author: LOTTINGER, Judge.

text:
    Ronald HINTON v. DAIRYLAND INSURANCE COMPANY, et al. Mable BURTON and Corrine Samuels v. Ronald HINTON and Dairyland Insurance Company.
    Nos. 82 CA 0317, 82 CA 0318.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Milton Osborne Jr., Baton Rouge, for Ronald Hinton.
    Paul Marks, Jr., Baton Rouge, for Dairy-land Ins. Co., et al.
    James R. Coxe, III, Baton Rouge, for Mable Burton and Corrine Samuels.
    R. Michael Caldwell, Baton Rouge, for Dairyland Ins. Co., et al. and Mable Burton.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

These two consolidated appeals arise from an automobile-motorcycle collision occurring on July 4, 1980 at the corner of Fairfields Avenue and East Belfair in East Baton Rouge Parish. The driver of the motorcycle, Ronald Hinton, sued Mable Burton, the driver of the automobile, and her liability insurer, Dairyland Insurance Company. Ms. Burton and her passenger, Corrine Samuels, sued Hinton and asserted uninsured motorists coverage by Dairyland in connection therewith. The trial court found that both Ronald Hinton and Mable Burton were at fault; thus, Hinton’s suit against Ms. Burton and Dairyland was dismissed, as was Ms. Burton’s suit against Hinton and Dairylands (for UM Coverage.) However, in the second suit, Corrine Samu-els was granted recovery against Hinton and Dairyland in the amount of $1,940.00. Ronald Hinton has filed devolutive appeals from judgment in both suits.

The accident occurred while Hinton was following the Burton vehicle in a westerly direction on Fairfields Avenue in Baton Rouge. Ms. Burton testified that she was aware that plaintiff was behind her car on his motorcycle, and that about one-half block away from East Belfair, she activated her left turn signal. When she attempted to turn left onto East Belfair, Hinton’s motorcycle collided with the back door of the Burton vehicle on the driver’s side. Hinton testified that he saw no turn indicator or brake lights emanating from the vehicle. He also testified that prior to attempting a left turn, Ms. Burton slowed down and her vehicle moved to the right as if turning right onto West Belfair, which is offset some distance from the intersection with East Belfair.

The investigating City Police officer testified that when the accident occurred, the Burton vehicle had crossed partially into the oncoming eastbound lane. After the accident the officer found that the left turn signal light was not working; the bulb was partially out of place and the light did not operate until someone jiggled its wire, located in the trunk.

The trial court found that Hinton attempted to pass the Burton vehicle in an intersection in violation of La.R.S. 32:76, subd. A(2), and that same was a contributing cause of the accident. The trial court recognized that the impact might have caused the left turn light on the Burton vehicle to become inoperative; but, on the basis of Hinton’s testimony and that of the officer, found that an inoperative left turn indicator was a contributing cause of the accident, barring Ms. Burton’s recovery. However, since Ms. Samuels was in no way at fault, she was allowed to recover for her injuries, consisting of a hematoma of the forehead, and cervical and lumbar strain.

SPECIFICATIONS OF ERROR

Plaintiff-defendant-appellant, Ronald Hinton, assigns the following specifications of error:

1.

The trial judge committed manifest error in finding that Hinton was negligent and that such negligence was a contributing cause of the accident sufficient to bar his recovery.

2.

The trial judge committed manifest error in not finding that Mable Burton breached her duty as a left turning motorist and that her breach of duty was the sole proximate cause of the accident.

3.

In the alternative, the trial Judge committed manifest error in not finding that Mable Burton had the “last clear chance” to avoid the accident.

I

The trial court found as fact that Hinton attempted to pass at an intersection, in violation of La.R.S. 32:76, subd. A(2), and found such violation was negligence per se. Hinton asserts that the finding of negligence was in error.

Hinton testified at trial that because Ms. Burton’s vehicle moved to the right prior to turning left, he was able to overtake the vehicle without swerving to the left and without changing lanes. He also testified that at all times his motorcycle remained in his lane of travel. Since La.R.S. 32:76 prohibits one from driving his vehicle on the left side of the highway under certain circumstances, Hinton could have conceivably argued that he did not violate the statute because he stayed within the westbound lane.

However, the finding of the trial court that Hinton violated La.R.S. 32:76, subd. A(2) inferentially includes a factual finding that Hinton’s motorcycle crossed over into the eastbound lane. We cannot say that such a finding is manifestly erroneous or clearly wrong, in light of testimony of the attending police officer that the Burton vehicle had partially crossed the center line when the accident occurred. Indeed, appellant’s brief does not take issue with the trial court’s ruling that appellant violated the statute.

It is well-settled that a violation of La.R.S. 32:76, subd. A(2) constitutes negligence per se. Rills v. Southern Bell Telephone Company, 289 So.2d 232 (La.App. 1st Cir.1973); Roy v. Edmonson, 221 So.2d 583 (La.App. 4th Cir.1969); Normand v. American Home Assurance Company, 171 So.2d 804 (La.App. 3rd Cir.1965) writ ref. 247 La. 677, 173 So.2d 542 (1965). This is so regardless of whether Ms. Burton’s left turn signal was inoperative, Roy, supra, LeLeux v. Travelers Insurance Company, 162 So.2d 417 (La.App. 3rd Cir.1964). Hinton argues that there was no showing that such negligence was the proximate cause of the accident. We disagree. Had Hinton waited to pass until after the Burton vehicle cleared the intersection (either by turning in either direction or by proceeding ahead), the accident which resulted would have been prevented, even in the absence of a turn signal. Such accidents are within the scope of protection afforded by La.R.S. 32:76, and the trial court did not err in finding that Hinton’s negligence caused the accident.

II

Hinton argues that the negligence of Mable Burton was the sole cause of the accident. We are of the opinion, under the facts found by the trial judge, that Ms. Burton’s failure to keep operative her turn indicator contributed to the accident, but was not the sole cause of the accident. Just as Ms. Burton’s negligence bars her recovery, Hinton’s negligence in passing at an intersection is a complete bar to his recovery.

III

Hinton asks that the doctrine of “last clear chance” be applied so as to have him prevail in both suits. However, this doctrine, when applicable, represents only an exception to the general rule that contributory negligence bars plaintiff’s recovery; thus, the doctrine cannot operate as a defense for Hinton in the suit against him. For the doctrine to apply, plaintiff must prove: that he was in a position of peril of which he was unaware or from which he could not extricate himself, that defendant actually discovered or should have discovered the peril, and that after discovering the peril, defendant had an opportunity to avoid the accident. Patin v. State Farm Insurance Co., 395 So.2d 466 (La.App. 3rd Cir.1981); Carmouche v. Capitol Transportation Corp., 306 So.2d 907 (La.App. 1st Cir.1974), writ ref. 309 So.2d 681 (La.1975).

Ms. Burton testified that when she activated her left turn signal, she looked into both her rear view and side mirrors. She saw Hinton in the rear view mirror but not in the side mirror. Assuming that he would not attempt to pass in the intersection, Ms. Burton commenced her left turn. Only at this point did Hinton attempt to pass. Thus, at the time Hinton found himself in an inextricable position of peril, Ms. Burton was already executing her turn, and in so doing, could not thereafter have discovered Hinton or reasonably avoided the accident. We therefore find the doctrine of “last clear chance” is inapplicable under the circumstances.

IV

Inasmuch as the trial court found both Hinton and Ms. Burton negligent, and the acts of both contributed to the accident, then vis-a-vis Corrine Samuels, the passenger in the Burton vehicle, Hinton and Ms. Burton were joint tortfeasors. However, as a joint tortfeasor, Hinton is liable in solido to Ms. Samuels, and inasmuch as contribution is not at issue on appeal, we affirm the judgment of the trial court in all respects.

DECREE

Therefore, in No. 82 CA 0317, judgment of the trial court in favor of Mable Burton and Dairyland Insurance Company, dismissing the claim of Ronald Hinton, is hereby affirmed. In No. 82 CA 0318, judgment of the trial court in favor of Corrine Samuels and against Ronald Hinton and Dairyland Insurance Company, and dismissing the claim of Mable Burton, is hereby affirmed. All costs of these appeals are assessed to plaintiff-defendant-appellant, Ronald Hinton.

AFFIRMED.

      . In No. 82 CA 0318, Dairyland moved to dismiss Hinton’s appeal in the suit by Ms. Burton and Ms. Samuels, on the grounds that the appeal was mooted by Dairyland’s obtaining a satisfaction of judgment, releasing it and Hinton, from Ms. Samuels. The motion to dismiss was denied, this court finding that Hinton still had an interest in having overturned the ruling of the trial court that he was negligent. 426 So.2d 192 (La.App. 1st Cir.1982).

      . La.R.S. 32:76 reads:
      “A. No vehicle shall at any time be driven to the left side of the highway under the following circumstances:
      (1)when approaching the crest of a grade or upon a curve in the highway, where the driver’s view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction;
      (2) when approaching within one hundred feet of or traversing any intersection or railroad grade crossing;
      (3) when the view is obstructed upon approaching within one hundred feet of any bridge, viaduct, or tunnel.
      “B. The foregoing limitations shall not apply upon a one-way roadway or a multiple lane highway nor to the driver of a vehicle turning left into or from an alley, private road, or driveway.”


source: Caselaw Access Project

author: SEXTON, Judge. SEXTON, Judge.

license: Public Domain

text:
    Willie ANDREWS, Plaintiff-Appellant, v. PINE HILL WOOD COMPANY, et al., Defendant-Appellee.
    No. 14996.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.
    On Rehearing Jan. 24, 1983.
    Writ Denied March 18, 1983.

