author: CULPEPPER, Judge.

text:
    Sam P. TURNBULL, et ux., Plaintiffs & Appellees, v. Frances W. LaHAYE, et al., Defendants & Appellants.
    No. 82-391.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.

      John D. Edwards and Thomas R. Edwards, Opelousas, for defendants & appellants.
    Ben C. Bennett, Jr., Marksville, for plaintiff & appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   CULPEPPER, Judge.

.This is a boundary action. The plaintiffs sued to establish the boundary between their property and that of the defendants. The defendants answered, claiming ownership by acquisitive prescriptions of 10 and 30 years of approximately 2.5 acres in dispute.

The court appointed a surveyor who established a boundary using old surveys and surveyor’s markers in the area. After a trial on the merits with regard to the issues of ownership and possession, the district judge found neither plaintiffs nor defendants had proved ownership of the disputed 2.5-acre strip either by record title or by acquisitive prescription. The court found defendants had possessed the disputed strip for several years, but he nevertheless fixed the boundary according to the line established by the court-appointed surveyor. Defendants appeal. We reverse.

The substantial issues are: (1) Did defendants prove ownership by 10 years acquisitive prescription? (2) Did defendants prove ownership by 30 years acquisitive prescription? (3) Did plaintiffs prove ownership by record title? (4) In the absence of proof of ownership by either party, how is the boundary fixed?

GENERAL FACTS

This suit was instituted by plaintiffs on May 5, 1981. They alleged ownership of property described in their petition as follows:

“A certain tract or parcel of land, together with all buildings and improvements thereon, lying in and forming a portion of the WA of Section 12, T1S-R4E, Avo-yelles Parish, Louisiana, containing 140 acres, more or less, and being bounded, now or formerly, on the north by Haas Investment Company, south by the defendants, Frances W. LaHaye, et al, east by Dalgo and west by Roy D. Johnson, Jr. Being that property acquired by Alice Callegari Turnbull by Act of Partition with the Heirs of T.J. Callegari, dated December 31, 1951, recorded COB A-149, page 616, and also being acquired by Sam P. Turnbull from Alice Callegari Turnbull by Donation of Interest in Real Property, dated December 12, 1980, recorded COB A-311, Entry # 80-8044, all records of Avoyelles Parish, Louisiana.”

Plaintiffs allege defendants own neighboring land to the south, and that the boundary line between the contiguous estates is in dispute, having never been established, either judicially or by agreement of the parties. They pray to have the boundaries fixed in the manner prescribed by law. The defendants answered, contending they own the strip of land in dispute by 10 years acquisitive prescription, or, in the alternative, 30 years acquisitive prescription.

The court-appointed surveyor, Ralph Gagnard, established the division line between the two tracts of land in accordance with previous surveys in 1951 and 1955 by Blanchard J. Marchand of the tract owned by the plaintiffs. Gagnard stated he studied the title papers of the properties as well as the prior surveys and found no evidence or reason to question the accuracy of Marc-hand’s surveys. He then located the property corners by iron pipes and other markers placed there during these previous surveys and established the boundary line from these points.

Despite objections by the defendants to the surveyor’s use of the prior surveys, Gag-nard’s survey and the process verbal thereof were duly homologated and approved by the court. The case was then tried on the merits of the issues of record title and acquisitive prescription.

The evidence shows Mrs. Alice C. Turn-bull acquired the property described in the plaintiffs' petition in an act of partition dated April 9, 1952, in which she and her co-heirs partitioned the property belonging to her deceased parents. Then by act of donation, Mrs. Turnbull gave to her husband, Sam P. Turnbull, a one-half undivided interest in the tracts on December 12,1980. The plaintiffs’ ancestor in title is Mrs. Turnbull’s father, Preston J. Callegari, who acquired the property in transactions involving separate but adjoining tracts of land in 1912 and 1914.

The defendants are the surviving spouse and heirs of L. Dennis LaHaye. They acquired the property south of Mrs. Turnbull’s tract by a judgment of possession dated January 24, 1966. The property is described as follows:

“(1) A certain tract or parcel of land, with all improvements thereon, containing 55 acres, more or less, situated in Spring Bayou and more particularly described as contained within the following boundaries: North by Paul Dauzat, East by Morrow, South by Robertson and on the West by the tract hereinafter described;
(2) One hundred forty-seven acres of land, more or less, together- with all improvements thereon, adjoining the above described tract and otherwise described as contained within the following boundaries, North by Paul Dauzat, East by the above described tract, on the South by Robertson and on the West by Coudeau, being the same properties acquired by Act No, 139989, recorded in Book A-148 of the conveyance records of Avoyolles Parish, La.”

Defendants’ property was acquired on October 10, 1951 by L. Dennis LaHaye and his brother, Richard LaHaye, from Dr. W.A. Quirk, who had purchased the tract in 1906. Then in 1959, Richard conveyed his interest in the property to Dennis. The entire interest in the property was inherited by the heirs of Dennis LaHaye.

The record shows that the recognized boundary between the two properties was marked by a fence when Mr. Callegari and Dr. Quirk were the adjoining owners. However, in about 1935 a new road was built from the Goudeau Road in an easterly direction to Coonville. In the area in question, Coonville Road did not follow the old fence. The road was built 40 to 60 feet north of the old fence, to avoid cutting down some trees. The survey homologated by the district court placed the boundary along the old fence line, marked A to B on the attached survey. The defendants contend the road is now the boundary. A copy of a survey made by Blanchard J. Marchard on January 6, 1979 is attached to this opinion and shows the location of Coonville Road, designated thereon as a “Parish Road.” The 2.5 acres in dispute lies between Coonville Road and the line A-B.

The trial court found neither plaintiffs nor defendants proved ownership by acquisitive prescription. The judge concluded that no evidence showed the survey by the court-appointed surveyor was incorrect.- The court therefore adopted the plat submitted as the judgment of the court and fixed the boundary in accordance therewith. This was an error of law. If neither party proves ownership, the boundary must be fixed by possession. LSA-C.C. Article 792.

STATUTORY LAW OF BOUNDARY ACTIONS

The following general rules from our Civil Code are applicable:

“Art. 792. Fixing of boundary according to ownership or possession
The court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession.
“Art. 793. Determination of ownership according to titles
When both parties rely on titles only, the boundary shall be fixed according to titles. When the parties trace their titles to a common author preference shall be given to the more ancient title.
“Art. 794. Determination of ownership according to prescription
When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.”

For a full discussion of the boundary action and the burdens of proof as to ownership and possession, see Yiannopoulos, Civil Law Treatise, Property, 2nd Edition, Sec. 225, pgs. 598-604.

DEFENDANTS’ CLAIM BY TEN YEARS ACQUISITIVE PRESCRIPTION

The defendants argue the trial court erred in failing to find they established ownership of the property by ten years acquisitive prescription.

LSA-C.C. Article 3478 provides:

“Art. 3478. He who acquires an immovable in good faith and by just title prescribes for it in ten years.”

The conditions necessary for such prescription are set forth in LSA-C.C. Article 3479:

“Art. 3479. To acquire the ownership of immovables by the species of prescription which forms the subject of the present paragraph, four conditions must concur:
1. Good faith on the part of the possessor.
2. A title which shall be legal, and sufficient to transfer the property.
3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
4. And finally an object which may be acquired by prescription.”

