

[t]hat which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on appeal.

Here, the judgment in the first suit for a legal separation was not final and definitive when the exception of res judicata was sustained by the trial judge. Therefore, this prior judgment had not “acquired the authority of the thing adjudged” and could not at that time serve as the basis for a plea of res judicata. Consequently, the trial judge erred in sustaining that exception. As a result of this erroneous ruling, the trial disregarded the allegations of paragraphs 7 and 8 of plaintiff’s petition in the second suit in determining whether a cause of action was stated. The allegations of paragraph 8 clearly state a cause of action.

For the reasons set forth, we reverse the judgment of the district court sustaining the exceptions of res judicata and no cause of action; render judgment overruling those exceptions; and remand this case to the lower court for further proceedings consistent with this opinion, with costs of appeal assessed to appellee.

      . Although not relevant to the disposition of this appeal, in an unpublished opinion rendered on this date in Gatson v. Gatson, No. 15,008, we affirmed the district court judgment dismissing plaintiffs demands for a legal separation in her first suit against this defendant.

      . “Defendant has been guilty of cruel treatment, particularly in that he would force his wife to go to his mother’s home when he knew that they did not get along; on November 20, 1981 he locked all of the doors to the house to prevent the plaintiff and her child from being able to get into the house; on November 21, 1981, the defendant took the child bom of the marriage and threatened to put some buck shots in her if she did leave the house; and on November 24, 1981 the defendant put the plaintiffs clothes on the outside of their home, all causing petitioner a great amount of emotional and mental distress.”


author: JASPER E. JONES, Judge.

text:
    Donald Ray UPDEGRAFF, Plaintiff-Appellee, v. Susan Sigler UPDEGRAFF, Defendant-Appellant.
    No. 15018.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.

      Love, Rigby, Dehan, Love & McDaniel by J. Phillip Goode, Jr., Shreveport, for defendant-appellant.
    Soekrider & Bolin by H.F. Sockrider, Jr., Shreveport, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

This is a child support case. Susan Upde-graff filed a rule against her former husband, Donald Updegraff, to increase the child support for their two children, Erica, age 9, and Donald, Jr., age 7. Donald responded with a rule to reduce child support. The rules were consolidated and after a trial on the merits the district judge rendered judgment ordering Donald to pay child support of $475.00 per month each, or a total of $950.00, and requiring him to maintain hospitalization and major medical insurance on the children. Susan appeals. We amend and affirm.

Susan sets out three assignments of error. She contends the trial judge erred in:

1) effectively reducing child support when the evidence showed a change in circumstances supporting an increase in the award;
2) fixing child support at a grossly inadequate amount; and
3) failing to consider the income of Donald’s new wife, Mary, in determining his ability to pay.

Donald and Susan were married in 1968 and divorced in March, 1981. The judgment in the divorce action awarded Susan custody of the children but she did not receive permanent alimony. By consent of the parties the judgment fixed child support at $808.58 and required Donald to maintain health insurance on the children and to pay the mortgage, taxes and insurance on the family home, where Susan and the children continued to reside, until its sale.

The total monthly expenditure required by the judgment was $1,533.49. Donald also provided insurance on the car used by Susan and the children until it was transferred into Susan’s name. Donald ceased making the house related payments as of December 1, 1981, because Susan had purchased his interest in it.

On December 22, 1981, Susan filed her rule to increase child support to $2,000.00 per month. Donald then filed his rule to reduce child support to an amount not exceeding “the reasonably substantiated needs” of the children. After trial of the consolidated rules the judgment complained of was rendered.

Through her first assignment of error, Susan contends that the judgment erroneously reduces child support when the record shows a change in circumstances which supports an increase.

Susan argues that by his consent to the original judgment Donald judicially confessed that child support of $1,533.49 was appropriate. Therefore, she argues, the award may not be reduced below that figure absent a showing by Donald of a substantial change in circumstances which supports the reduction.

Even a consent judgment fixing child support may not be modified absent a showing by the party seeking the modification, of a substantial change in circumstances supporting the modification. Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980); Jones v. Jones, 351 So.2d 825 (La.App. 1st Cir.1977).

The original judgment in this case made the direct payments on the house subject to termination on its sale. It is not disputed by appellant that the house has been sold within the contemplation of the judgment and that the direct payments were rightly terminated by appellee. Thus, by the judgment’s own terms, the only portion of the original child support award in effect at the time of the trial of this matter was the award of $808.58 per month to be paid to appellant. Under these circumstances we must regard the award of $950.00 per month as an increase, rather than a decrease as contended by appellant, in child support.

The appellant’s first assignment of error is without merit.

Through her second assignment of error Susan contends that the trial judge erred in awarding support in a grossly inadequate amount.

Child support is to be fixed in proportion to the needs of the children and the non-custodial parent’s ability to pay. C.C. Art. 231; Nelson v. Nelson, 335 So.2d 787 (La.App. 1st Cir.1976). The children should enjoy the same standard of living they would have if they resided with the noncustodial parent. Prados v. Prados, 341 So.2d 1286 (La.App. 3rd Cir.1977).

The trial judge has much discretion in fixing child support and his award will not be disturbed absent a clear abuse of discretion. Allbritton v. Allbritton, 393 So.2d 825 (La.App. 2d Cir.1981); Frazier v. Frazier, 318 So.2d 625 (La.App. 2d Cir.1975).

Susan claims the expenses of these two children, ages 7 and 9, are $1,923.01 per month. The largest item in the claimed list is housing. Susan contends that %’s of the monthly payments on the former family home, which she elected to purchase, should be assessed as child support. She also claims %’s of the annual taxes and insurance on the house. Susan’s total claim for housing for the two children is the sum of $476.84.

The record shows that Susan refused to sell the house to a prospective purchaser for an offer of $170,000.00 cash. Instead, she borrowed $43,590.00 from a gentleman friend and purchased Donald’s interest in the house. If Susan had joined Don in the sale of the house to the prospective purchaser she would have received from the sale of the house for her equity in it approximately the amount she paid Don for his interest in the house. At the time Susan did this, and assumed the house payment, taxes and insurance of $724.91 per month, she was unemployed.

As a payor spouse is not excused from paying child support by financial distress caused by his own fault, Moore v. Moore, 380 So.2d 180 (La.App. 2d Cir.1980); neither should the payee spouse be allowed to claim large and unreasonable amounts as child support because of financial distress occasioned by his own fault.