      Simmons & Nelson by Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant.
    Dawkins, Coyle & Carter by Michael L. Coyle, Ruston, for defendant-appellee.
    Before PRICE, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

This is an appeal from a worker’s compensation judgment. Claimant-appellant, Willie Andrews, is a 57 year old man who has worked for his present employer — Pine Hill Wood Company (hereinafter referred to as Pine Hill) — for over a decade.

On July 6,1979, claimant Andrews filed a petition with the District Court seeking disability benefits, statutory penalties and attorney’s fees from Pine Hill and its co-defendant, Georgia Casualty and Surety Company (hereinafter referred to as Georgia Casualty), Pine Hill’s compensation insurer, as a result of an accident on August 21, 1978. The defendant denied that claimant had been disabled, in its answer, and further alleged that it had compensated claimant for any absence from work that had been caused by his work-related injuries.

The parties’ claims and defenses were afterwards litigated in piecemeal fashion. Trial was commenced on January 11, 1980, and subsequent to that day was not resumed until June 20, 1980. The trial was completed on that date and the court took the matter under advisement. Prior to rendering an opinion in the case in a Memorandum Order dated April 30, 1981, the trial court ordered that a new trial be held to adduce evidence on the sole issue of the plaintiff’s entitlement to compensation for facial disfigurement. The trial court expressly mandated therein that judgment on all issues be held in abeyance pending the new trial on facial disfigurement. The new trial was conducted on September 8, 1981. At this time, the plaintiff moved to reopen his case in chief in order to present the testimony of one Dr. John E. Hull, and this motion was denied by the court. The trial court finally filed a judgment on December 8, 1981, which denied plaintiff’s claims for disability payments, statutory penalties and attorney’s fees, but granted plaintiff an award of $65.00 per week for 100 weeks for facial disfigurement, subject to a credit of $1,170.00 for compensation payments previously made.

Subsequent to the rendering of this judgment, the court on January 4, 1982, heard additional motions of both parties for a new trial. The court granted a second new trial which was, like the first, restricted to a single issue — the plaintiff’s right to be compensated for past medical expenses. While the trial court denied plaintiff’s motion to hold a new trial on the issue of Mr. Andrews’ disability and restricted the new trial to the issue of past medical expenses, plaintiff’s counsel nevertheless examined Dr. Hull at the January 4th hearing and made a proffer of Dr. Hull’s oral testimony on the subject of disability. Dr. Hull was also cross-examined by defense counsel at the January 4th hearing.

This protracted litigation was brought to a close in a judgment on the new trial filed March 5, 1982. The trial court rendered a judgment affirming the prior judgment in all respects, except that the new judgment awarded the plaintiff $730.00 for past medical expenses. The end result of this fragmented litigation is that plaintiff has been denied disability benefits and statutory penalties and attorney’s fees, but has been awarded $65.00 a week for 100 weeks for permanent facial disfigurement and $730.00 for past medical expenses. Finding merit in plaintiff’s claim of permanent partial disability, we reverse.

There are essentially three issues which are presented for our consideration. The first issue involves the question of whether Willie Andrews has a valid claim to partial permanent compensation benefits as he asserts in brief to us. The second focal question is whether the trial court properly compensated plaintiff for facial disfigurement. The third issue is whether plaintiff is entitled to statutory penalties and attorney’s fees for defendant’s alleged recalcitrance in paying benefits and medical expenses.

I. PLAINTIFF’S CLAIM FOR DISABILITY BENEFITS

We are compelled to reverse the trial court’s finding that claimant is not entitled to disability benefits. This determination is made in full view of the well established principle that factual findings of the trial court in compensation cases are to be deferentially treated.

The parties have stipulated that Mr. Andrews’ injuries, if any, have been incurred within the scope and course of his employment and that these injuries are therefore covered by the workers’ compensation insurance policy issue by Georgia Casualty to Pine Hill.

The accident here occurred on August 21, 1978. On that date, Mr. Andrews sawed down one tree in which, unknown to him, a second tree was lodged, the second tree fell, striking Mr. Andrews across the forehead, upper back and shoulders. The tree which hit Mr. Andrews was big enough to be considered a log — being approximately 18 inches in diameter at its base. Mr. Andrews was knocked off his feet by the impact of the tree and was seen by one of his employees, Joe Bass, Jr., attempting to get to his feet. Mr. Andrews was unable, unassisted, to get back to his feet and Joe Bass “helped got him up and sat him on the log.” Mr. Andrews was bleeding profusely from the forehead. Joe Bass asked Mr. Andrews if he could walk to his truck, and Mr. Andrews responded affirmatively. However when he attempted to walk to his truck, Mr. Andrews “act like he was weak” and Mr. Bass, with the assistance of Mr. Andrews’ son Frank — a co-employee — carried Mr. Andrews to his truck. Mr. Andrews was in the hospital for five days, after which time he was discharged not on doctor’s orders, but because he was impatient to tend to his affairs.

While the events surrounding the injury clearly attest to the severity of the original impact, we are, in analyzing the disability issue, particularly impressed by Mr. Andrews’ willingness to work and the dramatic effect which the trauma had upon Mr. Andrews’ exemplary work habits. Mr. Andrews was not content to merely supervise his employees. He operated a chain saw himself and typically worked seven days a week from sunup to sundown. The testimony establishes not only that Mr. Andrews worked long hours, but that he labored with high intensity during those hours. Spencer Allen, the proprietor of Pine Hill, testified that Mr. Andrews was “one of the best [chain saw operators] I ever seen.” As Mr. Allen testified, claimant has “worked hard,” and the propensity for hard work which was attested to by both the adverse party, Spencer Allen, and by Mr. Andrews’ employees has perhaps been best summarized by Mr. Andrews himself: “I wasn’t faking at all. I’d be more than glad now if I was back able to work like I was in 1978 before that tree hit me. I’m not a begging man. See, I like to work for what I get.”

While the record is unequivocal with respect to Mr. Andrews’ work habits, it is equally clear with respect to the vivid contrast between Mr. Andrews’ pre-injury and post-injury mobility and ability to work. When Mr. Andrews did return he was no longer able, because of substantial pain, to operate a chain saw all day long as he had previously. Instead, he would make periodic attempts to operate his chain saw and would have to quit after twenty or thirty minutes because of the pain he encountered in his chest and upper back. As his employees testified, he would return to his pickup after unsuccessful attempts to operate his saw, and either go home in his pickup or sleep in his truck. The pre-injury/post-in-jury dichotomy between Mr. Andrews’ ability to produce is further emphasized by the fact that prior to the injury, his crew of six sawyers kept two trucks busy hauling wood while now a crew of five requires only one truck.

Mr. Andrews’ work history and the stark contrast in his capabilities before and after his injury constitute the essence of our determination that he has been disabled by a work-related injury. However the law requires, as a general proposition, that compensation claims be supported by objective and medically verifiable physical symptoms. See LSA-R.S. 23:1317. Mr. Andrews’ claim is corroborated by the medical data; although the medical testimony in this case has often been ambiguous with respect to the extent, cause or duration of claimant’s injuries, there has been little equivocation as to the existence of plaintiff’s injuries.

Dr. Wadlington testified that he first examined claimant on the day of the accident and that Mr. Andrews, when admitted, “had suffered a rather extensive laceration and complained of anterior chest cage pain and pain in the left ankle. Dr. Wadling-ton’s final diagnosis was that plaintiff had received, in addition to head lacerations, contusions of the anterior chest cage and left ankle and a fracture of the sternum that was revealed by tomogram x-ray. Although Dr. Wadlington did not feel that claimant was permanently injured, he nevertheless testified that claimant “should eventually be able to return to work” which testimony is important insofar as it very clearly implies that it was the doctor’s belief that Mr. Andrews was not, at the time of the injury, able to work.

Dr. Booth testified that he treated and examined Willie Andrews many times in the 16 month period following the injury. In September of 1979 he treated Willie Andrews for his complaints of “cervical spine pain and thoracic cage pain.” With reference to the sternum injury caused by the accident, Dr. Booth testified that “The anterior chest pains have continued and the patient has not been able to do his regular work and he thinks he should have long since gotten over the pain that he has in chest and he seems to be quite disappointed that he’s not able to do a full day’s work.” Dr. Booth testified, furthermore, that “we explained to the patient that he had attained maximum recovery from the traumatic injury ... and he is just going to have to learn to live with it and do a full days’ (sic) work as he used to.” Implicit in Dr. Booth’s testimony is the doctor’s recognition of the existence of a “traumatic injury.”

The most in depth medical testimony was that of Dr. John Hull, proffered by plaintiff, and excluded by the trial court in its denial of plaintiff’s respective motions to reopen and commence a new trial. Dr. Hull, a qualified rheumatologist specializing in inflammations of the musculo-skeletal system, corroborated the testimony of the other doctors as to the symptomatic and medically verifiable nature of Mr. Andrews’ injury. Dr. Hull, whose testimony was based upon five visits by claimant and extensive x-ray examination, testified that claimant had an “extra bone deposited at the site of the [sternum] fracture and had persistent inflammatory process going on, which I felt was probably related to the injury, probably triggered by the injury” and an “unusual condition called sternocos-toclabicular hyperostosis .... ” Dr. Hull was asked, on cross-examination, whether he would disagree with a diagnosis that plaintiff has not suffered any permanent injuries as a result of the 1978 accident. Stated Dr. Hull:

“Yes, I would. The condition in his sternum is unusual. It is not a condition that occurs following an accident then disappears completely. Not necessarily does that. The nature of this disorder is that it is an inflammatory continuing process that has ups and downs much the same way that other types of arthritis have ups and downs. It — it takes time for the appearance on x-ray. Deposition of new bone and I would not be surprised that a diagnosis of this condition was not made at that time and in addition to that, it’s a very unusual condition and it’s more apt to be in the area of rheumatology than it would be in orthopedics.”