We have no difficulty concluding defendants have failed to prove ownership of the 2.5 acres in dispute by the acquisitive prescription of 10 years, because their record title does not include this strip of land. The above quoted description of defendants’ 55-acre tract shows it is described as being bound on the north by Paul Dauzat, who was an ancestor in title of Preston J. Calle-gari. Thus, the property is actually described as being bound on the north by property owned by plaintiffs’ ancestors in title. We have carefully examined the conveyances in defendants’ chain of title and find.no evidence to show that their record title includes the 2.5 acres in dispute.

DEFENDANTS’ CLAIM BY THIRTY YEARS ACQUISITIVE PRESCRIPTION

The defendants contend in the alternative they proved ownership by 30 years acquisi- • tive prescription under LSA-C.C. Article 794, since they and their ancestors in title have possessed beyond their title to the road for over 30 years.

It is clear from the evidence that the LaHaye family has exercised possession of the strip of land in dispute since L. Dennis LaHaye bought the 55-acre tract on October 24, 1951. However, this suit was filed on May 5, 1981, before they had completed 30 years possession.

Defendants are entitled to tack any possession of the strip in dispute enjoyed by their ancestors in title, specifically Dr. W.A. Quirk. See LSA-C.C. Articles 3493, 3494. However, the evidence is not sufficient to prove that Dr. Quirk corporeally possessed the 2.5-acre strip between the old fence and the Coonville Road.

The testimony shows the Coonville Road was built across Preston Callegari’s field in about 1935. The road was fenced on both sides by about 1946, but none of the witnesses knew who built the fence on the south side. Someone named Deely kept cattle south of the road and Jessie Dalgo made hay on the part that was cleared, but part of it was still wooded until about seven years ago. There was no testimony to establish from whom the two men mentioned secured permission to carry out their operations on this land.

There is no clear error in the trial court’s finding of fact that defendants failed to prove they and their ancestors in title possessed the 2.5 acres in dispute for over 30 years.

PLAINTIFFS’ CLAIM BY RECORD TITLE

Although the trial judge’s written reasons do not expressly rule on the question, it is obvious he rejected plaintiffs’ claim to ownership by record title, because the judge found it necessary to hold that plaintiffs did not prove ownership by acquisitive prescription. In their brief on appeal, plaintiffs attempt to delineate their title back to the sovereign, beginning with a patent by Marie Louise Bontempt to the entire Northeast Quarter of Section 12, Township 2 South, Range 4 East. The difficulty is that the conveyances in the chain of title from Marie Bontempt down to the plaintiffs describe the property mostly by adjoining owners rather than by section lines or natural or artificial objects. The particular deed which plaintiffs contend establishes the southern boundary of their property approximately along the line shown by the court-appointed surveyor is a deed from Henry Mayeux to Mitchel Goudeau dated January 19, 1861 conveying 25 acres, 17 of which plaintiffs contend were in the North Half of the Northeast Quarter of Section 12, and the additional 8 acres in the northern portion of the South Half of the Northeast Quarter of Section 12. However, the court-appointed surveyor examined this document, along with others, and he testified he could not determine from the instruments themselves where the southern line of the 25 acres was located. For that reason, he said he had to use the iron stakes and other markers placed on the ground by other surveyors to locate the boundary line.

We have carefully considered plaintiffs’ brief with the attached sketches of the property in which they make the best argument they can to prove that their record title includes the 2.5 acres in dispute here. However, we find the trial judge was correct in concluding plaintiffs did not prove ownership by record title. The basic reason is that it is simply impossible to determine from the title the location of the southern boundary of plaintiffs’ property on the ground.

PLAINTIFFS’ CLAIM BY ACQUISITIVE PRESCRIPTION

As we understand plaintiffs’ brief on appeal, they do not claim ownership by acquisitive prescription. In the event they do claim ownership by the acquisitive prescription of 10 years, such a contention has no merit for basically the same reason given above in concluding that they have not proved ownership by record title. Since their title does not include the 2.5 acres in dispute, they cannot claim ownership by acquisitive prescription of 10 years.

Plaintiffs make no argument based on 30 years acquisitive prescription, either under LSA-C.C. Article 794 or Article 3499.

BOUNDARY FIXED BY POSSESSION

Since neither party proved ownership of the 2.5 acres in dispute, this case is governed by LSA-C.C. Article 792, quoted above, which provides that if neither party proves ownership, the boundary shall be fixed according to limits established by possession. The defendants have proved that they and their ancestor in title, L. Dennis LaHaye, have exercised corporeal possession of all of the property at issue south of the Coonville Road since October of 1951. They erected buildings on part, ran cattle on other parts, and cleared the wood land for farming. Since defendants are in possession, the boundary between the two adjoining tracts must be fixed at the southernmost edge of Coonville Road.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that the boundary line at issue dividing the properties of the plaintiffs, Sam P. Turnbull and Alice Callegari Turnbull from the properties of the defendants, Frances W. LaHaye, L. Dennis LaHaye, Margret LaHaye Edwards and Paul Alan LaHaye, said properties being located in Section 12, Township 2 South, Range 4 East in the Parish of Avo-yelles, State of Louisiana, be recognized as the southernmost edge of the parish road known as the Connville Road, all as is more fully shown by the plat of a survey by Blanchard J. Marchand of date January 6, 1979, a copy of which is attached hereto and made a part hereof for greater certainty of description. All costs in the trial and appellate courts are assessed against the plaintiffs-appellees.

REVERSED AND RENDERED.

APPENDIX A


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Dorothy Knight RAY v. Gerald Wayne RAY, Sr.
    No. 82 CA 0314.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1982.
    James D. Thomas, II, Baton Rouge, for plaintiff.
    Kearney Tate, Eunice, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

Gerald Wayne Ray and Dorothy Knight Ray were divorced by judgment dated June 27, 1975. Mrs. Ray was granted custody of their minor child, Gerald Wayne Ray, Jr., with Mr. Ray to have right of visitation every other weekend beginning at 5:00 p.m. Friday.

By judgment dated July 23, 1976, Gerald Wayne Ray was ordered to pay $150.00 per month child support. Thereafter, Mr. Ray sought by rule to have Mrs. Ray held in contempt of court for failure to accord him visitation rights as ordered by the court. In written reasons for judgment dated August 18, 1977, the trial court indicated Mrs. Ray (now Lambert) would not be held in contempt, because Mr. Ray had beaten his wife up several times, done damage to property, and paddled young Gerald to the point where bruises appeared. However, by judgment dated September 19, 1977, the trial court ordered the preservation of visitation rights on the part of Mr. Ray from 5:30 p.m. Friday until 6:00 p.m. Sunday, every other weekend, and, if that proved satisfactory, granted custody of the child from 9:30 a.m. November 24, 1977, until 5:00 p.m. November 27. Child support was continued at $150.00 per month.

In the present proceedings, Mr. Ray again sought by rule to have his former wife held in contempt of court for failure to accord him visitation rights as ordered, Mrs. Lambert responded by filing a rule seeking to have Mr. Ray’s visitation rights discontinued and to have a judgment making past due child support executory in the total amount of $9,720.00. The trial court by the judgment presently appealed from suspended Mr. Ray’s visitation rights until past due child support in the amount of $9,720.00 was paid. We remand for further proceedings.