It had been contemplated by the parties that the family home would be sold and the proceeds divided between them to allow each to obtain housing more appropriate to their needs. However, Susan declined to sell the home when an offer was received and against all economic reason decided to purchase Donald’s interest herself. Donald should not be made to pay for Susan’s folly through child support.

Susan’s house has four bedrooms and contains 2,843 square feet of heated space and has an established value of $170,000.00. The town house purchased by Don for $103,000.00 has only 1,784 square feet of heated space. It is therefore apparent that the home which Susan contends the children should be provided is much larger than the home occupied by their father and no doubt contains substantial living area which is neither necessary nor essential to the comfort of these small children.

A review of the other expenses claimed by Susan shows that many are obviously inflated and others are not recoverable or provide duplications of items supplied by Donald. The litigants had agreed in March of 1981 that $808.58 would provide for the needs of the children. However, an allowance for housing was not included within the amount. We have reviewed the list of child support expenses that formed the basis for the March consent judgment and find them fully adequate to provide the children a lifestyle commensurate with their father’s position in the community as a successful business executive, with the exception of the omission of a housing allowance.

We conclude that the amount claimed by appellant for housing for the children is grossly excessive and that the sum of $300.00 per month for housing should adequately provide funds to acquire housing for them comparable to that which they would enjoy if they were living with their father.

The trial judge increased the award to $950.00 but did not articulate the basis for the increase. We believe the increase was probably given to provide funds to pay for housing for the children. However, this increase of approximately $141.00 was inadequate to provide housing for the children comparable to that which they would enjoy if they were living with their father. We have determined that the March, 1981, child support award should be increased by $300.00 to provide for this deficiency.

The judgment of the trial court should be increased by $158.58, to the amount of $1,108.58.

The trial judge properly stressed in his reasons for judgment the fact that the mother and the father each have an obligation to provide for the support of their children and we find no abuse of his discretion in making the award, other than his failure to provide an adequate amount to provide the children with a place to live.

The fact that Susan is now unemployed and has exhausted her unemployment compensation does not affect our view that the child support here awarded is adequate to provide for the children. However, we note for the record that she could have been employed full time as a substitute teacher in Bossier Parish. She also seems to have made less than an all out effort to obtain a job since she has not made an application for employment through any employment agency.

Don virtually concedes in brief that his ability to pay is not an issue in this case and we fully agree because his net income of approximately $3,700.00 per month is more than adequate to meet his child support obligations and his own living expenses. For these reasons the assignment of error related to the trial court’s failure to consider the earnings of Don’s new wife in determining his ability to pay need not be addressed by us.

The judgment as appealed is amended to increase the cash child support awarded from $950.00 to $1,108.58, and the second paragraph of the judgment is recast to reflect the increase which shall be effective December 22, 1981, to read as follows:

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the obligation of DONALD RAY UPDEGRAFF to pay unto SUSAN SIGLER UPDE-GRAFF child support on behalf of the two minor children of their former marriage, Erica Simmons Updegraff and Donald Ray Updegraff, Jr., is hereby set at the sum of FIVE HUNDRED FIFTY FOUR AND 29/100 ($554.29) DOLLARS per month, per child, or a total of $1,108.58 per month, effective December 22, 1981, with said payment being due and payable on or before the first day of each calendar month.”

Except as AMENDED the judgment is AFFIRMED. All court costs incurred in the trial court and on appeal are assessed equally between the litigants.

      . In Susan’s list of monthly needs for the children filed in the proceedings wherein the consent judgment was rendered she initially sought $251.25 to provide housing for the children.


author: SEXTON, Judge. HALL, Judge,

text:
    Alma LaVerne FRAIN as Tutrix of the Minor Child, Kelly Anne BEASON, Plaintiff/Appellant, v. STATE FARM INSURANCE COMPANY, et al., Defendants/Appellees.
    No. 15019-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.

      Cryer & Harp by Tommy K. Cryer, Shreveport, for plaintiff/appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Julie Mobley, Shreveport, for defendants/appellees, Diane Hickman and State Farm Ins. Co.
    Mayer, Smith & Roberts by A.J. Gregory, Jr., Shreveport, for defendant/appellee, Liberty Mut. Ins. Co.
    Before HALL, FRED W. JONES and SEXTON, JJ.
   SEXTON, Judge.

This is an appeal from the trial court’s decision to sustain a peremptory exception of no cause of action in a suit for the wrongful death of Deborah S. Grubbs. The suit was filed by Alma LaVerne Frain as the tutrix of Ms. Grubbs’s minor daughter, Kelly Beason.

The facts which gave rise to Ms. Frain’s suit, as delineated in plaintiff’s petition, may be simply stated. At the time of her death, decedent Deborah Grubbs was a patient at Schumpert Medical Center in Shreveport, Louisiana. Deborah Grubbs was suffering from a severe emotional disorder and this condition was being treated with drugs at the Schumpert Medical Center. On August 27, 1980, decedent was allowed out of the medical center on a temporary “pass.” On the same date, Diane E. Hickman loaned a 1979 Oldsmobile Cutlass to Ms. Grubbs. The tragic result of these circumstances was summarized in plaintiff’s petition as follows:

“Sometime after 12:00 midnight and before 1:18 o’clock a.m., on August 28,1980, decedent was driving the borrowed car in a northbound direction on Mansfield Road in Shreveport, Louisiana, when her vehicle left the road and struck a concrete abutment.”

Ms. Grubbs died as a result of injuries received in the collision.

Plaintiff, Alma Frain, tutrix of Ms. Grubbs’s surviving daughter, alleged in her petition that Deborah Grubbs negligently contributed to her own death by driving while suffering from a severe emotional disorder and while under the influence of drugs, and by failing to maintain control of her car. Plaintiff further alleged that Diane E. Hickman negligently contributed to Ms. Grubbs’s death by loaning the late model car to Ms. Grubbs while knowing — or at such time as she should have known — that Ms. Grubbs was then being treated with drugs for a severe emotional disorder. Thus, the essence of plaintiff’s civil suit is that the negligence of both Ms. Grubbs and Ms. Hickman causally combined to deprive Ms. Grubbs of her life and Kelly Beason of her mother, thus conferring upon Miss Bea-son a wrongful death action in the amount of $600,000.00 for mental anguish, and the loss of future support and companionship. Plaintiff has accordingly joined three defendants: (1) Ms. Grubbs’s insurer, Liberty Mutual Insurance Company, (2) Diane E. Hickman, and (8) Ms. Hickman’s insurer, State Farm Mutual Automobile Insurance Company.