Dr. Hull further amplified the nature of Mr. Andrews’ condition by stating that “[T]here is disability in that there has been a bone disease set up that is a source of pain.... ” Moreover,

“The disability in this case is secondary to a continuing inflammatory process that was found to be active two years after the injury or whatever the period of time was when I first saw him. There was evidence at that time that there was a continuing inflammatory process in the sternum — ”

As we have previously chronicled, Dr. Hull’s testimony was not offered until quite late in the proceedings and was heard as a proffer. We have determined that this testimony should be considered. We are compelled by several factors to assess this testimony on proffer. The most significant of these reasons is the cardinarl presupposition, in workers’ compensation cases, that “The court shall not be bound by technical rules of evidence or procedure other than as herein provided....” LSA-R.S. 23:1317. Section 23:1317 reflects the legislature’s intent, in compensation cases, to materially relax evidentiary and procedural rules and subordinate procedural considerations to the discovery of the truth and the protection of substantive rights. Rhodes v. Keashy-Mattison Co., 110 So.2d 747 (Orl.La.App.1959); McQueen v. Tremont Lumber Co., 151 So. 683 (La.App. 2d Cir.1934); Vignaul v. Howze, 150 So. 88 (La.App. 1st Cir.1933). See also, McDermott v. Cronvich, 379 So.2d 867 (La.App. 4th Cir.1980); Brewton v. L.L. Brewton Lumber Co., 349 So.2d 1364 (La. App. 2d Cir.1977); Geist v. Martin Decker Corp., 313 So.2d 1 (La.App. 1st Cir.1975).

The proof of the relevance, importance and probative value of Dr. Hull’s testimony is in the testimony itself, supra. Dr. Hull’s testimony touches directly upon the point at issue, and does so with depth and precision. Moreover, Dr. Hull’s area of specialization makes him more especially qualified than the other testifying doctors to analyze the medical problems here at issue: as a rhuem-atologist, Dr. Hull specializes in inflammations of joints and muscles. It should be -noted that we consider this evidence in part, because — even though it was proffered at a very late stage of the litigation— there is to our knowledge only a single rhuematologist in all of northeast Louisiana, and the services of this specialist were thus understandably difficult to procure.

We therefore believe that the spirit of our compensation law and jurisprudence requires us, in the interest of justice, to consider the tardy testimony of a particularly well qualified specialist which sheds clear light on the analysis of other physicians in the case who do not enjoy his special expertise. See Beard v. Coal Operators Casualty Co., 61 So.2d 255 (La.App. 2d Cir.1952).

However, Pine Hill has urged that claimant’s present difficulties are a result of an arthritic condition which existed long before the accident in 1978.

Pine Hill is correct in asserting that plaintiff has had a long history of arthritis-related aches and pains. There was some testimony, although not uncontradicted, that plaintiff complained of pain before the tree fell on him in 1978. It is also unquestioned that plaintiff sought and received medical treatment for arthritic symptoms on many occasions in the decade preceding the incident in 1978. The general thrust of the medical testimony presented at trial is that claimant was afflicted, prior to his traumatic injury, with an arthritic and degenerative deterioration of the cervical and dorsal spine.

The medical documentation of a preexisting arthritic condition, however, is not inconsistent with our finding that Willie Andrews was disabled on August 21, 1978, when a tree fell on him.

Dr. Booth, who had treated claimant for many years prior to the injury, testified that while Mr. Andrews had complaints of pain in the chest or sternum area, he did not have these complaints prior to the accident. He stated that the chest pains Mr. Andrews was experiencing were not the type generally associated with arthritis.

Dr. Cline testified that claimant “has preexisting arthritic and degenerative changes in the cervical and dorsal spine which have been temporarily aggravated by the blow [on August 21, 1978] to the neck and the upper back.” Dr. Booth concurred in the prognosis and stated that the type of injury received by plaintiff was such as could aggravate a pre-existing arthritic condition. Dr. Hull testified that he associated claimant’s sternum problems with the injury, and that plaintiffs disability resulted as much from the fracture of the sternum as from any problems stemming from arthritic stiffness in his neck.

Causation constitutes the crux of this case, and a careful reading of the record compels the conclusion that Mr. Andrews’ present debilitated condition was triggered by the impact of the falling tree; causation, in a word, has been amply demonstrated. The graphic manner in which the falling tree reduced Mr. Andrews’ working capabilities—as well as the recognition by the medical experts that the incident contributed to his present difficulties—compels us to assert that Mr. Andrews was disabled by the falling tree. We reject defendant’s contention that claimant was disabled by a pre-existing arthritic condition for the simple reason that, whatever aches and pains Willie Andrews had before being struck by a tree, they were in no wise sufficient to stop or impede his diligent—indeed, relentless—labors. How could a man proceeding at a breakneck pace be, under any meaningful sense of the word, “disabled?”

The fact that claimant has long had arthritis does not mitigate his cause of action. It is well settled that a pre-existing arthritic condition does not preclude recovery; to the contrary, there is a cause of action, under workers’ compensation law, for the aggravation of a pre-existing arthritic condition. Clement v. Fidelity & Casualty Co. of New York, 220 So.2d 575 (La.App. 3d Cir.1969); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973); Kennedy v. Calcasieu Paper Co., 262 So.2d 800 (La.App. 3d Cir.1972); Parish v. Fidelity & Casualty Co. of New York, 124 So.2d 234 (La.App. 2d Cir.1960); Williams v. Hudson East, 261 La. 959, 261 So.2d 629 (1972).

We have placed considerable reliance on Dr. Hull and his special expertise. This is in accordance with the jurisprudential rule that courts may give due emphasis to medical specialists when their expertise, qualifications, and knowledge of the claimant’s condition justify this special reliance. See Reeves v. Russo, 302 So.2d 332 (La.App. 1st Cir.1974); Allen v. Early Co., 300 So.2d 518 (La.App. 2d Cir.1974), writ refused 302 So.2d 623 (La.1974).

Thus we assess plaintiff’s disability as one of a partial nature, as per LSA-R.S. 23:1221(3), in accordance with plaintiff’s assertion in his first specification of error. Our review of the evidence—particularly the testimony of Dr. Hull which we have determined to consider—convinces us that this assertion is correct.

II. PLAINTIFF’S CLAIM FOR FACIAL DISFIGUREMENT

Defendant contests, on appeal, the trial court’s award of $65.00 a week to claimant for facial disfigurement. The trial record establishes that claimant suffered, as a result of his work-related injury, an L-shaped scar approximately two inches long above his left eyebrow as well as a second scar running from the top of his forehead back into his receding hairline. This facial scarring was accompanied by the severance of a nerve and many months of numbness and loss of normal sensation.

LSA-R.S. 23:1221(4)(p) authorizes the payment of benefits for serious, permanent facial disfigurement. There was little question, among the medical experts, that his scarring would for the most part be permanent. The record does not indicate that the trial court’s factual findings were manifestly erroneous; to the contrary, the trial transcript is firmly supportive of the trial court’s findings in this respect. Accordingly, we affirm the trial court’s award of $65.00 per week for 100 weeks under LSA-R.S. 23:1221(4)(p) for facial disfigurement.

III. PLAINTIFF’S CLAIM FOR STATUTORY PENALTIES AND DISABILITY BENEFITS

LSA-R.S. 22:658 mandates that insurers shall pay a 12% statutory penalty and attorney’s fees for a failure to pay claims due within 60 days of demand when such a failure is arbitrary and capricious or without probable cause. This statutory mandate encompasses compensation insurers, and is thus applicable in all instances in which employers secure compensation coverage, rather than providing such coverage themselves. We find that claimant is entitled to an award of attorney’s fees and statutory penalties on $730.00 in unpaid medical expenses, and in this respect reverse the holding of the trial court.

The evidence adduced at the trial level established that Willie Andrew was specifically authorized by his employer and his employer’s insurer to enter Union General Hospital in September of 1979 for medical treatment. The bill for this medical treatment, for which the trial court found the defendant liable, was sent to Willie Andrews. Willie Andrews presented this bill to his employer, and on at least one other occasion presented a monthly statement from the hospital which indicated the amount was still unpaid. Mr. Andrews testified that on the occasions he presented the bill — or a statement thereof — to his employer Mr. Allen, Allen stated that he would forward the bill to the insurer for payment. Mr. Andrews eventually stopped presenting monthly statements of the same bill because of the insurer’s continual refusal to pay them. This bill in the amount of $730.00 was not paid until the time of trial and the record reveals no basis for the failure to pay this expense.

Accordingly we hold that the plaintiff is entitled to 12% penalty on this expense only, which amounts to $87.60, and we assess attorney’s fees in this regard at $1,500.00. Simon v. Commercial Union Assurance Company, 389 So.2d 1367 (La.App. 3d Cir.1980).

We find that plaintiff did not adequately establish that defendant was arbitrary and capricious in discontinuing claimant’s disability benefits. The record indicates that the defendants were aware that the plaintiff had returned to the woods in a supervisory capacity and was doing some work. Furthermore, they were in receipt of a release from at least one physician. Considering all of the information at their disposal, we are not able to say that the insurer was arbitrary in discontinuing disability benefits.

SUMMARY AND DECREE

In summary we have found that the claimant is permanently partially disabled in accordance with LSA-R.S. 23:1221(3) and is thereby entitled to $130.00 per week. We have also found that the trial court was not manifestly in error in holding, pursuant to LSA-R.S. 23:1221(4)(p), that claimant had suffered a specific schedule loss, was permanently disfigured and thus entitled to $65.00 a week for 100 weeks.