Counsel for Mr. Ray on appeal (Mr. Ray appeared in proper person at trial on the rule) contends that Mr. Ray was never served in Dorothy Ray Lambert’s rule seeking to have the judgment for child support made executory and to have Gerald Wayne Ray’s visitation rights discontinued. We have examined the pleadings, and find the following notation to have been made by the office of the clerk of the trial court:

“11-2-81 Spoke w/Mr. Tate regarding service of defendant. Per Mr. Tate’s instructions, do not serve defendant”

Mr. Tate was counsel for Dorothy Ray Lambert. It thus appears that service of Mrs. Lambert’s rule was not effected. It is true that Mr. Ray voiced no objection at the commencement of trial on the rule. However, at the commencement of the trial on the rule, preliminary statements made by the trial court indicate that only the rule to hold Mrs. Lambert in contempt of court was taken up. No mention was made of Mrs. Lambert’s rule. The testimony adduced indicated in several brief passages that Mr. Ray had mailed child support payments, which were returned. However, these brief remarks were not sufficient, we find, to broaden the issues properly presented to include a consideration of Mrs. Lambert’s unserved rule. Since Mr. Ray was never served with Mrs. Lambert’s rule, and the pleadings not having been broadened, Mrs. Lambert’s rule was never properly placed at issue. Furthermore, even overlooking this flaw in the record, we see further that no evidence tending to establish the amount of past due child support was ever introduced at trial on the rule. We find that based on the record visitation rights should not have been conditioned upon payment of the fixed sum of $9,720.00 in child support, as that sum was not established at trial on the rule, and the trial court entirely lacked jurisdiction of the issues sought to be presented by Mrs. Lambert’s rule. These matters should be taken up again upon proper service and full presentation of evidence concerning the sum past due.

However, we find the trial court acted properly in suspending visitation rights, although we hold visitation rights will be suspended only until all matters are taken up and decided, and thereupon suspended, discontinued, or reinstated in full, depending upon the evidence presented. At the present time, we see that the record reveals that Mr. Ray is of a violent disposition, has torn up property, and attempted to rape his stepdaughter, whom on other occasions he mistreated. Although evidence of beatings administered by Mr. Ray upon Mrs. Lambert, and his unduly harsh paddling of young Gerald, is not directly in the record, we have before us in the record in the form of earlier reasons for judgment of the trial court statements that these incidents occurred. Until the record is fully made up, by introduction of the transcript of testimony of the prior rule or by introduction of new testimony, we feel it is in the child’s best interest that visitation rights be suspended. If a child is in danger of psychological damage, visitation rights may be regulated, limited, or completely taken away. Visitation should not be allowed if visitation could injuriously affect the child. See Larroquette v. Larroquette, 293 So.2d 628 (La.App. 4th Cir.1974) and the cases cited therein. If danger of psychological damage is a basis for suspending, altering, or ending visitation rights, certainly danger of physical harm to the child constitutes a basis for suspending visitation rights. Accordingly, Mr. Ray’s visitation rights are suspended pending amplification of the record. As no direct mention was made in the judgment appealed from on the question of holding Mrs. Lambert in contempt of court, we direct that the trial court decide the issue directly by judgment upon remand of the case.

The judgment of the trial court is set aside, except that Gerald Wayne Ray’s visitation rights with respect to Gerald Wayne Ray, Jr., are suspended pending the final outcome of this matter, and the case is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SHORTESS, J., concurs.


author: WILLIAMS, Judge.

text:
    Patricia LOFTON and Sharon Cardinal v. Leon WHIMPER and New Orleans Public Service, Inc.
    No. CA-0093.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 3, 1983.
    Darleen M. Jacobs, New Orleans, for plaintiffs-appellants.
    James Maher, III, New Orleans Public Service, Inc., New Orleans, for defendants-appellants.
    Before SCHOTT, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal arising from an award of damages to plaintiffs-appellees, Patricia Lofton and Sharon Cardinal, against defendants-appellants, Leon Whimper and his employer, New Orleans Public Service, Incorporated, as a result of injuries sustained in an automobile/bus collision in New Orleans. Patricia Lofton was the only party seriously injured. Sharon Cardinal, the owner and driver of the car, is only seeking to recover for the damage caused to her automobile.

The only issue raised on appeal is that of quantum. Patricia Lofton’s damage award consisted of:

General Damages $175,000.00
Past Medical Expenses 7,719.00
Future Medical Expenses 7,400.00
Past and Future Wages 6,850.00
Total $196,969.00

Damages to Cardinal’s automobile amounted to $1,736.95, which included an amount to pay for a rental car.

The accident occurred on May 3, 1981, at approximately 10:00 o’clock A.M. at the intersection of Bienville and North Rampart Streets, on the fringe of the Vieux Carre. Plaintiffs’ car was on Bienville travelling in a northerly direction away from the River and the Vieux Carre. Defendants’ bus was on N. Rampart travelling in a westerly direction, from plaintiffs’ right to left.

The evidence at trial showed that, at this intersection, N. Rampart has a neutral ground, or median strip, separating the opposing lanes of traffic. This intersection is controlled by an electric semaphore light signal which was green in plaintiffs’ direction at the time of the collision. Before attempting to cross N. Rampart, plaintiffs’ car was stopped on Bienville behind a tour van facing a red light. When the light changed to green, the tour van proceeded across the intersection, in front of defendants’ bus, without incident. The bus was stopped about 10 feet away from this intersection at a marked bus stop. Plaintiffs’ car followed the tour van across the first two lanes of N. Rampart, within seconds, and had entered the second two lanes when defendants’ bus pulled away from the curb, on the far side of N. Rampart and started across Bienville striking the right front fender of plaintiffs’ car. The force of the impact spun plaintiffs’ car sideways.

Upon impact with the bus, Patricia Lof-ton, who was seated in the right front passenger seat, nearest the point of impact, was thrown forward against the interior of the car. She immediately felt sore and developed considerable pain in her neck, lower back and right leg. After six weeks, because the pain and soreness had not subsided, she consulted Dr. Kenneth Vogel, a neurosurgeon. Dr. Vogel treated plaintiff conservatively but later hospitalized her for a myelogram and a discogram. The results of these tests revealed the presence of a herniated disc at the L4-5 level in the back. A lumbar laminectomy was performed in September, 1981, but plaintiff continued to suffer. In December 1981, after several visits with Dr. Vogel, a CAT scan was performed which indicated the plaintiff had re-herniated her lumbar disc at the L4-5 level. A review of the record indicates that plaintiff, Patricia Lofton, had scheduled a second surgical procedure to correct the re-herniation of her disc almost immediately. Although Dr. Vogel has estimated the second laminectomy should alleviate 80% of plaintiff’s pain, she could still be expected to have a residual disability of 15% to 20% as a result of the second laminectomy. QUANTUM

Defendants argue Ms. Lofton’s award for general damages of $175,000.00 is excessive and should be reduced to $130,000.00. Appellant’s brief cites numerous recent authority showing a wide range of awards for injuries similar to Ms. Lofton’s. Those awards ranged from a low of $10,000.00 to a high of $150,000.00, however, each case must stand on its own facts. Walton v. Wolf Baking Co., Inc., 406 So.2d 168 (La. 1981). The adequacy or inadequacy of an award should be determined by the facts and circumstances of the particular case on appeal. Reck v. Stevens, 373 So.2d 498 (La.1979); Boutte v. Hargrove, 290 So.2d 319 (La.1974); Marshall v. Commercial Union Ins. Co., 378 So.2d 1052 (La.App.2d Cir.1979). With respect to general damages for pain and suffering, each case must be weighed and calculated according to the facts peculiar to it alone. Peralta v. Schwegmann Bros. Giant Supermarkets, Inc., 406 So.2d 720 (La.App. 4th Cir.1981), writ denied 410 So.2d 762. Our approach in considering whether damages are excessive is to look only to the particular plaintiff’s injuries rather than try to match similar injuries and prior awards. Ahern v. Weicks, 403 So.2d 1266 (La.App. 4th Cir.1981).