Defendant Liberty Mutual Insurance Company filed a peremptory exception of no cause of action. Defendant Diane E. Hickman and her insurer State Farm Mutual Automobile Insurance Company similarly responded by filing a peremptory exception of no cause of action. Plaintiff’s claims against Ms. Grubbs’s insurer Liberty Mutual were settled, leaving plaintiff to litigate her claims against the remaining two defendants, Diane E. Hickman and her insurer State Farm Mutual Automobile Insurance Company.

Plaintiff’s suit against the remaining defendants was defeated when the trial court sustained defendant’s peremptory exception of no cause of action on November 25,1981.

The peremptory exception of no cause of action is appropriately sustained only when, assuming the allegations of plaintiff’s petition to be true, plaintiff has not stated a claim for which he can be legally compensated under the applicable substantive law. See LSA-C.C.P. Art. 927; Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir.1980); Guillory v. Nicklos Oil & Gas Co., 315 So.2d 878 (La.App. 3d Cir.1975). In determining whether plaintiff’s petition failed to state a cause of action, this court must assume the truth of plaintiff’s allegations and apply the pertinent substantive law to the facts alleged. Having done so we conclude that plaintiff’s petition does state a cause of action under the applicable law, and that the trial court’s decision to sustain the peremptory exception must therefore be reversed.

The question to be resolved herein is the same as posed by Professor Johnson in his analysis of Callais v. Allstate Insurance Co., 334 So.2d 692 (La.1975):

“The real issue to be resolved is whether the rule which requires the defendant to avoid a wrongful killing of the victim includes a killing which is produced in part by the defendant’s conduct and in part by the victim’s conduct. If it does not, then the conclusion will be no liability, and we can expect that the court will express that as often as not by saying simply that the contributory negligence of the victim bars recovery by the beneficiaries.” Johnson, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La.L. Rev. 1, 45 (1976).

It will be recalled that in Calíais the decedent was the only negligent party and accordingly the holding was:

“Thus, we hold that a child may not recover damages for a parent’s death when the death resulted solely from the deceased parent’s lack of care for his own safety.” Calíais, supra, at 701. (emphasis added).

However, Professor Johnson was asking the same question which the First Circuit answered in the negative in Olinde v. American Employers Insurance Co., 376 So.2d 1027 (La.App. 1st Cir.1979). In Olinde the decedent and the defendant had been drag racing at speeds over 70 miles per hour. Because of an approaching vehicle the defendant attempted to slow down and pull in behind the decedent. The First Circuit noted that a factual question existed as to whether there was a collision as a result of the defendant’s maneuver. In any case, the decedent lost control of his vehicle which struck a tree, causing his death. Noting with approval Professor Johnson’s Calíais analysis, and repudiating the imputed contributory negligence concept of Vitale v. Checker Cab Company, Inc., 166 La. 527, 117 So. 579 (1928), the court, in the following terms, found that any duty which the defendant had under these circumstances would not extend to the decedent’s beneficiaries:

“Simply stated, the courts have adopted the policy that the beneficiaries of a decedent who aided or contributed to his own demise cannot recover for the wrongful death of the decedent. This is true whether we use the rubric of imputed contributory negligence, duty-risk, or even assumption of the risk.
“Vitale should be repudiated not because of the result, which is correct, but because of the use of the imputed contributory negligence theory. The courts in this state began to come of age with Dixie Drive It Yourself System New Orleans Co., Inc., v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), when we began speaking in terms of duty-risk. If the duty-risk analysis had been applied to the Vitale facts the same result would have been reached, because ‘the risk that the beneficiaries will be harmed by the conduct of the defendant which combines with the conduct of the victim to produce the victim’s death is simply beyond the standard which we choose to apply to the defendant.’ ...” Olinde, supra, at 1029.

Through two assignments of error the plaintiff here contends that Act 431 of 1979 which returned comparative negligence to our legal system legislatively overruled Cal-íais and Olinde. Recall that the plaintiff herein alleges both the negligence of this decedent as well as the negligence of the defendant who loaned the vehicle. Thus the plaintiff asserts that as a result of Act 431 of 1979 plaintiff should recover, but have that recovery reduced by the extent of the negligence of her deceased mother.

In providing the concept of comparative negligence for our law, LSA-C.C. Art. 2323 states, “When contributory negligence is applicable to a claim for damages, its effect shall be as follows: ...” In reviewing the effect of comparative negligence on our current duty/risk tort concept Professor Johnson noted in his very excellent article Comparative Negligence and the Duty/Risk Analysis, 40 La.L.Rev. 319 (1980):

“For this purpose, tort cases may be divided into three broad categories: (a) those in which a defendant’s duty extends to the protection of a plaintiff against his own carelessness; (b) those in which defendant is not liable because the plaintiff’s conduct has produced a situation for which the law should not require a reasonably prudent person to prepare and respond; and (c) those that fall in neither category, in which the victim’s fault and the defendant’s fault may each be weighed in the balance.” (40 La.L.Rev. at 333).

Thus the type “a” situation requires an analysis of victim fault as part of the measurement of the defendant’s duty. See Baumgartner v. State Farm Mutual Insurance Company, 356 So.2d 400 (La.1978), Boyer v. Johnson, 360 So.2d 1164 (La.1978), and Rue v. State Department of Highways, 372 So.2d 1197 (La.1979). Type “b” cases are obviously susceptible of the same analysis except that in those cases the result is that the plaintiff’s conduct is of such a nature, or creates such a situation that the defendant has no duty to protect against those circumstances. (Clearly this was the determination in Olinde, supra,) Perhaps we can call these two types “strict” duty/risk cases. Of course the third category of cases is all of the rest, i.e., those which do not fall in either of the other two categories — and in which case the fault of both the plaintiff and the defendant is to be considered.

Therefore Professor Johnson contends that since contributory negligence is not an issue in “strict” (type “a” and type “b”) situations that comparative negligence is likewise inapplicable:

“In each instance, the duty/risk analysis is the proper vehicle by which to determine the issue of applicability of contributory or comparative negligence. This inquiry must be completed, in fact, before the tenets of Act 431 can be used. If defendant is not liable because plaintiff’s conduct has created a situation such that defendant could not possibly be expected to protect him against such risks, then Act 431 is inapplicable. No recovery, even at a reduced level, would be just. On the other hand, if defendant’s duty extends to the protection of persons such as this careless plaintiff, Act 431 is equally without application. Plaintiff should not under those circumstances be expected to suffer a reduction in his recovery. Thus, the sophistication reached at this point with the duty/risk analysis will continue to eliminate those instances in which the absolute-bar rule was most troublesome, and it will also protect defendants against liability where none should attach even at a reduced level.” (Johnson, 40 La.L.Rev. at 339-340). (emphasis added).