Likewise we have affirmed the trial court’s award of $730.00 in medical expenses which was not contested here, but have found defendants arbitrary and capricious in failing to timely pay that sum, and have awarded 12% penalties thereon ($87.60), together with $1,500.00 in attorney’s fees with respect thereto.

The record reveals that subsequent to his injury and having been paid $1,170.00 in weekly benefits in the amount of $130.00 per week the plaintiff returned to work on October 29, 1978. It will be recalled that this injury occurred on August 21, 1978. The record shows that plaintiff received from Pine Hill Lumber Company over $196,000.00 in “wages” during 1978, and in 1979 received over $191,000.00. Plaintiff testified that he sold his logging “business” to his sons in January of 1980 for $75,-000.00, on credit, which he had not received at the time of trial. Presumably he continued to earn through January, then, at approximately the same rate as during 1978 and 1979. Of course, as a partially disabled individual the plaintiff is entitled to % of the difference between what he was earning at the time of the injury and any lesser amount which he made thereafter. LSA-R.S. 23:1221(3). The difference in earnings between 1978 and 1979 was approximately $4,700.00, although it is unclear how much plaintiff earned in 1978 subsequent to the injury as contrasted to prior to the injury. Since the difference in earnings in the two years is nearly the same, presumably plaintiff’s earnings were about the same before and after the injury. This difference of $4,700.00 amounts to approximately $90.00 per week, % of which is less than the $65.00 benefit for disfigurement. Of course, then, the disability benefit is the higher amount during the period plaintiff was not working.

The grant of compensation benefits, where a claimant is entitled to receive benefits for both a permanent partial disability and a specific schedule loss, is governed by the Supreme Court’s recent pronouncement in Jacks v. Banister Pipelines America, 418 So.2d 524 (La.1982). Under the rationale of Jacks, a compensation claimant suffering from a partial disability and a specific schedule loss may not simultaneously receive both types of benefits, although such a claimant is entitled to receive each week the remedy which is more favorable for that particular week. As we have stated, plaintiff’s permanent disfigurement award of $65.00 a week is greater than the plaintiff’s disability entitlement during the period he was working.

Having determined that the disfigurement award is more favorable during the weeks in which claimant was working and that the disability award is more favorable during those weeks in which claimant was not working, and that Jacks dictates that claimant be each week given the award which is most favorable for that particular week, it is now incumbent that we delineate the time periods in which plaintiff was gainfully employed.

As we have stated, the record reveals that claimant did not return to work, subsequent to the injury on August 21, 1978, until October 29th of the same year. The defendants paid disability benefits during that time. The record further indicates that claimant was working — albeit in a supervisory capacity — from October of 1978 through January 1980. Our review of the record does not indicate that claimant was thereafter gainfully employed.

It is ordered that upon the finality of this judgment defendants are to compensate plaintiff in a lump sum for those sums past due; i.e., (1) $65.00 per week from the time benefits ceased in October 1978 through January 1980 (representing facial disfigurement) and, (2) thereafter for $130.00 per week (representing partial disability), until current. Plaintiff is awarded legal interest on all unpaid sums. Subsequent to making the compensation current the defendants are ordered to pay plaintiff $130.00 per week as compensation for the duration of 450 weeks. This 450 week period is reduced by the nine weeks during which compensation has already been paid, and is further reduced by each week any benefits (disfigurement or disability) are paid in accordance with this judgment to rriake compensation current.

Furthermore there is judgment for plaintiff in the amount of $730.00 in medical expenses together with legal interest thereon, and for 12% penalties thereon, and $1,500.00 attorney’s fees with respect thereto.

All costs are assessed to defendants.

REVERSED IN PART AND AFFIRMED IN PART AND RENDERED.

Before PRICE, HALL, FRED W. JONES, Jr., SEXTON and NORRIS, JJ.

ON REHEARING

SEXTON, Judge.

We granted a rehearing herein to consider the defendant’s contention that we were in error in rendering judgment for the plaintiff rather than remanding for additional evidence. This issue was precipitated by our consideration of the testimony of Dr. Hull which had been taken in the trial court only as a proffer on a motion for a new trial. This testimony was a significant factor in our original opinion.

While we agree that the defendant has a strong argument that the cause should have been remanded for consideration of any available testimony to rebut Dr. Hull, we have determined to reinstate our original opinion. Our reasons for so doing are that: (1) Courts of Appeal are called upon to render rather than remand where the record is as complete as possible, Boyette v. Auger Timber Co., 403 So.2d 800 (La.App. 2d Cir.1981); Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980); (2) Dr. Hull’s expertise is of an unusual nature in that he is the only such specialist in northeast Louisiana; (3) this litigation is already unusually protracted as can be seen from our recitation of facts in the original opinion; and most importantly, (4) this is a compensation case in which there are no technical rules and in which the law calls for the courts to decide the cases on the merits “as equitably, summarily and simply as may be.” LSA-R.S. 23:1317.

We have therefore narrowly determined that the cause should be rendered and we herewith reinstate our original opinion.

      . We are disposed of the view that the spirit of the 1975 changes in our compensation law embodied in LSA-R.S. 23:1221(3) allowing a partially disabled claimant % of the difference between what he made prior to injury and that earned after the injury assumed that any difference was precipitated by the injury. In this case the slight reduction In plaintiffs income had to do with poor weather and a “falling out” plaintiff had with his sons. However, since the disfigurement benefit is higher, and Jacks, supra, holds that a plaintiff is entitled to this benefit even when he is working, this view has no significance in this case.


author: GARRISON, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Floyd Smith v. Harry HOERNER, George Bowie, Caterina Summers, Scotty Tubbs and Gail Jenkins.
    No. 12059.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Feb. 24, 1983.
    Writ Denied April 15, 1983.

      Jackson & Stovall, John J. Jackson, III, New Orleans, for plaintiff-appellant.
    Drury & Lozes, Felicien P. Lozes, New Orleans, for defendants-appellees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered in accordance with a jury verdict dismissing all claims resulting from a multi-vehicle collision which occurred on January 3, 1978. From that judgment, which we affirm, Dr. Harry Hoerner perfected this appeal.

The collision occurred on a clear day on Interstate 610 near the Interstate 10 junction. All vehicles were proceeding in the same direction. A disabled Toyota was parked in the emergency lane of said highway and its driver flagged vehicle # 1, a wrecker driven by George Bowie. The wrecker apparently had stopped and was proceeding to back up to assist the Toyota when vehicle # 2, driven by Dr. Hoerner, came to a squealing stop behind the wrecker. There exists contradictory testimony as to the exact location of the vehicles prior to the collision. Thereafter, vehicle # 2 was rear ended by vehicle # 3, which was driven by Caterina Summers. Vehicle # 3 was then involved in a collision with vehicles # 4, # 5 and # 6. Vehicle # 4 was driven by Floyd Smith. Claims by the drivers of vehicles # 5 and # 6 have been settled.

The instant case was tried before a jury which, in answer to special interrogatories, determined the following:

(1) that Dr. Hoemer was negligent and that his negligence was a cause of the accident;
(2) that Caterina Summers was negligent and that her negligence was a cause of the accident; and
(3) that George Bowie was not negligent.

The standard of appellate review of facts is provided for in La. Constitution of 1974, Art. 5 § 10(B):

“Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.”

As an aid to the exercise of the appellate function of a review of the facts, the Supreme Court in Davis v. Owens, 368 So.2d 1052 (La.1979) reiterated the following:

“In reviewing the questions of fact and conclusions of fact involved in this suit for damages, the Court of Appeal is mandated to leave undisturbed factual findings of the trial court based upon evidence which furnishes a reasonable factual basis for those findings, unless it finds manifest error. ‘Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where 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.’ Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). If, however, the appellate court concludes that the trial court’s factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

With these principles in mind, we proceed to review the facts and circumstances in the instant case.

The focal point of this factual dispute is the exact location of the vehicles prior to the collision. There exists inconsistent testimony as to this factual determination.

According to the testimony of George Bowie (vehicle # 1), after he saw the disabled car, he proceeded to put on his emergency flashers, slow down and stop 4 to 5 feet before the end of the emergency lane, leaving his left front tire on the emergency lane line and his left fender over said line into the right travel lane. After stopping, he put the wrecker in reverse while looking into his rear view mirror, and saw Dr. Hoerner come to a squealing stop behind him and to the left of the wrecker. More specifically, Dr. Hoemer’s right front fender was just inside the wrecker’s left bumper. Bowie further testified that Dr. Hoer-ner would have had room to pass him without having to change lanes.

In contrast, Dr. Hoerner stated that he was traveling 50 miles per hour in the right lane when he sighted the disabled Toyota and the wrecker. At the time of sighting, the two vehicles were approximately V2 mile ahead of Hoerner and in the right travel lane. In addition, he testified that the wrecker came to a stop in the right travel lane and appeared to be preparing to back up to assist the disabled car when Hoemer came to a squealing stop several feet behind the wrecker. Hoerner stated his vehicle stopped totally within the right travel lane. Hoerner further stated he checked his mirror prior to stopping in order to determine if he had traffic clearance to go around the wrecker. Thereafter Hoerner’s vehicle was rear ended by vehicle # 3 driven by Cateri-na Summers.

Further contradictory testimony was illic-ited from Caterina Summers who testified that she was traveling 40 miles per hour in the left lane. She was approximately 50 feet away when she saw Dr. Hoemer try to merge into her lane. She stated that she put on her brakes and slid into his left rear end. After spinning clockwise, her vehicle was involved in three other collisions. She stated that both the wrecker and Dr. Hoer-ner’s vehicle were in the right travel lane; however, the tire of the Hoemer vehicle was in her lane.