We have examined the record carefully and conclude that Ms. Lofton suffered significant pain, even though there was only a short period of ten months between her injury and the date of trial. The testimony showed she can expect continued pain and discomfort for the rest of her life.

Ms. Lofton had scheduled a second lami-nectomy only one week after trial in an attempt to alleviate some of her pain. We cannot conclude on the facts presented that an award of $175,000.00 for her pain and suffering is excessive. See also Faciane v. Carter, 381 So.2d 1312 (La.App. 4th Cir.1980). The trial court has not abused its discretion nor committed manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973).

The defendants further question the trial court’s award of special damages for past and future medical expenses as well as lost wages. Past medicals were shown to be $7,719.00. Defendants argue that Ms. Lofton did not personally incur these expenses, since they had been paid by Ms. Cardinal’s automobile bodily injury liability insurance coverage, and therefore, she should not be awarded any special damages. We find no merit in this argument. The collateral source doctrine has been well established in Louisiana, effectively barring defendants’ claim. Taft v. Gist, 293 So.2d 641 (La.App. 3d Cir.1974); Womack v. Traveler’s Ins. Co., 258 So.2d 562 (La.App. 1st Cir.1972); writ denied 260 So.2d 701; Riley v. Frantz, 253 So.2d 237 (La.App. 4th Cir.1971); Hall v. State of Louisiana, through the Dept. of Highways, 213 So.2d 169 (La.App. 3d Cir.1968), writ ref. 252 La. 959, 215 So.2d 128. Defendants may not take advantage of Ms. Lofton’s good fortune when, as here, her friend’s insurance partially paid for her loss.

The award of $7,400.00 for Ms. Lof-ton’s future medical expenses includes an amount equal to the cost of the second laminectomy scheduled immediately after trial. If we assume, arguendo, that her operation will cost $5,000.00, that only leaves $2,400.00 for post-operative treatment. We find the amount of special damages awarded for medical expenses was well within the trial court’s discretion and is not to be disturbed. Canter, supra. This amount might be considered low, in light of the amount awarded for general pain and suffering. However, taken together, the award of general and special damages is within the trial court’s discretion.

The amount awarded Ms. Lofton for lost wages is also questioned on appeal. The award of $6,850.00 was based upon the testimony presented by Ms. Lofton’s supervisor and an economist, Dr. Melville Wolfson. Defendants also contend that it was erroneous to find Ms. Lofton had missed any work at all as a result of her injury from the accident, because she was not “working” for wages she is not entitled to any compensation for lost wages.

Ms. Lofton applied for a job with Gold Mecca of Baton Rouge, in March, 1981. Before she could be put on the payroll she was required to complete a six-week training course covering the various phases of running a jewelry store. During this training period she would work a few hours each day, as the program required, for each particular segment, but was never paid for any of these hours. When an opening developed in one of the stores Ms. Lofton was placed on the payroll and went to work. In practice, this was the policy every new employee had to undergo in order to be hired. Within a few months of the incident Ms. Lofton was forced to miss numerous days of work due to her injuries. Her hours of work fell from an average 50-60 hours per week to an average of just a few hours per week. Since she was considered a full time employee, her absence was sorely felt. She was eventually dismissed because her employer could no longer depend on her. Her injury cost Ms. Lofton this job, and according to testimony, a job she was good at.

Apparently the trial court was much impressed with Ms. Lofton’s testimony, and that of her supervisor, in making its determination that she was entitled to compensation for lost wages as a result of her accidental injury. We agree. Arceneaux v. Domingue, 365 So.2d 1380 (La.1978); Canter v. Koehring, supra.

Defendants contend that because there was a long delay in repairing Ms. Cardinal’s car, they should not be held liable for the entire amount incurred in renting a substitute automobile. The testimony of Ms. Cardinal showed she used her car daily in her business as an interior designer and that it was necessary to visit her client’s places of business or residences. The long delay to repair her car was not shown to be the fault of Ms. Cardinal. Therefore, we agree with the trial court in this award and reject defendants’ argument. Arceneaux v. Domingue, supra; Canter v. Koehring, supra.

For the foregoing reasons, we find no abuse of discretion of the trial court in the amount of damages awarded and affirm the judgment below.

AFFIRMED.

      . The judgment also included legal interest from date of judicial demand and costs of litigation, including expert witness fees.


author: COVINGTON, Judge.

text:
    Ridgeno WILLIAMS v. HOUSING AUTHORITY OF NEW ORLEANS.
    No. 82 CA 0417.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.

      R. Glenn Cater, Cater & Willis, New Orleans, for appellant.
    Dennis J. Dannel, Gerdes & Valteau, New Orleans, for appellee.
    Robert R. Boland, Jr., Dept, of State Civil Service, Baton Rouge, for Herbert L. Sum-rail, Director, Dept, of State Civil Service.
    Before COVINGTON, LANIER and ALFORD, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the State Civil Service Commission upholding the removal of the appellant Ridgeno Williams, from her position as Account Clerk I at the Guste Homes for the Housing Authority of New Orleans. We affirm the judgment.

Prior to June, 1980, Williams was a classified employee of HANO. By letters dated June 24 and 25,1980, over the signatures of the housing authority manager and the executive director, she was given formal notice of termination effective June 27, 1980. The reasons for this action can be summarized as follows:

1. Her responsibility for a shortage of funds in the amount of $500.
2. Her failure to carry out orders promptly and properly.
3. Her failure to keep accurate records, resulting in reports not being made timely-
4. Her failure to complete specific transactions properly.
5. Her excessive absences and tardiness, affecting the productivity of her work.
6. Her failure to transmit properly the files of transferred tenants.

Williams timely appealed her dismissal, contending that there was no basis for the charges made against her.

A public hearing was held in this case in New Orleans on October 14, 1981, before a referee appointed by the Commission. At the hearing there was testimony from the head of the personnel office of HANO, who testified to the termination letter, and testimony from Ms. Williams’ immediate supervisor, who testified about the unaccounted-for funds for which Williams was responsible (a shortage of $500) and specifically about each of the other charges. Two fellow employees corroborated the supervisor’s testimony concerning the shortage of funds. Ms. Williams’ only defense was that she had not taken the $500. She offered to make good the shortage, but had no explanation for the shortage. She acknowledged the absences and tardiness, and had been counseled by her supervisor concerning them.

The Commission’s findings of fact were, as follows:

1. Appellant was an Account Clerk I on June 17, 1980 and was acting in the capacity of a relief cashier as the Account Clerk II, who is the regular cashier, was not at work that day.
2.' Cashiers at the Guste Home Project collect money from the residents. Also, in this connection, the cashiers have to fill out certain reports and keep daily records.
3. The cashier’s cage at Guste Home consists of two (2) cashier windows. The cashier counters are separated by a wall, but there is one common door to the area. Each cashier has a key to their respective cash drawer.
4. At the end of each working day, cashiers are required to count the money in their respective cash drawers. The cashiers run a tape of the contents of the drawer and by tallying their copies of the receipts, the cash taken in should total the receipts given out.
5. The cash drawer money is then put in an envelope, dated and signed by the cashier and sealed. This envelope along with the tape is then deposited in the safe for the night. If there is any discrepancy in the totals, the cashier is to report it to the Manager or to the Administrative Assistant.
6. After the cashiers count their money, the manager or the Administrative Assistant then double checks the figures by recounting the cash drawer money.
7. On June 17, 1980, appellant was serving as a relief cashier at one window and Arnold Martin, the Administrative Assistant was acting cashier in the other window.
8. Late that afternoon, while appellant was counting the money for the day, a tenant came in to sign a lease. Mr. Martin instructed appellant to leave her window and go out and assist the tenant.
9. Appellant left the cashier’s cage to comply with Mr. Martin’s request. She does not remember if she locked her cash drawer.
10. When she returned it was almost 5:00 p.m., (quitting time), so she proceeded to finish counting her money; however, due to the lateness of the hour, she did not finish her count but rather put the money in an envelope, sealed it and put her name on it. No tallying tape accompanied the envelope.
11. Mr. Martin did not double cheek appellant that day as he did not have time. Ms. Norris did not double check appellant that day as she was called to a meeting earlier that afternoon and never returned to the office.
12. The next day, June 18, 1980, when the safe was opened in order to make a deposit of the contents, Ms. Norris discovered that the amount marked on the outside of appellant’s envelope did not total the actual cash inside the envelope and that the adding machine tape was not in the envelope.
13. Ms. Norris called appellant, who was absent from work on June 18, 1980 and questioned her about the discrepancy. When she contacted appellant by telephone, appellant stated that she was aware of the discrepancy and that she had thrown the adding machine tape away. Ms. Norris also testified that appellant agreed to replace the $500.00, as is the policy whenever a shortage of money from the cashier’s drawer is discovered. Norris further testified that appellant stated she did not know why she didn’t report the discrepancy to any one.
Appellant testified that when Ms. Norris called her about the shortage, she told Norris that she did not know she was short and that is why she did not report the discrepancy. No other explanation for the $500.00 shortage was offered by appellant. In this regard, the Commission finds the testimony of Ms. Norris to be more credible than that of appellant.
14. The testimony of Ms. Norris is un-contradicted in that appellant failed to maintain accurate move in — move out records on several occasions. Since these records were not properly maintained, other forms and reports dealing with the tenants’ move in — move out records were also backlogged. Appellant offered no testimony to rebut this charge and therefore, the Commission concludes that the charge is true.
15. The testimony of Ms. Norris is un-contradicted in that appellant failed to complete certain transactions in connection with re-examination and EDP data on new tenants. If these forms are not in proper form, a new tenant could be charged more or less money for an apartment than was actually necessary. Appellant offered no testimony to rebut this charge and therefore, the Commission concludes that the charge is true.
16. Ms. Norris had to counsel appellant on numerous occasions with respect to her tardiness and previous warnings were given. However, appellant finally corrected her tardiness problem.
17. The testimony of Ms. Norris is un-contradicted in that appellant failed to send certain transferred tenants’ folders to the Magnolia Housing Project when some tenants transferred from the Guste Project to the Magnolia Project causing delays in the processing of said tenants. Appellant offered no testimony to rebut the charge. Therefore, the Commission concludes that this charge is true.

Our scope of review of the Commission’s decision extends to both the law and the facts. La. Const. Art. 10, § 12 (1974). The scope of review in such cases is the same as that in any other civil case. The findings of fact made by the Commission must be accorded much weight and will not be overturned in the absence of manifest error. Brook v. Louisiana State University, Baton Rouge Campus, 405 So.2d 1216 (La.App. 1st Cir.1981).

In the instant case the Commission found as facts that appellant was responsible for a $500 shortage on June 17, 1980; that she failed to maintain accurate move in — move out records on several occasions, causing other forms and reports to backlog; that she failed to complete certain transactions in connection with re-examination and other pertinent data on new tenants. If these forms are not handled properly, a new tenant could be charged the incorrect amount of rental for his apartment. In substance, the Commission found that appellant’s work performance was unsatisfactory in that she failed or excessively delayed carrying out orders and made serious mistakes through her carelessness, all in violation of the HANO Personnel Policy and Procedure Manual. These facts áre supported by sufficient and competent evidence and, as a matter of law, the facts justify the action taken by the appointing authority. Stiles v. Department of Public Safety Drivers’ License Division, 361 So.2d 267 (La.App. 1st Cir.1978).

A permanent classified civil service employee may be dismissed for cause if the conduct complained of impairs the efficiency of public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Thornton v. DHHR, 394 So.2d 1269 (La.App. 1st Cir.1981).

Williams’ failure to satisfactorily account for the significant shortage on June 17,1980, was sufficient cause for her termination. Her conduct on this occasion impaired the efficiency of the public service and bore a real and substantial relation to the efficient and orderly operation of HANO. The letter of termination fully apprised Williams of the cause for her removal, particularly with regard to the shortage incident. We consider the cause for her dismissal to have been clearly and fairly stated and proven by a preponderance of the evidence. We have carefully reviewed the fact findings of the Commission and find its conclusions, discussed above, to be amply supported by credible evidence.

We thus hold that the appointing authority sustained its burden of proving that the action taken against Ms. Williams was proper and warranted under the circumstances. Shelfo v. LHHRA, Pinecrest State School, 361 So.2d 1268 (La.App. 1st Cir.1978), writ denied 364 So.2d 122 (La.1978). Therefore, the decision of the Commission is upheld. We affirm its judgment. Appellant is cast for all costs.

AFFIRMED.


text:
    Dianne Black PAULEY v. Stephen Elliot PAULEY.
    No. 82 CA 0737.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.

      Christine M. O’Brien, Acadiana Legal Service, New Iberia, for plaintiff.
    Harold J. Rhodes, Morgan City, for defendant.
    Before COVINGTON, LANIER and ALFORD, JJ.
   COVINGTON, Judge.

Stephen Elliot Pauley appeals from the trial court’s judgment which granted custody of his minor son, Jason, to his former wife, Dianne Black Pauley. He was granted a divorce on the ground of Mrs. Pauley’s adultery and argues that her misconduct renders her unfit to care for their son. The trial judge found that the actions of Mrs. Pauley in no way reflected on her capability of raising Jason, and granted custody to her.

In the appellate review of cases involving child custody, the trial court’s determination of what is in the best interest of the child is given great weight, and will not be overturned unless there is a clear showing that the trial judge abused his discretion. Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); Stephenson v. Stephenson, 404 So.2d 963 (La.1981). A determination of the best interest of the child involves consideration of the totality of facts and circumstances of the child and the parents in each individual case. Ferguson v. Ferguson, 398 So.2d 1238 (La.App. 4th Cir.1981). In his reasons for judgment, the trial judge noted:

Jason is only five years old and this Court feels that he would be much better off living with his mother in Virginia rather than here in Louisiana. A child of those tender years can be better cared for by the mother. When the Pauleys were living in Virginia they apparently belonged to a Fundamentalist religion and Mrs. Pauley apparently could not handle the socializing in the area where she lived in Louisiana, but on her return [to Virginia] seems to have recovered some of these morals. The report of the State of Virginia’s authorities seems to confirm this, although I am basing my decision on what I heard in court and not what these people in Virginia tell me.

We cannot say that the trial judge abused his discretion in this case, and note that not only is his decision supported by the facts and circumstances surrounding this case, but also by the jurisprudence of this State. In Cleeton, the Supreme Court granted custody of three girls to the mother even though she had engaged in adultery, stating that:

To change the custody of these girls would punish their mother for past behavior when there was no proof of a detrimental effect on her daughters. An award of custody is not a tool to regulate human behavior. The only object is the best interest of the child. Id., at 1236, LSA-C.C. art. 157.

Another similar case is Stephenson, in which the Supreme Court upheld the award of custody of a four-year-old daughter to her mother who had been living in an adulterous relationship with a man. The Court found that the relationship had no detrimental effect on the young girl, and that the mother had provided excellent care for the child. Id., at 965-966.