In passing Act 431 of 1979 we must assume the Legislature was aware of Baumgartner, Boyer, and Rue, supra, and their progeny. Louisiana Civil Service League v. Forbes, 246 So.2d 800 (La.1971), State v. Hillebrandt, 146 So.2d 718 (La.App. 3d Cir.1962). We therefore accept and adopt the analysis of Professor Johnson, to-wit; in those “strict” situations where the defendant’s duty extends to protect the plaintiff against his own carelessness, or in those situations where the defendant is not liable because the plaintiff’s conduct creates circumstances for which the law should not require a prudent person to prepare, then comparative negligence should not be invoked because contributory negligence is not an issue.

Calíais and Olinde, then are not overruled by Act 431 of 1979 since they are “strict” duty/risk cases and therefore do not involve contributory negligence. But recall that Calíais simply holds that beneficiaries are precluded from recovery when the incident is solely the result of the decedent’s negligence, and thus does not answer the issue here. Olinde, on the other hand, does respond to this issue. But we do not read Olinde to preclude the recovery of the beneficiary in all cases where the conduct of the decedent aided or contributed to his own death. If that is the holding of Olinde we would disagree with it. In our view, though, Olinde simply says that under a duty/risk analysis of the facts of that case the defendant’s duty did not extend to that beneficiary. Furthermore, Olinde opined that the decedent there assumed the risk .of injury and death by participation in the drag race.

As has been oft said each duty/risk analysis must be decided on its own particular facts. Thus we must determine if this defendant had a duty to protect this decedent against her own actions under these circumstances, and whether this duty extended to this plaintiff-beneficiary. We answer this question in the affirmative. We do so because of our belief that a reasonably prudent person has a clear duty to recognize the manifest danger of lending an automobile to someone the lender knows or should know is suffering from a “severe emotional disorder” and is “under the influence” of drugs. A prudent person should recognize that under these circumstances it is highly likely that serious injuries or death will foreseeably result. This same cautious person should acknowledge that those in this condition are likely to be suffering from self-destructive impulses and suffer a lack of understanding of the consequences of their actions; and more importantly are not able to rationally control their actions or thought processes.

The risk that one suffering from a severe emotional disorder and under the adverse influence of drugs poses to himself and others is obviously compounded when that individual is equipped with a dangerous instrumentality such as an automobile. The possibility that such an individual will lose control of that automobile is a highly foreseeable result of the loan, and the likelihood that an emotionally disturbed borrower will be injured or killed in the resulting mishap is precisely the danger that should cause a prudent person to perceive the loan as an unreasonable risk. The scope of the duty therefore includes this risk.

We furthermore believe that the likelihood of death as a result of the loan of an automobile under the circumstances here pled is so large that the duty a reasonably prudent person has to avoid this decedent’s risk extends to this plaintiff-beneficiary. In other words, viewing this duty as we do, as obviously extending to the deceased, to not extend the duty to the decedent’s beneficiary undermines the viability of defendant’s duty to the deceased. If the facts as pled can be proven the defendant ignored a patently life threatening situation and should not be relieved of duty because of the death of the party to whom such a high duty to avoid an obvious risk was owed.

We therefore reverse the judgment of the trial court which sustained the peremptory exception of no cause of action and remand for further proceedings not inconsistent herewith, at appellee’s costs.

REVERSED and REMANDED.

HALL, Judge,

concurring in the reversal and remand.

I concur in the reversal and remand in this case because plaintiff’s petition states a cause of action, and I essentially agree with the reasons expressed in the scholarly majority opinion.

One reason for this concurring opinion is my disagreement in part with the majority’s treatment of the Olinde case and the effect of comparative negligence on the law expressed in that case. Using the majority — Professor Johnson analysis, Olinde was a type “c” case, and the court correctly held, as a policy matter under the law as it existed at that time, that the beneficiaries of a contributorily negligent decedent cannot recover for the wrongful death of the decedent. With the adoption of comparative negligence, the result in a type “c” contributory negligence wrongful death action should be a reduction in the damages recoverable by the beneficiary in proportion to the degree or percentage of negligence attributable to the beneficiary and/or the victim. Expressed in duty-risk terms, the duty owed by a defendant to the beneficiary of a decedent does not afford the beneficiary a greater degree or percentage of protection than that afforded to the victim.

Another reason for the concurring opinion is to express the thought that the duty-risk analysis in Baumgartner, Boyer, Rue, and similar cases might have produced a different result had comparative negligence been the law at the time those cases were decided. Unquestionably, the total bar to recovery resulting from application of contributory negligence was an influencing policy consideration in those decisions. Certainly those cases involved a balancing or weighing of the fault of the plaintiff and the defendant. Given the Baumgartner facts today, wouldn’t comparative negligence supply the fair result, say, reduction of the Baumgarter plaintiff’s recovery by 10 percent? I believe that there will be type (a) cases (and the instant case may be one) where the defendant’s duty is found to extend to the protection of the plaintiff against his own carelessness, thereby making contributory negligence and, in turn, comparative negligence inapplicable. I also believe, however, that most cases of the type where in the past the contributory negligence of the plaintiff was found to be within the scope of the risks encompassed in the defendant’s duty and thereby not a bar to recovery, should be treated as type “c” cases and decided under comparative negligence principles. Results reached in the Baumgartner type cases before comparative negligence should not necessarily be considered as controlling under the new scheme.

In the instant case, plaintiff has set forth a cause of action for damages based on defendant’s negligence. The alleged negligence of the victim would not bar recovery or even result in a reduction of recovery if it is established that the defendant’s duty under the facts of this case extends to the protection of the victim against her own specific carelessness as established by the evidence in the case. If the facts develop precisely as alleged, then this may be a type (a) case in which comparative negligence should not be applied to reduce the plaintiff’s recovery. However, it could well be that the facts developed at trial could throw this case into a type “c” category, and should be decided under comparative negligence rules. This determination should be made only after all the evidence is in, and will depend on the facts and circumstances of the particular case.