Floyd Smith, driver of vehicle # 4, testified that he observed both the wrecker and Dr. Hoemer’s vehicle stopped partially in the emergency lane and partially in the right lane. Thereafter he witnessed Cateri-na Summers’ vehicle rear end Dr. Hoemer’s vehicle. He further stated that Summers took no evasive action.

George Bowie, Dr. Hoerner and Caterina Summers were each given traffic citations. It is well established that under Louisiana law the violation of a traffic ordinance is negligence per se but this presumption is rebuttable. For such negligence to bar recovery it must have been a proximate cause of the resulting collision.

In Laird v. State Farm Insurance Co., 290 So.2d 343, 347 (La.App. 4th Cir.1974); rehearing denied 1974; writ refused 1974, this court stated:

“In accordance with the method outlined in Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (La.1970) we determine legal cause by first determining whether the act complained of was a substantial factor in causing the accident, then by determining what duty was imposed and whether the risk created by a breach of that duty was one for which the statute intended to offer protection and finally by determining whether there was a breach of that duty.
“Every act leading up to an accident is not a cause-in-fact; to be deemed a legal cause, the act must be a substantial factor without which the accident would not have occurred.”

Before applying the above methodology to the facts at hand we must first look to these pertinent provisions of Louisiana’s Highway Regulatory Act which provides:

“Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
“(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” R.S. 32:79.
“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” R.S. 32:81.
“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 clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
“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.” R.S. 32:141.

Additionally, under the traffic laws of Louisiana, a motorist is required to maintain reasonable vigilance or “to see that which he should have seen” and to exercise reasonable care.

It is firmly established that the operator of a following vehicle is required to keep his car under control, to observe closely a forward vehicle, and to follow at a safe distance. If a rear end collision occurs, the following motorist is presumed negligent. In Viator v. Gilbert, 206 So.2d 106, 109 (La.App. 4th Cir.1968), we stated that:

“When the lead vehicle makes a sudden stop, or one in order to execute an illegal maneuver, but the operator of a second vehicle is able to bring his car to a stop without a collision, the first driver is not liable if a third vehicle collides with the second. See Gandy v. Arrant, La.App., 50 So.2d 676; Hernandez v. Pan American Fire and Casualty Co., La.App., 157 So.2d 923.”

In order for the following motorist who collides with a preceding vehicle to exculpate himself, he must show that he kept his vehicle under control, that he closely observed the forward vehicle, that he followed at a safe distance under the circumstances, or that the driver of the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid.

In light of the foregoing, it is upon the facts as presented in this litigation that we must review the determinations of causation.

The jury found that George Bowie was “not negligent which was a cause of the accident (sic).” We agree. Though Bowie received a traffic citation which is negligence per se, he was not the cause of the accident. He merely stopped to assist a disabled automobile. The jury either found that the wrecker was not parked in the right travel lane, or if some part of it was, then there was still sufficient clearance for Dr. Hoerner to proceed safely around the wrecker. It would appear from the testimony and evidence that all parties sighted both the wrecker and the disabled vehicle in time to avert said collision had they used due diligence. The evidence furnishes a reasonable factual basis to support the jury’s findings and is not manifestly erroneous.

As pertains to Dr. Hoerner, the jury found him to be contributorily negligent and that his negligence was a cause of the collision, hence recovery is barred. From the contradictory testimony illicited at trial, the jury could find Dr. Hoerner contributo-rily negligent in any or all of the following: in following too close; in failing to maintain proper vigilance; in traveling too fast under the circumstances; in not seeing what he should have seen under the circumstances; in stopping in the right lane of traffic; or in obstructing a portion of left travel lane.

We agree with the jury’s finding, that his actions were a cause of the collision and that but for his negligence in following too close, this accident would not have occurred.

R.S. 32:81 imposes a duty on a motorist not to follow another vehicle closer than is reasonable and prudent, having due regard for the speed of such vehicle, the traffic conditions and the condition of the highway.

When Dr. Hoerner violated the statute he created the exact risk the statute was designed to prevent.

We agree with the jury’s determination that Dr. Hoerner’s dereliction was a substantial factor in causing the accident, that the statute imposed a duty upon him not to follow too close, that he breached that duty and that his breach created a risk which was within the scope of protection intended by the statute.

Hoerner’s reliance on the sudden emergency doctrine is misplaced. The doctrine has been used to excuse a motorist’s actions which, after sufficient reflection, prove to be a poor choice of alternatives. However, this doctrine does not excuse improper vigilance, following too close, failure to see an emergency situation in sufficient time to avert a collision, or creation of the emergency by his own negligence.

Under any version of this collision, Caterina Summers was contributorily negligent and a cause of the collision. When she reached the incline there was nothing to obstruct her view of the wrecker and Dr. Hoerner’s vehicle. Had she been keeping a proper lookout, been alert, and not followed so close, she would have seen the stopped vehicles in time to stop or to safely change lanes. She did not rebut the presumption of negligence that exists when a motor vehicle rear ends another. Likewise, her reliance on the sudden emergency doctrine is unfounded as she caused her own emergency situation.

Furthermore, Summers’ inattention was a cause in fact of the accident. The breach of her duty to observe what she should have seen created a risk of colliding with this traffic obstruction, thereby making her legally liable for the resulting collision.

The jury found that the combined negligence of Dr. Hoemer and Caterina Summers was such that but for their negligence, the accident would not have occurred. We find this clearly established by a preponderance of the evidence.

Accordingly, under our scope of appellate review where there is conflicting testimony and reasonable evaluations of credibility, reasonable inferences of fact shall not be disturbed upon appeal absent manifest error. We find no manifest error.

For the reasons discussed the judgment of the district court is affirmed.

AFFIRMED.


author: AUGUSTINE, Judge.

text:
    Helen A. HILL, et als. v. LOUISIANA STATE DEPARTMENT OF HIGHWAYS. Leo R. WOOLVERTON v. Victoria PARKER, John Doe Parker, Haywood Williamson, State of Louisiana, Department of Highways, Government Employees Insurance Company and Hartford Accident and Indemnity Company.
    Nos. 13127, 13128.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Feb. 24, 1983.
    Writ Denied March 18, 1988.
    Edwin R. Fleischmann, Jr., Jerald N. An-dry & Gilbert V. Andry, III, New Orleans, for Helen A. Hill, et al, plaintiffs-appellants.
    Christopher E. Lawler and Robert C. Stern, Donovan & Lawler, Metairie, for Leo Woolverton, plaintiff-appellant.
    W. Monroe Stephenson, New Orleans, for Victoria Parker, defendant-appellant.
    David W. Robertson, Susan M. Theisen, Gravel, Robertson & Brady, Alexandria, for Plaquemines Parish Commission Council, third-party defendant-appellee.
    Philip K. Jones, Norman L. Session, Marshall W. Wroten and Jesse S. Guillot, New Orleans, for Louisiana Department of Highways, defendant-appellee.
    Alan Dean Weinberger, Hammett, Leake & Hammett, New Orleans, for GEICO, defendant-appellant.
    S. Daniel Meeks, Hebert & Abbott, New Orleans, for Hartford Acc. & Indem. Co., defendant-appellant.

      Before GULOTTA, KLEES and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

The single question upon which this appeal turns is whether the trial court erred in finding that the automobile collision which resulted in plaintiff’s injuries was not caused by the condition of the roadway, but rather by the defendant’s negligence. Such questions of fact are to be resolved with considerable deference to the trial court, whose findings we will not disturb in the absence of manifest error. Arceneaux v. Dominque, 365 So.2d 1330 (La.1979).

Louisiana Highway 23 is the main artery between New Orleans and the smaller towns scattered along the west bank of the Mississippi River toward the south, the record abundantly establishes that many sections of the road are in constant disrepair; the area just north of West Pointe-a-la-Hache is particularly known among residents as a challenge to automotive engineering, given the frequency with which its potholes cause wheel rims to buckle and tires to blow out.

On September 14, 1977, heavy rains had fallen in the area around West Pointe-a-la-Hache, causing driving conditions to be something less than ideal. Just north of the point where an elevated gas pipeline crosses above the highway, rainwater collected upon the road in a long pool which covered most of the southbound lane.

The accident which gave rise to this litigation occurred when Victoria Parker, driving southward in a borrowed 1975 Dodge, entered the pool of rainwater and lost control of the vehicle, spinning across the road into the north-bound lane, the path of plaintiff Leo R. Woolverton. In the ensuing collision, Mr. Woolverton was severely injured.

Woolverton’s suit for damages named Victoria Parker and the State of Louisiana as the principal defendants. Plaintiff alleged that Parker’s negligence consisted of, among other things, proceeding at an unreasonable rate of speed under the circumstances. Woolverton also charged the State of Louisiana with negligence in allowing the Highway 23 to be maintained in a hazardous condition, and further alleged that a proximate cause of the collision was the defective condition of the roadway. Similarly, defendant Parker sought to avoid liability by contending that the accident was not caused by any negligence on her part, but by a defect in the road — a pothole— which threw her vehicle out of control.

Following trial on the merits, the trial court awarded plaintiff a judgment against Victoria Parker, finding that her negligence was the sole cause of the accident. Consistent with that determination, the court dismissed plaintiff’s suit against the State of Louisiana. This appeal followed, prosecuted by both the defendant Parker and the plaintiff Woolverton, both of whom are interested in establishing that the primary cause of the collision was the defective condition of Highway 23.