In the case of Noblit v. Noblit, 407 So.2d 1366 (La.App. 3rd Cir.1981), the wife admitted to an act of adultery and the husband was awarded a divorce on this ground. She sought custody of the two youngest of the couple’s children, which was granted by the trial court and affirmed by the Court of Appeal. In discussing the best interest of the children, the trial judge stated (as reported in the appeal court’s opinion):

Mrs. Noblit has not been shown to be an unfit mother, morally or otherwise. To the contrary, various witnesses have testified that she is a good mother. To her discredit, she has been guilty of committing adultery since she and her husband separated. However, her conduct in this regard has not been flagrant and indiscreet and has not been shown to have taken place in the presence of the children ... The court further believes that a girl seven years of age and a boy three years of age need their mother. A girl of this age has special needs that a mother can best provide. The same is true of a boy three years of age.

Likewise, we find there was no manifest error in the trial court’s decision to award custody of Jason to Mrs. Pauley. He had been doing well under her care and supervision, and his mother was and is capable of raising him. It is in his best interest to remain in her custody.

Accordingly, for the above reasons, we affirm the decision of the trial court, at appellant’s costs.

AFFIRMED.


author: LANIER, Judge.

text:
    Eugene McGUIRE v. NATIONAL SUPER MARKETS, INC. and XYZ Insurance Corporation.
    No. 82 CA 0425.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.

      Anderson Council, Kenner, for plaintiff and appellant.
    James L. Durio, New Orleans, for defendant and appellee.
    Before COVINGTON, LANIER and ALFORD, JJ.
   LANIER, Judge.

This is a suit for damages in tort alleging that the plaintiff slipped, fell and injured himself in the defendant’s store. The trial court ruled that the defendant was not liable for the plaintiff’s damages. This devol-utive appeal followed.

I. FACTS

On Sunday, January 7,1979, the National Tea Company d/b/a National Super Markets (National) operated a store known as National Food Store # 37 on West Main Street in the City of Houma, Parish of Terrebonne, Louisiana. A light rain commenced to fall at approximately 6:00 A.M. and continued until the plaintiff, Eugene McGuire, went to the National store at approximately 10:00 A.M. When McGuire was in the entranceway of the National store, he slipped and fell in some water which apparently had been tracked into the store by previous customers.

On January 11,1979, McGuire was examined by Dr. Richard Landry and gave a history of having pain in his left knee for approximately three months. Dr. Landry examined McGuire’s knee and diagnosed his condition as an internal derangement of the knee. On January 17, 1979, McGuire was admitted to the Terrebonne General Hospital and gave Dr. Landry a history of having pain and swelling in his knee as a result of a fall at a local store. Surgery performed on McGuire’s left knee revealed a torn medial meniscus (cartilage) which was removed. McGuire was released from the hospital on January 20, 1979. On April 17, 1979, McGuire was discharged from medical treatment to return to work with no permanent partial physical impairment.

II. LIABILITY OF NATIONAL

The law applicable in this case is accurately set forth in Smith v. Winn Dixie Stores of Louisiana, Inc., 389 So.2d 900, 901 (La.App. 4th Cir.1980), as follows:

“The jurisprudence reflects the view that upon proof that a foreign substance was on the floor at the time the plaintiff entered the store; that the plaintiff stepped on this foreign substance; and that it caused her to slip, fall, and suffer injury, the burden shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent. The defendant, as store owner, can carry its burden by establishing that it was free from fault and that it exercised reasonable care in protecting its customers from foreign substances on the floor. Reasonable care is exercised when the store owner takes reasonable protective measures, including periodic inspections, in order to keep the floors and aisles free of substances or objects that may cause customers to fall. If the evidence presented is sufficient to establish that the store owner has carried its burden, then the presumption of negligence will be rebutted and the defendant will be exonerated from liability. Kavlieh v. Kramer, 315 So.2d 282, (La.1975); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Hanzo v. Travelers Ins. Co., 357 So.2d 1346 (La.App. 4th Cir.1978); Hyman v. National Super Markets, Inc., 353 So.2d 397 (La.App. 4th Cir.1977); Green v. Schwegmann Bros. Giant Supermarkets, Inc., 325 So.2d 621 (La.App. 4th Cir.1976). One other rule which must be considered here is that the storeowner is not the insurer of the safety of its customers and further that it does not have to keep its entranceways, aisles and passageways in perfect condition. Lott v. Winn-Dixie Louisiana, Inc., 280 So.2d 659 (La.App. 4th Cir.1973) [sic]; Rozelle v. Employers’ Liability Assurance Corp., 260 So.2d 757 (La.App. 2d Cir.1972).”

The trial judge in his excellent written reasons for judgment made the following observations:

“According to the evidence, plaintiff entered defendant’s store at about 10:00 a.m., at a time when a slow drizzling rain was falling. Plaintiff and his witness, Joe Williams testified that as they entered the store, a large mat was on the floor, no ‘Caution’ signs were visible and they were talking together. When plaintiff had walked perhaps three or four feet, he turned to his left and as he turned, he slipped. Plaintiff further stated that he slipped in water and he also observed that the floor was ‘tracked’ from other persons walking into the store; and when he slipped, he fell on his left knee causing him to sustain serious and disabling injuries.
“Mr. Vincent Sagona, National Super Market’s store manager, testified that the incident giving rise to this suit occurred on a Sunday morning. He was on duty and he had assumed responsibility for preparing the store entrance safety by placing a mat having dimensions of three feet by four feet at the entrance immediately inside the store. He had placed a sign stating ‘Caution Wet Floor’ near the entrance and had mopped the floor and had his mop and bucket nearby, so that he could mop up the floor frequently. In fact, Mr. Sogona stated that he had mopped the entire area from the door mat the [sic] the approximate area where plaintiff fell, and beyond approximately fifteen to twenty minutes prior to the slip and fall accident.
“In this case, it was established that a foreign substance (water) was on the floor of defendant’s store and it was more probable than not that stepping on a wet area caused him to slip and fall. Consequently, under our jurisprudence, the burden shifted to defendant to rebut this presumption of its negligence. This court is of the opinion that the defendant did discharge this burden.
“To require a storekeeper to keep a floor completely dry during a time of rain or to hold him responsible for every slick place due to tracked-in rain water would impose an unreasonable standard of care and would, in effect, make him an insurer of the customer’s safety. Clearly his [sic] is not required. Further, this court is of the opinion that the warning sign posted gave the plaintiff adequate notice, if such was needed, that a slippery condition could be expected and it was incumbent upon him to exercise care. Plaintiff stated he did not see any warning signs, nor did Joe Williams. This court feels that they were in conversation and this distracted both from seeing what they should have seen.”

The evidence shows that Vincent Sa-gona, the co-manager for the National store, personally put two floor mats at the entranceway of the incoming door of the store, put one floor mat at the exit (outgoing) door, placed a sign on the left side of the incoming doorway that contained the words “Caution-Wet Floors”, put a mop and bucket by the incoming doorway and mopped the area as needed every fifteen to twenty minutes. Compare Thomas v. Winn Dixie Louisiana, Inc., 407 So.2d 520 (La.App. 4th Cir.1981) and Smith v. Winn Dixie Stores of Louisiana, Inc., supra, with Peralta v. Schwegmann Bros. Giant Supermarkets, Inc., 406 So.2d 720 (La.App. 4th Cir. 1981), writ denied 410 So.2d 762 (La.1982) and Edwards v. Piggly Wiggly Operators Warehouse, Inc., 401 So.2d 493 (La.App. 2nd Cir.1981). We have carefully reviewed the transcript and the evidence and cannot say that the trial judge was clearly wrong in his factual finding that the defendant successfully rebutted the presumption of negligence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

III. MOTION FOR NEW TRIAL

McGuire sought a new trial on two grounds: (1) Lack of evidence to support a finding of contributory negligence; and (2) newly discovered evidence.