      . The inception of duty/risk in Dixie Drive It, supra, obviously came as a result of the excesses of contributory negligence. In other words duty/risk became a part of our law to allow the courts to avoid contributory negligence concepts where the plaintiffs responsibility in the overall incident was minimal. Duty/risk, of course, has subsequently become the basis of all Louisiana tort analysis. Johnson, 40 La.L. Rev., supra.
      However, the author, while being forced to agree with Professor Johnson’s incisive analysis because of the context in which Act 431 of 1979 was passed and the wording thereof, be-Heves it would be much simpler and fairer, if our law allowed our tort analysis in every instance to be grounded in comparative negligence. Why not, in every case, simply compare the extent that the conduct of each party to the incident contributed to the causation thereof, and reduce that party’s recovery accordingly? We would thus return to a simple fault concept, precluding the necessity of the initial duty/risk analysis to determine what type duty/risk case we have in order to determine whether or not comparative negligence should be applied.


author: FRED W. JONES, Judge.

text:
    Aubrey MAXWELL et ux., Plaintiffs-Appellees, v. Lawrence E. GIBSON and City of Monroe, Defendants-Appellants.
    No. 15022.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Writ Denied Feb. 4,1983.
    Thomas V. Gardner, Jr., Asst. City Atty., Monroe, for defendants-appellants.
    Davenport, Files & Kelly by Mike C. Sanders, Monroe, for plaintiffs-appellees.
    Before MARVIN, FRED W. JONES and NORRIS, JJ.
   FRED W. JONES, Judge.

A husband and wife sued a city bus driver and his governmental employer for damages sustained when a car driven by the wife was hit in the rear by a city bus. From a judgment in favor of plaintiffs, defendants appeal, contending the trial judge erred in (1) finding that the failure of the defendant bus driver to testify raised a presumption that his testimony would have been unfavorable to defendants; (2) determining that the defendant bus driver was guilty of negligence and that plaintiff wife was free of contributory negligence; and (3) awarding an excessive amount for general damages.

For the reasons hereinafter set forth, we affirm.

At about noon on February 3, 1979 Mildred Maxwell was driving north on South Second Street (four lane thoroughfare with two northbound lanes separated by a median from two southbound lanes) in Monroe. As Mrs. Maxwell stopped her car at the intersection of South Second Street and Texas Avenue in obedience to a traffic signal, the rear of her automobile was struck by a Monroe city bus driven by Lawrence Gibson. These facts are uncontroverted. The manner in which Mrs. Maxwell operated her vehicle immediately prior to reaching the intersection is sharply disputed, with defendants contending that the accident was caused by Mrs. Maxwell’s abruptly changing lanes and cutting in front of the bus just before suddenly stopping for the traffic light.

Mrs. Maxwell testified that a few minutes before the occurrence of the accident she had turned onto South Second Street and proceeded north in the right or outer lane at a speed of 20 miles per hour. Approaching the Texas Avenue intersection, she observed the traffic light facing her turn to red and she stopped her car, at which time her vehicle was struck from the rear by a city bus. She denied ever changing lanes during this trip down South Second Street and stated she neither saw nor heard the bus prior to the collision. According to Mrs. Maxwell, there were two uniformed city employees on the bus, one of whom was Gibson, the driver.

Called to testify by plaintiffs were John Palmisano and James Shows, both of whom were standing near the intersection in question when the accident occurred but neither of whom actually witnessed the collision. Palmisano stated that he heard the impact, looked up and saw the Maxwell car stationary in front of the bus in the outer traffic lane. He also observed several cars, headed north, stopped in the inner lane of South Second Street at the intersection in question. The testimony of Shows was substantially the same as that of Palmisano. He denied having heard anything just prior to the accident that would have indicated the bus was taking emergency action to prevent a collision — such as a horn blowing or brakes squealing.

Testifying on behalf of defendants were four passengers who were riding on the bus. Each stated that Mrs. Maxwell, driving in the inner traffic lane, passed the bus which was in the outer lane, then suddenly turned to the right directly in front of the bus and abruptly stopped — leaving the bus driver no time to avoid the ensuing collision. One of these witnesses was sitting on the back seat on the left side of the bus, while the other three were positioned on the right side of the bus.

For reasons not explained in the record, the bus driver, Gibson, did not testify on behalf of himself or his defendant employer, nor did either defendant call to testify the other city employee who was riding on the bus at the time of the accident.

In written reasons for judgment, noting the failure of the bus driver, and his fellow employee to testify, the trial judge presumed that their testimony would have been unfavorable to the defendants, in accordance with the recognized rule of evidence. He then made the factual determination that Mrs. Maxwell was properly stopped for the traffic light, in the outer traffic lane, when the bus struck her automobile in the middle of the rear bumper. The trial judge proceeded to conclude that the defendant bus driver was negligent and, consequently, defendants were liable to plaintiffs for their damages.

In this case the bus driver was in the best position to describe exactly how the collision occurred, particularly with reference to the operation of the Maxwell vehicle -in relation to the bus just before the accident. Under these circumstances, the unexplained failure of that defendant to testify reasonably led the trial judge to the inference that his testimony would have been unfavorable to the defendants. Wig-more on Evidence, 3rd Ed. (1940), § 285, p. 192; Pugh, Louisiana Evidence Law, pp. 716-718.

Based upon our review of the record, we cannot say that the trial judge clearly erred in accepting Mrs. Maxwell’s version of events surrounding this accident, particularly in view of the testimony by the disinterested witnesses that they did not hear the bus driver sounding his horn or applying pressure to his brakes just before the collision, as would have been expected if the bus driver was faced by a sudden emergency of the kind claimed by defendants. Further, there is the physical evidence that the Maxwell car was struck in the middle of the rear bumper by the front of the bus, tending to show that Mrs. Maxwell was properly positioned in her traffic lane when struck by the bus.

As pointed out in Canter v. Koehring Co., 283 So.2d 716 (La.1973):

“[wjhere there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Further, based upon this fact-finding that Mrs. Maxwell was properly in the outer traffic lane, stopped for the traffic light,when her car was struck from the rear by the bus, the trial judge correctly applied the general rule of law that “when a following vehicle collides with the rear of a preceding vehicle, the following vehicle is presumed to be at fault and bears the burden of exculpating himself from the inference of negligence.” Hebert v. Lefty’s Moving Service, 389 So.2d 855 (La.App. 4th Cir.1980).

Since the defendants did not rebut the inference that the bus driver was negligent, the record amply supports the trial judge’s determination that his negligence was the sole cause of the accident, rendering the defendants liable for plaintiffs’ damages. Quantum

Defendants argue that the trial judge’s award of $40,000 to Mrs. Maxwell for general damages is excessive.