With particular regard to the issue of causation, the record discloses the following:

Victoria Parker testified that at about 3:15 p.m. on September 15, 1977 she was driving south on Highway 23, returning to her home in Empire, Louisiana from Gret-na, where her passenger Helen Hill had visited the doctor. A steady rain and bumpy, road accompanied them the entire way. As Parker approached the overhead pipeline near West Pointe-a-la-Hache, she observed the car in front of her veer into the northbound lane to avoid an elongated puddle of water. Seeing this, Parker said, she slowed to a speed of about fifteen miles per hour and proceeded into the puddle. Within three or four seconds after entering the water, she felt a jolt and heard a loud bang — according to Parker, the effect of hitting a large pothole. The car then spun into the northbound lane and collided with the vehicle driven by Leo Woolverton. Parker contends that the submerged pothole was the cause-in-fact of the accident.

Parker’s guest passenger, Helen Hill, similarly testified that shortly after Parker slowed to enter the water, “it just felt like the whole bottom of the car was on the highway, and the car just went out of control...”. Tr. 97.

Rose Riley was also a passenger in Parker’s car that day. She testified that she had been napping in the back seat on the way home but had woken up just before the accident. She recalled asking Parker why she was driving so slowly. Parker’s response was that, “They were working on the highway — and water.” Tr. 111. Riley also testified that immediately before the collision, the automobile felt and sounded like it hit a hole.

James Riley (Rose’s cousin) testified that on the morning after the accident, he was travelling on Highway 23 and came upon the site of the collision. As he drove slowly past the point of impact, Riley said, he observed near the centerline of the highway a depression about two feet wide and eight inches deep.

The testimony of these witnesses was supported by that of Cornell Latham, Chairman of the Plaquemines Parish Chamber of Commerce in 1976, who testified that while occupying that office, he had sent formal correspondence to the Louisiana Department of Highways informing that agency of the poor condition of Highway 23, and notifying them that he had received complaints from several citizens concerning potholes and rough spots. Latham testified that his own automobiles were constantly being knocked out of line by the condition of the road. He recalled that in June, July and August 1976, the Chamber of Commerce met and discussed the unsatisfactory repairs that had been performed on Highway 23, specifically, the fact that potholes had been filled with asphalt which had a propensity to wash away during a hard rain.

The deposition of Louisiana State Trooper Robert Maddolozza confirmed Latham’s testimony, describing as it did the hazardous condition of the road on the day of the accident. Maddolozza supervised investigation at the scene, arriving there approximately twenty-five minutes after the collision. He described the road surface just north of the impact point as generally rough and uneven, marked by depressions where the pavement had sunk in. He stated that motorists along that strip of highway frequently lost hubcaps or had tire blowouts, and recalled having investigated several accidents in the same vicinity.

The foregoing summary presents appellants’ strongest case for the existence of an accident-causing hole on Highway 23. The persuasiveness of appellants’ contentions, however, presupposes the credibility of three witnesses whose interest in the outcome of this litigation is undeniable. The trial judge apparently did not regard their testimony as credible, and we cannot say he was manifestly erroneous in that. We have reviewed the film submitted in evidence and find, as the trial judge did, that although it does show that the highway where this accident occurred is rough and uneven, the culprit pothole is conspicuously absent — nor is there any other observable condition depicted by the film which might cause a reasonably careful driver to lose control of a vehicle while driving at a prudent speed. We also consider it significant that there was no evidence whatsoever of damage to the front tires or wheel rims of Parker’s automobile. Moreover, Trooper Maddolozza admitted under cross-examination that he made no inspection of the road surface underneath the water to determine whether there were any potholes or cracks which might have caused the accident. In short, other than testimony concerning the condition of the road in general, there was no objectively verifiable evidence of the specific defect which appellants claim to have existed. Given the relative ease with which such evidence — had it existed — could have been collected and preserved, we think its absence is a deficiency which tends to impeach the testimony of appellants’ witnesses. The trial judge therefore did not commit manifest error in disbelieving their testimony. Absent a showing of manifest error, we shall not disturb the trial court’s findings of fact. Canter v. Koehring. 283 So.2d 716 (La.1973).

We agree with the trial court that the most likely cause of the accident was Parker’s negligence. We note that she was unlicensed, probably inexperienced, and driving a borrowed automobile whose handling characteristics were unfamiliar to her. Even under the best conditions, such a driver would have been at some disadvantage; the trial court found that given the driving conditions of September 15, 1977, Parker’s “disadvantage” constituted negligence and caused a collision. We find no manifest error in that determination.

For the reasons assigned, the judgment of the trial court is affirmed.

AFFIRMED.

      . In so alleging, plaintiff invoked strict liability under Art. 2317 of the Louisiana Civil Code, as interpreted by Loescher v. Parr, 324 So.2d 441 (La.1976) and its progeny.


text:
    Mrs. Coralee Leard SABRIER v. Annie Ruth Holt LEARD, Testamentary Executrix of the Succession of Albert Robert Lea Leard, A/K/A, Albert Lee Leard, A/K/A, Albert L. Leard.
    Nos. 12854, 12855.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 1982.
    Rehearing Denied Feb. 24, 1983.

      William L. Crull, III, Dymond, Crull & Castaing, Robert E. Jeffers, Jr., Yoelker & Jeffers, Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for plaintiff-appellee.
    A.D. Freeman and Kent Satterlee, Jr., of Satterlee, Mestayer & Freeman, New Orleans, for defendant-appellant.

      Before AUGUSTINE, CIACCIO, and SCHOTT, JJ.
   AUGUSTINE, Judge.

This appeal concerns the validity of an authentic act of conveyance by which the succession of Albert L. Leard claims title to certain immovable properties located in the City of New Orleans.

In 1967, four years prior to the disputed conveyance to Albert, Katie Miller sold the same properties to her sister, Mary Leard, Albert’s mother. The act of sale was in authentic form and recited a consideration of $50,000.00.

On July 5,1971, Mary executed a counter letter, also in authentic form, which declared that the true owner of the immova-bles was Albert Leard. Mary renounced all interest in the property, stating that her sister Katie had earlier placed the property in her name for the account of Albert Leard, and further, that the earlier conveyance contained a false recital of consideration. The counter letter also defined Mary’s true relationship to the property as merely that of an agent for Albert in “holding said property, collecting rents on his behalf until such time as it was convenient to place the property in the name of the true owner,” it being “always the intention of Mrs. Katie Seary Miller that Albert L. Leard would have complete and sole title and ownership of said property whenever it became convenient for him to place said ownership in his name.” The counter letter concluded with a declaration of Mary’s intent to transfer title to Albert when called upon by him to do so. The letter was recorded on the public records on July 21, 1971. Pursuant to the counter letter, Mary executed an act of conveyance on August 5, 1971, transferring the property to Albert. As before, the act was in authentic form and reveals no technical deficiencies.

Katie died within a year after the conveyance to Albert. She was elderly, and at the time of her death, had been a resident at a nursing home across the river from New Orleans for two years.

Albert died unexpectedly on October 24, 1977, six years after the signing of the counter letter and the second conveyance. His widow, Annie Leard, was appointed testamentary executrix in January 1978 and shortly thereafter filed suit against Mary Leard, seeking to compel the payment into Albert’s succession of those rents collected by Mary as administrator of the properties previously conveyed to Albert. Mary filed an answer and reconventional demand, asserting that the purported conveyance by her to Albert should be declared a nullity, her signature on the counter letter and conveyance having been obtained by fraud and deceit. Mary further alleged that she was the rightful owner of the properties, having been in quiet, uninterrupted possession for more than ten years in good faith by legal title sufficient to transfer the property. Only a few months after filing these responses, Mary died, leaving a will by which she donated the bare legitime to Albert’s four children and the balance of her estate to her daughter,- Cora Lee Sabrier.

Cora Lee subsequently filed a motion to substitute herself in place of her deceased mother, then filed a second action in her own right as forced heir. This suit, styled “Petition to Declare Authentic Act a Nullity,” alleged that Mary’s counter letter and conveyance to Albert were simulations and donations in disguise.

The trial court agreed, finding that the length of time between the sale to Mary and the later execution of the counter letter — four years — was so suspicious as to give rise to the presumption that the conveyance to Albert was a sham. Accordingly, the trial court voided both the counter letter of July 5,1971 and the notarial act of August 5,1971, by which Albert’s, succession claims title. Annie Ruth Leard, testamentary executrix of Albert’s succession, now brings this appeal, seeking reversal of that decision.

As presented to us, this contest is between two apparently valid authentic acts of conveyance, each in contradiction to the other, each purporting to represent the true state of affairs. Broadly stated, the question for our decision is whether the trial court erred in giving effect to the first act rather than the second.

Simulated contracts may be generally classified as either “non-transfer” simulations or as “disguised-transfer” simulations. A “non-transfer” simulation is an act of sale or conveyance, typically in authentic form and containing the requisite recitals of consideration. To all appearances, it is a valid act and is translative of title. In reality, it is a sham, generally enacted for the benefit of the vendor as an aid in fending off creditors; the true intention of the parties is that there be no real transfer of ownership to the “vendee.” The expression of the parties’ genuine intent is commonly reduced to writing in a counter letter, which cites the reality of their transaction and is enforceable by each party against the other.

Although a simulation may be in authentic form, it is vulnerable to attack by forced heirs:

“... forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit and shall not be restricted to the legitimate [legitime].” Louisiana Civil Code Art. 2239. (Emphasis supplied).

Because of the difficulty of proving a simulation — the parties’ primary intent is, after all, to deceive — the Civil Code allows the plaintiff in such an action the benefit of a valuable presumption:

“In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.” Louisiana Civil Code Art. 2480. (Emphasis added).

“Third persons”, as intended by the above article, has been interpreted to include forced heirs. Succ. of Elrod v. Le Ny, 218 So.2d 83 (La.App. 4th Cir.1969).