McGuire’s claim that there was insufficient evidence to support a finding of contributory negligence lacks merit because the trial judge based his decision on the factual finding that National successfully rebutted the presumption that it was negligent and thus exonerated itself from liability. The trial judge did not specifically find, as a matter of fact, that McGuire was con-tributorily negligent.

McGuire also alleged in his application for a new trial that on September 22, 1981, in the matter of Mary Sneeze v. National Super Markets, No. 51,909, on the docket of the Thirty-Second Judicial District Court, the porter and maintenance man for the National store testified that he had been employed by National for twenty-three years, that he had been employed in the Houma store for the past ten years, that the cleanup policy of the store was not of a determinative nature but was on an “as needed” basis, and that no particular person was given the specific responsibility for watching for water at the entrance to the store or keeping it dry during rainy days. In order to secure a new trial, the mover has the burden of showing that the newly discovered evidence would tend to change the result of the first trial. Baltzar v. Missouri Pacific Railroad, 406 So.2d 324 (La.App. 3rd Cir.1981); Cable v. Cazayou, 351 So.2d 797 (La.App. 1st Cir.1977). This newly discovered evidence deals with the general cleanup policy of the National store. In the instant case, the trial judge accepted as fact the testimony of Vincent Sagona showing what he specifically did on the day in question. In this posture, the evidence concerning the general cleanup policy of the store is of marginal relevance and would not change the result.

IV. CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed at the appellant’s costs.

AFFIRMED.


author: ALFORD, Judge.

text:
    FOLSOM ROAD CIVIC ASSOCIATION v. PARISH OF ST. TAMMANY Through ST. TAMMANY PARISH COUNCIL.
    No. 82 CA 0296.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.

      • Delbert G. Talley, Gretna, M.J. Le Gard-eur, Jr. Covington, for plaintiff.
    Julian J. Rodrigue, Jr., Covington, for intervenor.
    Marion B. Farmer and James R. Jenkins, Covington, for appellee.
    Before COVINGTON, LANIER and ALFORD, JJ.
   ALFORD, Judge.

This is a suit by the Folsom Road Civil Association against the Parish of St. Tammany through the Parish Council and the Parish Department of Planning and Engineering seeking a writ of mandamus ordering the Parish Council to withdraw approval of the preliminary subdivision plan for Lake Hills Subdivision. Additionally, plaintiff seeks to force the Department of Planning and Engineering to comply with the procedures set out in St. Tammany Parish Ordinance 499. (Ordinance 499 is St. Tammany Parish’s subdivision ordinance.) The developers of Lake Hills Subdivision have intervened.

The Lake Hills development was given tentative approval on January 24, 1980, by the St. Tammany Parish Planning Commission. Subsequent to this approval, the Parish Council abolished the Planning Commission on March 5, 1981, and substituted an advisory board in its place. After receiving the approval of the Parish Council Subdivision Committee on May 21, 1981, the full council gave preliminary approval of phases I and II of the project. This suit followed on August 21, 1981.

In its petition, plaintiff asserts that the Lake Hills project has not met all the requirements set forth in Ordinance 499; specifically, tentative approval was conferred without the required notice to adjoining landowners and the submission of a master plan. Moreover, preliminary approval was given before various sanitation and road construction provisions were adhered to and without obtaining signatures to project documents.

In response to the petition, defendants filed an exception of unauthorized use of summary proceedings and an answer in the form of a general denial. In his written reasons, the trial judge sustained the exception on the ground that the decision to approve or disapprove a subdivision plat is not a ministerial duty. The trial court further held that it was not necessary for the Department of Planning and Engineering to issue the work permit since the approval of the preliminary plan by the Parish Council was tantamount to issuance of the permit.

Plaintiff asserts three specifications of error. Initially, plaintiff argues that the trial court improperly considered defendants’ exception of unauthorized use of summary procedure. We reject this argument. Because mandamus is a summary procedure (LSA-CCP Art. 2592), exceptions to such proceedings must be filed prior to the time assigned for the time assigned for the trial (LSA-CCP Art. 2593). The record reflects that defendants’ exception was filed prior to the hearing; thus, defendants’ exception was timely and properly considered by the trial court.

Plaintiff’s second and third specifications of error encompass the crux of its complaint. These specifications pose a dual question: Was the tentative and preliminary approval of the subdivision plans consistent with the requirements of Ordinance 499; and if it was not, can the Court require compliance via a writ of mandamus?

It is significant to note that tentative approval of the subdivision was conveyed prior to the time that the Planning Commission was abolished. Additionally, Ordinance 499 was enacted pursuant to LSA-RS 33:101, et seq., the enabling legislation of local planning commissions. Consequently, at the time tentative approval was given, the defendant was required to be in conformity with the provisions of LSA-RS 33:101, et seq., and Ordinance 499. LSA-RS 33:113 requires that notice by certified mail shall be sent to all adjacent landowners prior to approval or disapproval of the plat. More particularly, Ordinance 499 requires that the list of landowners be submitted at the same time the plat is submitted for tentative approval. Finally, the ordinance requires that notification of adjoining landowners shall precede approval of the tentative and, logically, the preliminary plan. A review of the record indicates that this procedure was not followed. This failure is, in the Court’s opinion, a serious violation of the ordinance and will support plaintiff’s writ of mandamus. Although the Court feels the parish may have the discretion to approve or disapprove the plan itself (cf. Melancon v. Police Jury of Lafayette, 301 So.2d 715, La.App.3rd Cir.1974), we also feel the parish has no discretion in following the requirements of its own ordinance (cf. Old Jefferson Civic Association, Inc. v. Planning Commission for the City of Baton Rouge and the Parish of East Baton Rouge, 364 So.2d 193, La.App.1st Cir.1978), and that mandamus is the appropriate vehicle to enforce compliance.

Plaintiff next argues that Ordinance 499 requires that the Department of Engineering issue the work permit rather than the current practice which equates approval of the preliminary plan by the council with the issuance of a work permit. A review of the preliminary approval check sheet, together with the testimony of Rene’ Harris, the parish Director of Engineering, convinces the Court that all of the safeguards of Ordinance 499 are being met by the current procedure. It is the engineer who marks the check sheet when the various elements have been completed by the developer and then reports to the council’s subdivision regulations committee, which recommends approval or disapproval of a work permit. Thus, by virtue of the engineer’s supervision over the compliance with the preliminary approval check sheet, technical control over the project remains with the Department of Engineering and the intent of Ordinance 499 is fulfilled.

Finally, the Court feels that the other alleged irregularities in the council’s procedure are without merit. The preliminary check sheet when read in conjunction with the preliminary and final flow chart, a review of the record, and the custom of thé council indicates that all relevant provisions of the ordinance have been or will be complied with before final approval is given. Accordingly, mandamus is not appropriate as to these.

Thus, the Court overrules the maintenance of the exception of unauthorized use of summary proceeding and grants plaintiff’s writ of mandamus only insofar as it commands the St. Tammany Parish Council to give notice of the project and an opportunity to be heard to the adjoining landowners prior to final approval of the development being given. Appellees are to pay all costs of this appeal in the amount of $534.30.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: GULOTTA, Judge.

text:
    Luther PRICE, et al v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 13270.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    John E. Ruiz, Jr., New Orleans, for appellant.
    Floyd F. Greene, New Orleans Public Service, Inc., New Orleans, for appellee.
    Before GULOTTA and BYRNES, JJ., and G. WILLIAM SWIFT, Jr., J. Pro Tern.
   GULOTTA, Judge.