Immediately following the accident, the 56 year old plaintiff complained of pain in her chest and back. She was taken to the emergency room at the St. Francis Medical Center. X-rays were taken, but the results were negative for fractures. Arthritic changes of chronic nature were noted in the spine. Conservative treatment was prescribed and Mrs. Maxwell remained in bed for several weeks. When her symptoms failed to subside, Mrs. Maxwell’s family doctor referred her to Dr. Ledbetter, an orthopedic surgeon. On June 27, 1979 a myelogram was performed, revealing the existence of a large herniated disc at the interspace between the 4th and 5th lumbar vertebrae. Dr. Ledbetter stated that, because of this condition, Mrs. Maxwell was significantly disabled for an indefinite period of time, unable to perform housework of moderate severity. This diagnosis was confirmed by Dr. Beach, a neurosurgeon.

Defendants assert that Mrs. Maxwell’s ruptured disc was caused, not by the bus collision, but by a later trauma. No evidence was presented to support this theory. Drs. Ledbetter and Beach agreed that it was impossible to determine whether the herniated disc was caused solely by the accident or whether it was also attributable in part to an aggravation of the arthritic condition. In the latter event, of course, defendants would still be liable since they took the plaintiff as they found her.

Considering the gravity of Mrs. Maxwell’s back condition and its disabling effects, we are unable to say that the. trial judge abused his broad discretion in making the general damage award of $40,000.

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


text:
    Harry E. LINDSTROM, Plaintiff-Appellee, v. Julia ARNOLD, Carolyn K. Arnold, United Services Automobile Association Casualty Insurance Company and Peter Howard, Defendant-Appellant (Plaintiff-in-Reconvention).
    No. 15023.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Writ Denied Dec. 20,1982.

      DeLaune, Blondeau, and Hall by James D. Hall, Bossier City, for plaintiff-appellee Harry E. Lindstrom.
    Sockrider & Bolin by James E. Bolin, Jr., Shreveport, for defendant-appellant (Plaintiff-in-Reconvention), Julia Arnold.
    Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendant-appellant Commercial Union Ins. Co.
    Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer, Shreveport, for defendant-appellant United Services Automobile Association Casualty Ins. Co.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

This is an action for damages arising out of a three car collision. The plaintiff is Harry Lindstrom. The defendants are Julia Arnold, Carolyn Arnold and United Services Automobile Association Casualty Insurance Company, Lindstrom’s liability and uninsured motorist insurer. Julia Arnold reconvened against Lindstrom and US A A, and made a third party demand against Commercial Union Insurance Company, her insurer. After a trial on the merits the district judge found both Lind-strom and Arnold negligent and that Arnold’s coverage with Commercial Union had been terminated at her request. The district judge rendered judgment rejecting the demands of all parties. Arnold appeals.

This appeal presents the following issues: (1) what was the negligence of Lindstrom and Arnold; (2) if Arnold is entitled to recover on her reconventional demand what are her damages; and (3) did Commercial Union have a duty to defend Arnold in this action. The Facts

This accident occurred at approximately 6:30 a.m. on February 7, 1980. The accident occurred in the west bound.lanes of Interstate 20 in Bossier City, Louisiana.

The parties and their respective witnesses disagree as to how the accident happened. Arnold and her witnesses testified that the accident occurred in the manner set out below.

Arnold and Carolyn, her 19 year old daughter, were driving west on 1-20 from their home in Haughton to Shreveport where they worked. They were in Arnold’s white 1966 Mercury. Because of the early hour Arnold had her lights on.

As Arnold and Carolyn drove west through Bossier City the motor of their ear stopped. Arnold attempted to restart the engine as they coasted but could not. She then decided to coast to the next exit and off the highway but was unable to do so. The Mercury came to a stop on a rise in the elevated highway approximately 1,000 feet east of the Hamilton Road exit. At the point where the Mercury stopped the 1 — 20 has four lanes, an exit only lane on the far right and three through lanes. The area was well illuminated by numerous vapor street lights.

The Arnold vehicle stopped in the right center lane just east of the crest of the rise in the highway. After again trying unsuccessfully to restart the engine Arnold got out of the car and opened the hood where she discovered a fire in the engine compartment. Arnold quickly got a piece of cloth out of the back seat and used it to extinguish the blaze.

While the Arnold vehicle was stopped several other cars successfully maneuvered around it. However, Arnold decided that she should remove the vehicle from the highway before the morning traffic became heavy.

Arnold instructed Carolyn to take the wheel while she pushed the ear over the crest of the rise and to steer it to the exit and off the highway when it coasted down the other side. Arnold, who was wearing white pants and a black coat, then went to the rear of the car to push, at which time she noticed that the taillights and right turn signal were all in operation as were the headlights.

Just as Arnold began to push her vehicle she and it were struck from the rear by an Opel driven by Harry Lindstrom. The Opel rebounded from the impact and partially obstructed the left center lane and was there struck by a pickup driven by Peter Howard and the Opel again struck Arnold and her vehicle.

Arnold briefly lost consciousness after being hit the second time and fell to the road surface. Upon regaining consciousness Arnold feared she might be run over by oncoming traffic and rolled herself into the right lane. Approximately five minutes elapsed from the time the Arnold vehicle stopped until the collision occurred.

Arnold’s version of the accident as established by her testimony is supported by the testimony of Carolyn and Edward Boyd, the Bossier City police officer who investigated the accident.

According to Lindstrom the accident occurred in the following manner.

Lindstrom was driving west in the right center lane of 1-20 at a speed of 45-50 miles per hour. There was traffic in the lanes to his left.

Upon cresting the rise in the highway he saw a flash of movement in the road ahead and removed his foot from the accelerator. A “split second” later his headlights revealed an unlighted car with someone at its rear, stopped about 30 feet away. He applied his brakes and downshifted in an effort to stop.

Lindstrom could not change lanes to the left because of traffic and he did not move into the right lane because he believed the pedestrian was moving in that direction. Realizing he could not avoid the collision Lindstrom steered as far left as possible in hopes of avoiding the pedestrian and closed his eyes just before the right front of his vehicle struck the left rear of the Arnold vehicle. Lindstrom’s vehicle was then struck by the Howard pickup and driven into the Arnold vehicle a second time.

Lindstrom’s version of the accident is supported by the testimony of Peter Howard and Howard’s passenger, Wilson White.

Lindstrom brought this action seeking damages for his injuries, the damage to his car and medical expenses. Arnold reconvened against Lindstrom and USAA for damages due to her injuries. Arnold also made a third party demand against Commercial Union for penalties and attorney’s fees for its failure to defend her in this action. The LSU Medical Center intervened to recover the cost of Arnold’s treatment.

The case was tried on the merits and the district judge rendered the judgment complained of. Arnold then took this appeal.