Possession is retained by the vendor where the sale produces no change in the dominion or control of the property, as where the vendor continues to collect rents from the property with the consent of the vendee, or where the vendor gives every appearance of retaining ownership by paying property taxes and making repairs or improvements. Under such circumstances, the presumption of simulation may be brought to bear against the transaction by which the vendor “conveyed” the property. Dietz v. Dietz, 227 La. 801, 80 So.2d 414 (1955); Peyton v. Roth, 149 La. 147, 88 So. 773 (1921).

Applying the foregoing principles, we find that Cora Lee Sabrier has established a prima facie case of simulation in the conveyance from Mary Leard to her son, Albert. Although Albert and his family lived on one of the properties from 1968 until 1973, testimony adduced at trial proved that it was Mary who remained in “possession” of the properties (as the term is used in Civil Code Art. 2480) long after the apparent conveyance to Albert. Tax records submitted by Cora Lee Sabrier indicated that it was Mary who paid the annual taxes on each of the three properties involved in this suit from the time she received them in 1967 until the time she died in 1979. Thus, despite the “conveyance” to Albert, Mary continued to carry an owner’s burden. During that period, Mary also paid for the insurance on the properties and acted as apparent manager and landlord. When repairs were needed on the premises, it was generally Mary who obtained the repairmen and bore the cost. Again, it was Mary who took the responsibility to advertise the availability of the properties for lease in the local newspaper and who negotiated with prospective tenants when the premises became vacant. Until Albert’s heirs demanded that rents be paid into his succession, there seemed to be no question in the lessees’ minds that Mary was the rightful owner of the property — each month’s rent was paid to her directly, and retained by her with Albert’s complete acquiescence.

It having been proven that after the purported conveyance to Albert, Mary Leard remained in possession of the property, there arises a rebuttable presumption that the counter letter and conveyance to Albert were simulations. Albert’s succession thus assumed the burden of proving the truth of those documents. La.Civil Code Art. 2480.

As previously stated, Albert Leard’s succession contends that the counter letter is the true expression of the reality of this matter. Thus, it is argued, despite the authentic act whereby Katie Miller formally stated her intent to sell her properties to her sister, Mary, Katie’s true intent at that time was to transfer those premises to Albert. According to appellant, the consideration for that conveyance was Albert’s promise to care for Katie in her old age. We are urged to consider several circumstances which lend credibility to Albert’s position:

First, for a time, Katie lived with Albert and his family, during which time Albert bore the whole cost of Katie’s well-being. Appellant contends that later, when Katie entered the Manhattan Manor Nursing Home to spend the last two years of her life, Albert paid the entire cost of her stay.

With respect to management of the disputed properties, appellant’s witnesses testified that Albert assumed the ultimate responsibility for maintenance, often performing minor repairs himself or with the help of friends. On one occasion, for example, Albert completely remodelled the carport of one of the residences. Appellant have also emphasized that it was Albert who interviewed prospective tenants and that it was he who made the final decision as to which of them would be acceptable. While admitting that Albert never actually received the rents from any of the disputed properties, Albert’s succession maintains that that fact is explainable by Mary’s role as Albert’s agent — the rent was consumed by Mary’s “salary” (and by Katie’s expenses in the nursing home).

We do not think Albert’s succession has sufficiently rebutted the presumption of simulation. First, we note numerous difficulties with respect to the asserted cause of the transfer to Albert, for although it is alleged that the primary consideration was Albert’s promise to take care of Katie for the rest of her life, there is no recital of that cause in the counter letter or in the second conveyance. We must, therefore, consider the transaction — if indeed it existed — to have been a gratuitous donation inter vivos. Louisiana Civil Code Article 1536 requires that such donations of immovable property be attended by passage of an authentic act, under penalty of nullity. Sarpy v. Sarpy, 354 So.2d 572 (La.App. 4th Cir.1978), writ ref. 356 So.2d 436 (La.1978). Albert has sought to prove by parol evidence the giving of consideration in the form of financial support and care for the remainder of Katie’s life. Such consideration, however, does not remove the alleged transaction from the operation of Art. 1536 if the value of the immovables transferred to Albert exceeds by half that of Albert’s services. La.C.C. Art. 1526. Pulford v. Dimmick, 107 La. 403, 31 So. 879 (1902).

Albert’s succession has failed to prove the giving of consideration of such value as to dispense with the requirements of Art. 1536, for aside from allowing Katie to live with the family for approximately one year, there was no proof that Albert extended any further support to her during her later stay at the nursing home. The record is devoid of evidence of payment by Albert for what must have been an abundance of fees and medical bills. The lack of such evidence is significant, not only because Albert failed to perform services of such value as to dispense with the need for an authentic act signed by Katie, but because such a deficiency of evidence casts great doubt upon the very existence of any contract between Katie and Albert. Indeed, although Katie was still alive at the time the counter letter was executed, that document does not even bear her signature. It remains that the conveyance to Mary is the sole writing which contains Katie’s own expression of intent to transfer property. Considering that this dispute so intimately concerns Katie’s contractual intent, we regard her unexplained failure to sign the counter letter as a critical deficiency.

Neither are we persuaded to recognize Albert’s ownership of the properties by the minimal control which he exercised over them, for although it may be true that many of the expenses for repairing and maintaining the premises were initially paid by Albert, he was reimbursed by Mary Leard in nearly every instance. And despite appellants’ contention that such reimbursement was merely another example of Mary’s exercise of agency on Albert’s behalf, it is obvious to this court that, in truth, Mary administered the properties for herself. In so holding, we place special emphasis upon Mary’s retention of the full rents from these properties, without any disbursement to Albert whatsoever. That form of “agency” is barely explainable even for the four-year period during which Mary held title, according to the counter letter, “for Albert’s account.” But by the terms of the counter letter itself, that agency was to remain in effect only until execution of the conveyance to Albert and acceptance by him of the properties. Mary’s agency, then, was supposedly extinguished in 1971. It has been proved, however, that for many years afterward, Mary administered the properties with full dominion, a fact which, after 1971, cannot be reconciled with the counter letter. Albert himself never offered the slightest resistance to Mary’s apparent ownership. Given his long acquiescence in Mary’s retention of rents and in her exercise of complete control of the property, we are forced to the conclusion that the counter letter and conveyance did not express the reality under which title was placed in Mary’s name.

Having failed to rebut the presumption of simulation, the appellant cannot prevail. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . Her last will and testament was dated November 22, 1977, less than 30 days after Albert’s death, and revoked a previous will,

      . We adopt the terminology of Some Aspects of Simulation in France and Louisiana, Thomas B. Lemann, 29 Tul.L.Rev. 22 (1954).

      . We do not regard Albert’s possession as having any connection with either the first conveyance or the second. It was not until after his marriage in March 1968, ten months after the first conveyance (on May 24, 1967) that Albert moved with his wife to the Eleanor Street property. During that ten-month interim, Mary administered the property as her own. Although she did not continue such extensive control of that property after Albert’s occupation, neither did she completely relinquish the responsibilities and appearances of ownership, as it was shown that Mary paid many of that property’s significant expenses, including taxes, insurance, and in some cases, even minor repairs. After Albert moved to another residence in 1973, Mary resumed the same pervasive control over that property which she had consistently exercised over the other two.

      . There were exceptions. During the period Albert lived on one of the properties — 1968 until 1973 (see footnote 3, supra) — he performed many minor repairs himself without compensation from Mary. And although the record does not contain proof of payment by Albert for major maintenance, neither is there any indication that Mary paid those expenses during that time.


author: SCHOTT, Judge.

text:
    Jack SANDS v. Mr. Thomas H. McCONNELL, Mr. Pete Barbarch, Parkway Tavern.
    No. CA-0023.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Feb. 24, 1983.

      George P. Hebbler, Jr., Turner & Young, New Orleans, for defendants-appellants.
    John F. McDonald, III, Metairie, for plaintiff-appellee.
    Before SCHOTT, AUGUSTINE and LO-BRANO, JJ.
   SCHOTT, Judge.

Plaintiff, lessor, brought a rule for possession of the premises at 900 City Park Avenue in New Orleans, leased to defendants, Thomas H. McConnell, Peter Barba-rich, and Parkway Tavern. From a judgment in favor of plaintiff, defendants have appealed. The issue is whether the landlord is entitled to possession when the lessee failed to pay the rent in advance of the month but paid within thirty days after receiving a notice to vacate and the lease provided for a thirty day grace period after written notice of the violation was given lessees by lessor.

On June 9, 1982, plaintiff served defendants with a notice to vacate the premises for their failure to pay the rent which was due by June 1. Later that evening, the rent was tendered by placing a check into a night deposit box at the plaintiff’s business office. The check was promptly returned to the defendants on June 10. On June 11 the rent was again tendered but the check was again returned.

Of several issues raised by defendants on appeal we need address only one since it is dispositive. This is based on the following provisions of the lease:

“Should the lessee at any time violate any of the conditions of the lease, or discontinue the use of the premises for which they are rented or fail to pay the rent punctually at maturity, as stipulated ... and should such violation continue for a period of 30 days after written notice has been given lessee, then at the option of the lessor, the rent for the whole unexpired term of this lease shall at once become due and exigible; and lessor shall have the further option to at once demand the entire rent for the whole term, or to immediately cancel this lease.” (emphasis added)

Under the above terms of the lease, the lessor can cancel the lease only 1) if he gives written notice to the lessee of the alleged violation, and 2) if the lessee continues the violation for a period of thirty days. If the rent is paid during this grace period lessor may not evict the lessee. Ford v. Independent Bakers Supply, Inc., 385 So.2d 580 (La.App. 4th Cir.1980)

The trial judge distinguished the Ford case because of the following provisions in the subject lease:

“Failure to strictly and promptly enforce these conditions shall not operate as a waiver of lessors’ rights, lessor expressly reserving the right to always enforce prompt payment of rent or to cancel this lease, regardless of any indulgence or extensions previously granted.”