Issue # 1 — Negligence

The resolution of this issue requires two inquiries: (1) was Lindstrom negligent and (2) if so, was Arnold contributorily negligent.

The district judge concluded that both Lindstrom and Arnold were negligent. Regrettably, his brief written reasons for judgment do not set out the basis for these conclusions.

We note that Lindstrom’s version of the accident is inconsistent with the finding that he was negligent. This is so because in Lindstrom’s version he, through no fault of his own, could not see the Arnold vehicle until it was only 30 feet away. We also note that Lindstrom’s version is somewhat inconsistent in that there would have been no need for Arnold to push her vehicle if it had been on a steep down slope as he claimed.

We conclude, in light of the inconsistency of Lindstrom’s version and the trial judge’s finding of negligence on Lindstrom’s part, that the trial judge found that the accident occurred in the manner and at the location described by Arnold. We further conclude that the trial judge must have found Lind-strom negligent in failing to maintain a proper lookout and Arnold negligent in attempting to remove the car rather than warning approaching traffic.

There is substantial evidence to support the trial judge’s apparent factual conclusion that the accident happened as described by Arnold and her witnesses. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Thus we accept the Arnold version of the accident as correct and now turn to the question of the negligence of Lindstrom.

The first duty of a motorist is to maintain a sharp lookout ahead. Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978); Belshe v. Gant, 235 La. 17, 102 So.2d 477 (1958).

An approaching motorist has the duty to discover a stalled vehicle if he can do so with the exercise of the required degree of care. Travelers Insurance Company v. Harris, 294 So.2d 588 (La.App. 4th Cir.1974). Even if an obstruction is illegal motorists are not excused from exercising the required degree of care in observing. Culpepper v. Leonard Truck Lines, 208 La. 1084, 24 So.2d 148 (1945).

Generally, when a following vehicle collides with the preceding vehicle the following motorist is presumed to be negligent and must exculpate himself. Tidwell v. Ocean Systems, Inc., 356 So.2d 466 (La.App. 1st Cir.1977).

The record shows that Lindstrom should have been able to see Arnold’s white car on this well lighted highway at a distance of more than 500 feet. Had Lindstrom been maintaining a proper lookout he would have seen the Arnold vehicle from that distance and he could have easily avoided the accident by either stopping or by slowing to allow the traffic to his left to pass and then changing lanes.

Where, as here, a stalled car could be seen and avoided by the exercise of the appropriate level of care, a driver is negligent in failing to see the vehicle and avoid it. Smiley v. Ellis, 307 So.2d 150 (La.App. 1st Cir.1974), writ refused 310 So.2d 643 (La.1975); cf. Bodan v. American Employers’ Insurance Company, 160 So.2d 410 (La.App. 2d Cir.1964) (failure to keep proper lookout and excessive speed). Thus, we are in accord with the trial judge’s conclusion that Lindstrom was negligent and that his negligence was a cause of the accident.

We now consider whether Arnold was contributorily negligent. The trial judge’s conclusion that Arnold was negligent was apparently based on her failure to warn following motorists.

USAA contends that Arnold was negligent because of her violation of LSA-R.S. 32:141 and R.S. 32:442. This contention is not well founded.

The provisions of R.S. 32:442'relied on by USAA were repealed in 1962. The present provisions of that section are irrelevant to this case.

LSA-R.S. 32:141(A) prohibits parking or stopping on highways outside of residential or business districts. However, that prohibition does not apply where, as here, a vehicle stops on the highway because it is disabled. LSA-R.S. 32:141(B); Mahoney v. Arline, 173 So.2d 346 (La.App. 2d Cir.1965). Thus, there was no violation of § 141(A) by Arnold.

However, USAA contends that Arnold violated her duties under § 141(B) by failing to warn oncoming traffic.

The area of the highway where the Arnold vehicle stalled is elevated and, therefore, has very little shoulder area. The right and right center lanes enter the highway a relatively short distance east of the accident site. Because of the configuration of the highway there was no safe place from which Arnold could have given an adequate warning to the traffic.

Had Arnold stationed herself on the right side of the highway it is highly unlikely that any warning she might have given would have been noticed by vehicles in the two leftmost lanes. Had she stationed herself on the left edge of the highway any warnings would likely have been ineffective to motorists in the two rightmost lanes.

It appears that the only point from which Arnold could have given warnings that would have been effective towards all approaching traffic was at the confluence of the highway and the entrance ramp where the two rightmost lanes joined it. At that point Arnold would have been in a position of extreme danger surrounded by traffic on both sides.

Though traffic was relatively light when her car stalled Arnold knew that it would soon increase. The danger presented by the presence of the stalled vehicle would have increased with the traffic.

In light of these facts and the difficulty of giving an adequate warning Arnold’s decision to attempt to push the vehicle off the highway was reasonable and in accord with the first duty imposed on her by § 141(B) and responded to the danger recognized by the legislature in § 141(A) as well.

Arnold’s duties under § 141(B) were: (1) to remove the vehicle and (2) to “protect” oncoming traffic until she had done so. In attempting to remove the vehicle Arnold was employing the best method available to her to “protect” traffic. Arnold was a large woman and her plan to push the car a short distance to the descent side of the crest in the highway and down the west side of the crest while it was being guided toward the Hamilton Road exit by her daughter was a reasonable plan that would have provided immediate removal of the obstructing stalled car from the 1-20 highway. Arnold’s action fulfilled her obligations under the statute and under these circumstances she cannot be said to have violated a duty to warn approaching motorists while she was attempting to remove the vehicle from the highway.

The district judge was clearly wrong in concluding that Arnold's conduct was negligent. See Arceneaux, supra. As Arnold was not negligent she is entitled to recover and we now turn to the question of her damages.

Issue # 2—Damages

Arnold did not seek to recover for the damage to her automobile. Further, as she was treated at the LSU Medical Center and it has neither appealed nor answered this appeal we cannot make any award for the cost of Arnold’s past medical treatment. Thus, the only items claimed from USAA and Lindstrom by Arnold are general damages relating to her injuries and future medical expenses.

Each personal injury must be evaluated according to its own peculiar facts and circumstances in determining the amount of damages sustained. Profit v. Linn, 346 So.2d 253 (La.App. 1st Cir.1977).

In making an initial award of damages at the appellate level we are not limited to an award of either the highest or lowest amount we would affirm; instead, we set the award in an amount which is just for the damages revealed by the record. Wall v. American Emp. Ins. Co., 377 So.2d 369 (La.App. 2d Cir.1979), affirmed 386 So.2d 79 (La.1980).

The record shows that Arnold was 37 years old at the time of the accident. She earned $3.75 per hour from her employment as a nurses aid.

Arnold suffered numerous injuries in the accident including Colles’ type fractures of both wrists, carpal tunnel syndrome of the left wrist, lacerations and contusions of both legs and mild chondromalacia of the left knee. The evidence shows that Arnold suffered extreme pain following the accident.

The injury to Arnold’s left wrist was so severe that it required surgery for reduction of the fracture, internal fixation of the fracture with a Rush rod and decompression of the median nerve. A second operation was required to remove the rod.

Arnold was hospitalized for a total of fourteen days. Her wrists were placed in casts for five weeks following the accident. During that period Arnold could not feed, clean or dress herself and she even required assistance in all physical activity necessary for her personal hygiene.

Though Arnold underwent physical therapy for her wrists she still suffers pain and a loss of motion in both wrists. She has difficulty performing tasks which put pressure on her wrists, such as sweeping or raking leaves, since the accident.

Since the accident Arnold has been troubled with episodes of vertigo. She has also been left with a large scarred and numb area on her left thigh. She suffers a 20% disability of the left wrist, a 10% disability of the right wrist and a 10% disability of the left leg.

The record shows that Arnold suffered serious injuries which required hospitalization, two surgeries and physical therapy for their treatment. The injuries have caused her substantial pain and gross inconvenience. The injuries have left her with a considerable degree of disability. Under the circumstances we think an award of $45,000.00 is appropriate for past and future pain and suffering, disability, mental anguish and inconvenience.

A claim for loss of earnings need not be proved with mathematical certainty but only by such proof as reasonably establishes the claim. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Loetzerich v. Texas Pacific-Missouri Pac. T.R. of N.O., 325 So.2d 626 (La.App. 4th Cir.1976), writ refused, 329 So.2d 469 (La.1976).

Appellant did not return to work following the accident until April 11, 1981. At that time she obtained part-time work at a nursing home at a lesser wage than she had earned prior to the accident. Arnold testified that because of limited use of her hands she had great difficulty in performing her duties. She was unable to perform some tasks, such as making beds, and was very slow at others, such as changing patients clothes. Arnold stopped working on September 19,1981, because of her inability to properly perform her duties.

Arnold earned approximately $9,000.00 the year preceding the accident. She was unable to work for fourteen months following the accident. At the time of trial her ability to work was substantially diminished by the residual disability from her injuries. In light of these facts Arnold’s request in brief for an award of $20,000.00 for loss of past and future earnings is not excessive and we fix the award in that amount.

We note finally that Arnold’s claim for future medical expenses is too speculative to justify any award.

Issue # S—Duty to Defend

We now consider whether Commercial Union was under a duty to defend Arnold. We conclude that it was not.

The facts relevant to this issue are set out below.

On February 4, 1980, three days before the accident, Arnold purchased a used Plymouth Duster. The seller would not allow Arnold to remove the car from its lot until she had the Duster added to her insurance policy.

Arnold telephoned her insurance agency, Northwest Louisiana Insurance Agency, to arrange coverage. Arnold spoke to Norma Wiggins.

Arnold testified that she instructed Wiggins only to add the Duster to her policy. However, she also admitted that she told Wiggins that she was going to cease using the Mercury because it used too much fuel.

Wiggins testified that Arnold instructed her to add the Duster to her policy and to terminate coverage on the Mercury because it was to be junked. Wiggins sent the changes to Commercial Union later that day.

The Duster broke down on the day Arnold bought it. Therefore, she continued to use the Mercury and was using it on the day the accident occurred.

Arnold argues that, as the Mercury would have been covered if she had not notified Northwest, she should not be deprived of coverage because she had informed Northwest of her purchase of the Duster.

This argument would have more weight if Arnold had only informed her agent of the purchase. However, the trial judge found that she had also instructed that coverage on the Mercury be terminated. There is substantial evidence in the record to support the trial judge’s finding. See Arceneaux, supra.

Insurers are bound by the actions of their agents. Bank of Coushatta v. Thomas, 378 So.2d 1041 (La.App. 2d Cir.1979). Notice of the acquisition of a new car to the insurance agent is imputed to the insurer and sufficient to bind the insurer and provide coverage. Mathews v. Marquette Casualty Company, 152 So.2d 577 (La.App. 2d Cir.1963), writ denied, 244 La. 662, 153 So.2d 880 (1963); Fowler v. Gulf Insurance Company, 306 So.2d 406 (La.App. 3d Cir.1975).

If notice to the agent is sufficient to provide coverage then notice to the agent is sufficient to terminate coverage. We conclude that coverage on the Mercury was terminated on February 4th at Arnold’s request and instruction. For this reason Commercial Union was under no duty to defend her in this action.

For the foregoing reasons the judgment of the district court is reversed insofar as it rejects Arnold’s demands against Lindstrom and USAA and judgment is rendered in Arnold’s favor. We recast part three of the judgment to read as follows:

(3) “That there be judgment in favor of plaintiff-in-reconvention, Julia Arnold, and against defendants-in-reconvention, Harry E. Lindstrom and United Services Automobile Association Casualty Insurance Company, in solido, in the sum of Sixty-Five Thousand ($65,000.00) and No/100 Dollars, with legal interest from date of judicial demand and costs; and rejecting third party plaintiff, Julia Arnold’s, demands against third party defendant, Commercial Union Insurance Company, at her costs.”

As AMENDED the judgment is AFFIRMED.

All costs of this appeal are taxed against Harry E. Lindstrom and United Services Automobile Association Casualty Insurance Company.

      . Hereinafter we will refer to Julia Arnold simply as “Arnold.”

      . Because of our resolution of these issues we find it unnecessary to consider Arnold’s contention that the trial judge allowed improper evidence on rebuttal.

      .We will refer to the exit or rightmost lane as the “right” lane, to the second lane from the right as the “right-center” lane, to the third lane from the right as the “left-center” lane and to the fourth lane from the right or leftmost lane as the “left” lane.

      .Arnold is a very large woman who probably had the strength to push the car.

      . Howard is also a defendant in this action but he was not served and appeared at trial only as a witness.

      . Neither party has seriously suggested any other basis for the trial judge’s findings on negligence.

      . LSA-R.S. 32:141: A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
      B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
      C. The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.

      . We also note that LSA-R.S. 32:368, which now covers the area previously covered by § 442, is not applicable to private automobiles such as those involved here.

      . This concept also underlies our review of damage awards made by trial courts under the rule of Reck v. Stevens, 373 So.2d 498 (La.1979).