He correctly observed that similar language was not discussed in the Ford case as being a part of that lease and reasoned that its presence here provided a sound basis for a different result than Ford. We disagree.

These provisions deal with waiver of the lessor’s rights as enumerated in the lease and are inserted in order to forewarn the lessee that the lessor’s failure to strictly enforce the conditions in the lease shall not operate as a waiver of such rights, Villere & Co. v. Latter, 186 La. 91, 171 So. 705 (La.1936); Rex Credit Co., Inc. v. Kirsch, 4 So.2d 797 (La.App.Orl.1941). They become operable only where the lessee has violated the terms of the lease. Since these defendants complied with the lease by tendering payment within the thirty day curative period, the waiver provisions have no application to the case.

Plaintiff contends that the same issue was decided in his favor in Skye Realty Co. v. Diversified Insurance Agency, Inc., 221 So.2d 871 (La.App. 3rd Cir.1969). However, the language of the lease in Skye was different. The grace period for “such default” clearly referred to “default in the performance” which followed and was separated by a disjunctive “or” from failure to pay rent. Here the words “such violation” follow “fail to pay the rent” so that the grace period applies.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of Thomas McConnell, Pete Barbarich, and Parkway Tavern, Inc. and against the plaintiff, dismissing the suit at his costs.

REVERSED AND RENDERED.


author: LOBRANO, Judge.

text:
    AMOCO PRODUCTION CO., Columbia Gas Development Corp., Energy Ventures, Inc., Columbia Gulf Transmission Co., Diamond Shamrock Corp., Elf Aquitaine Oil & Gas, Forest Oil Corp., Cabot Corp., Northern Michigan Exploration Co., Sun Oil Co., and Sun Pipe Line Co., (Petitioners-Appellants), v. Paul L. LANDRY, Executive Secretary of the La. Board of Professional Engineers and Land Surveyors, (Defendant-Appellee), and Hosea Ware Bailey, Charles Leonidis Graves, Robert Kenneth Richie, Henry Robert Reeves, and McDermott Inc., (Intervenors-Appellees).
    No. 13299.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Feb. 24, 1983.

      Phillip A. Wittmann, Sarah S. Vance, Steven W. Usdin, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for petitioners-appellants.
    Jarrell E. Godfrey, Jr., L. Havard Scott, III, Andrew Rinker, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellee.
    Harry A. Rosenberg, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for intervenors-appellees.
    Before SCHOTT, LOBRANO and AUGUSTINE, JJ.
   LOBRANO, Judge.

Appellants, Amoco Production Co. and a number of other oil companies appeal from a judgment of the trial court denying their petition for mandamus. Appellants sought to compel the Louisiana Board of Professional Engineers and Land Surveyors (“the Board”) to allow inspections of certain alleged public documents pursuant to LSA-R.S. 44:1 et seq. (the Public Records Law). The documents in question consist of the records of disciplinary hearings before the Board involving Brown & Root, Inc. (“Brown & Root”), McDermott, Inc. (“McDermott”) and certain executives of these two companies. These executives entered the suit as intervenors, opposing release of the documents.

We reverse and enter a writ of mandamus in favor of appellants' ordering and directing appellees to allow examination and inspection of the subject records which we find and declare to be public documents as defined in the Public Records Act. La. R.S. 44:1 et seq.

Appellees argue that the Board conducted its hearing after representing to interve-nors that the hearing would be conducted in private pursuant to LSA-R.S. 37:700 (E). They urge that that provision creates a viable exception to the Public Records Act.

The facts are undisputed and were stipulated to by the parties at the trial. On or about July 21, 1980, the Board convened hearings in Orleans Parish to consider possible disciplinary actions against Brown and Root, Inc. and J. Ray McDermott Co. and certain engineers employed by them in connection with their conviction on pleas of nolo contendere to charges of antitrust violations and mail and wire fraud in the matter entitled United States v. J. Ray McDermott Co., et al., Criminal No. 78-422 (E.D.La. filed May 14, 1978). Each of the hearings was conducted in private upon the written request of the persons or firms concerning whom the hearing was convened. At said hearings, briefs were submitted and affidavits were filed on behalf of the participants, testimony was heard, and transcripts of the entire proceedings were prepared in each case.

Subsequent to the hearings referred to herein, the Board took final and binding actions concerning the possibility of disciplinary actions against Brown & Root, McDer-mott and certain of their employees. In a letter dated August 7, 1981, appellants’ attorney requested that the Board allow them to inspect and copy the records relating to the hearing referred to above. On August 19th, appellants were informed by letter that this request was being refused. Appellants then sought a writ of mandamus to compel the Board to produce for inspection the document. It is from the denial of that mandamus that this appeal is taken.

LSA-R.S. 44:1 defines public records as follows:

“All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies duplicates, photographs, including microfilm or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or other of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are “public records,” except as otherwise provided in this Chapter or as specifically provided by law.”

In this case, the hearings of the Board were conducted pursuant to the statutory authorization contained in La.R.S. 37:681 et seq., which empowered the Board to revoke and suspend licenses of registered engineers for certain enumerated causes after notice and hearing. These hearings were therefore “conducted, ... under the authority of the ... laws of this State.” See La.R.S. Sec. 44:1, supra. Thus, the records, writings, accounts, recordings, etc., of the hearings in question are public records within the above definition, unless exempted by Chapter 1 of Title 44 or otherwise specifically exempted by law. Id.

The Public Records Law must be liberally construed so as to enlarge rather than restrict access to public records by the public. This law covers virtually every kind of material or information which is recorded for use in the performance of any public function. Webb v. City of Shreveport, 371 So.2d 316 (La.App. 2nd Cir.1979). See also Loewenwarter v. Henry M. Morris, Superintendent of New Orleans Police Dept., Civil Action No. 0180, (4th Cir. Oct. 12, 1982), writs denied. It also necessarily follows that any exemption to the Public Record Law is in derogation of the public’s right to be reasonably informed as to the manner, basis and reasons upon which governmental affairs are conducted, and therefore must be interpreted narrowly. Lowenwarter, supra. Appellees argue that LSA-R.S. 37:700(E) is an exception to the Public Records Act. We disagree. Although LSA-R.S. 37:700(E) provides that a license revocation or suspension hearing would be held in private at the request of the licensees, there is no mention of the Public Records Law in that statute, much less a specific exemption from its provisions. To read such an exemption into the Public Records Law would be contrary to the strong public policy of that statute which recognizes that the public’s right to be informed is of fundamental importance. Art. 12, Sec. 3 of the Louisiana Constitution reads in pertinent part:

“No person shall be denied the right to ... examine public documents, except in cases established by law.”

Appellees also contend that the appellants have no right of action to inspect public records on the theory that the Public Record Law limits the right of inspection to natural persons. They base this argument on the statutory language providing that “any person of the age of majority may inspect, copy or reproduce” any public record. They argue that by the use of the words “age of majority” in the statute, the legislature intended to deny corporations the right to inspect public records.

This contention lacks merit. LSA-R.S. 1:10 provides,

“Unless it is otherwise clearly indicated, the word person includes a body of persons whether incorporated or not.”

It is well settled that when the word “person” is used in a statute, the statute applies to corporations as well as to natural persons “if such corporations fall within the reason and purpose of the provisions of the act.” Hays v. Louisiana Wildlife and Fisheries Commission, 165 So.2d 556 (La.App. 1st Cir.1964) at 565. We find no basis in law or policy for the contention that a corporation, which pays taxes and is subject to regulation by public bodies, does not have a right to inspect the records of these bodies on the same footing as individuals. Corporations are clearly within the reason and purpose of the Public Records Act and are entitled to invoke its provisions.

Additionally appellees (Intervenors) argue that the release of the requested information would violate their right of privacy provided for in Art. I, Sec. 5 of the La. Constitution. This section of the Constitution provides in pertinent part:

“Every person shall be secure in his persons, property, communications, houses, papers and effects against unreasonable searches, seizures or evasion of privacy.”

The only reported Louisiana decision holding public records exempt from disclosure based on claims of privacy is Trahan v. Larivee, 365 So.2d 294 (La.App. 3rd Cir. 1978), which held that performance evaluations in the personnel files of municipal employees were private. Such performance evaluations are readily distinguishable from the records sought in the instant case. The performance evaluations were not compiled by the City in connection with formal hearings held concerning these employees, nor were the employees charged with any misconduct. They were not records of any formal proceedings by the City, but were records of a nature any private employer would maintain on its employees. The records that appellants seek in the case before us are records of formal proceedings of the Board conducted in the exercise of its statutory function to discipline license engineers. Thus there could be no reasonable expectation of privacy by the appellees.

For the above and foregoing reasons the judgment of the trial court is reversed and judgment rendered herein in the form of a writ of mandamus, ordering, directing and commanding the Honorable Paul L. Landry, Executive Secretary of the La. Board of Professional Engineers and Land Surveyors to permit and allow appellants to examine and inspect the documents involved in this litigation, pursuant to the provisions of LSA-R.S. 44:1 et seq., immediately upon finality of this judgment. All costs for which appellees are amenable in law shall be paid by appellees.

REVERSED AND RENDERED.

      . La. 37:700(E), prior to its repeal in 1980, provided:
      “Before the board shall suspend or revoke the registration of any registered professional engineer or land surveyor as provided in Subsection B of this Section, it shall conduct a hearing as provided hereinbelow. Such hearing shall be public, unless the registrant requests in writing that it be private.”

      . Since we hold that LSA 37:700(E) does not create an exception to the Public Record Law it is not necessary to address the issue of whether 37:700(E) was repealed by the open meeting Law, LSA-R.S. 42:6, 42:6.1, 42:5.