Plaintiff-bus passengers appeal the dismissal of their suit against New Orleans Public Service, Inc. (NOPSI) for personal injuries sustained in a bus-auto collision. We affirm.

The accident occurred on June 29, 1977, on Louisa Street between Higgins and La-freniere Streets in the City of New Orleans. At the scene, Louisa is a north-south, four-lane divided thoroughfare that curves 110-120° between these cross streets. The NOPSI bus was moving in a southerly direction on Louisa when its right front bumper struck the left rear end of the automobile.

According to plaintiffs’ version of the accident, the bus was traveling at an excessive rate of speed when rounding the curve and rear-ended the left turning automobile traveling in the same direction. NOPSI’s version, on the other hand, was that the automobile suddenly came from a parked position on Louisa immediately into the path of the oncoming bus and the bus driver could not avoid the collision.

In oral reasons for judgment dismissing plaintiffs’ suit, the trial judge found plaintiffs had not sustained the burden of proving that the bus had been going at an excessive rate of speed prior to impact. He further stated:

“New Orleans Public Service does not have any burden except to show that they were not negligent provided there was some evidence that they were. And we don’t find, after weighing all the testimony of the witness’ carefully and noticing continually that each and every witness in the essential facts about this case gave a different version of what occurred.”

Appealing, plaintiffs contend the trial judge erred: 1) in imposing a “preponderance of the evidence” burden on plaintiffs, instead of requiring NOPSI to exculpate itself from the “slightest degree of negligence” after plaintiffs had established a prima facie case; and 2) in finding the bus had not been traveling at an excessive rate of speed when virtually all the plaintiffs and an independent witness testified the bus seemed to be going too fast. This excessive speed, plaintiffs claim, constitutes a “slight” if not a “great deal” of negligence under the circumstances.

Proof of injury to a fare-paying passenger imposes upon the carrier the burden of showing it was free from the slightest negligence. Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1975); Simms v. Estridge, 346 So.2d 300 (La.App. 4th Cir.1977). Nevertheless, when a carrier is confronted with a sudden emergency through no fault or negligence of its own, it is not liable for resulting injury to its passengers. Carter v. New Orleans Public Service, Inc., supra; Walker v. New Orleans Public Service, Inc., 245 So.2d 763 (La.App. 4th Cir.1971).

Assuming the trial judge misstated plaintiffs’ burden of proof, we conclude his error is harmless in this case. Under the proper test of liability, NOPSI exculpated itself from the presumption of negligence by showing the bus driver had been confronted with a sudden emergency and could not have avoided the accident.

Although plaintiffs’ witnesses .testified the bus had been traveling at an excessive rate of speed, the bus driver stated he was driving 30 mph in a 35 mph zone. Further, as noted by the trial judge, no complaints of excessive speed were made to the investigating police officer shortly after the accident.

According to the NOPSI driver, the automobile “pulled out” into his path from a parked position approximately “a bus or a bus and a half” length ahead of the bus. Implicit in the judgment of the trial court are conclusions that the bus driver was not moving at an excessive rate of speed and also that the bus driver, faced with a sudden emergency, exculpated himself from negligence. We find no error. The judgment is affirmed.

AFFIRMED.

      . According to the bus driver, NOPSI buses have a “governor” that limits the bus’ maximum speed to 40 mph, and most city buses run at speeds of approximately 37 mph. The investigating police officer testified the speed limit on Louisa at the scene was 35 mph.

      . It is apparent from a reading of the testimony of the bus passengers that their statements lack credibility.


author: BARRY, Judge.

text:
    Green T. HARRIS, Jr., Earline Harris, Arthur Petivan, and Vera Petivan v. GUARDIAN FUNDS, INC.
    No. CA-0096.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.

      Louis A. Gerdes, Jr., Gerdes & Valteau, New Orleans, for plaintiffs-appellees.
    Roger H. Fellom, New Orleans, for defendant-appellant.
    Before BARRY, KLEES and AUGUSTINE, JJ.
   BARRY, Judge.

Defendant appeals a judgment ordering it to transfer title to property purchased at a tax sale.

On April 27, 1981 plaintiffs filed a petition to redeem property the defendant purchased at a tax sale on May 15, 1978. On July 30, 1981 defendant filed exceptions of no cause and no right of action and prescription which were overruled. Defendant answered and reconvened on November 5, 1981, asserting ownership because plaintiffs did not redeem during the three year statutory period. On April 7, 1982 plaintiffs amended their pleading to include their names in the body of the petition and alleged ownership of the property on the date of the tax sale. Defendant excepted to the amended petition urging the three year peremptive period. The Trial Judge ordered title transferred to plaintiffs and reimbursement to defendant for the taxes, plus interest and penalties. Defendant’s reconventional demand was dismissed.

Defendant’s appeal claims the lower court did not dispose of its exception to the amended petition, that the amended petition cannot relate back to cure the defective petition, and the doctrine of peremption requires payment of the past-due taxes within three years of the tax sale.

Defendant’s exception to the amended petition was tacitly overruled by the judgment in plaintiffs’ favor and this issue is without merit.

The specification regarding application of the peremption doctrine relates to the basis to redeem property sold for unpaid taxes, LSA-Const. Art. 7 § 25(B):

The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.

Procedures for redemption are found in LSA-R.S. 47:2221, 2222.

The defendant/tax purchaser argues plaintiffs had three years to redeem the property and this time period is one of peremption, not prescription, and cites Succession of Pizzillo, 223 La. 328, 65 So.2d 783 (1953) which distinguished the two:

The difference between prescription and peremption is that the former simply bars the remedy whereas, in the latter, time is made of essence of the right granted and a lapse of the statutory period operates as a complete extinguishment of the right. Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899; Brister v. Wray-Dickinson Co., 183 La. 562, 164 So. 415 and Collier v. Marks, 220 La. 521, 57 So.2d 43. Peremption admits of no interruption or suspension; performance of the required act must be accomplished within the specified time or else the right of action no longer exists. Id. p. 786.

Defendant submits that “performance of the required act ... within the specified time” obliged plaintiffs to make payment to either the tax collector or tax purchaser by May 15, 1981, three years from recordation of the tax sale. It asserts after this period passed plaintiffs’ right to redeem was lost and their only recourse was to attack the validity of the tax sale.

We find no authority on whether plaintiffs’ lawsuit within three years of the tax sale satisfied the constitutional requirement for redemption. LSA-R.S. 47:2222 provides for payment to the tax purchaser and also specifies payment “may be made either to the purchaser or to tax collector .... ” Unlike this case, prior decisions involve situations where no action was taken for three years. There are cases which permitted redemption where the tax purchaser refused the tax debtor’s tender, even though there was no actual redemption within three years.

The codal limitation on survival actions (Art. 2315) is one of peremption and this right is preserved by filing suit. However, prior decisions hold that filing suit does not suspend a peremptive period. This latter case law is inapposite, however, because it involves the re-inscription of a mortgage and says filing suit does not satisfy the requirement of actual reinscription.

We recognize a tax purchaser defending ownership could use dilatory tactics which might consume a long period of time and effectively circumvent a tax debtor’s ability to redeem. Plaintiffs’ counsel asserts negotiations took place for months before their petition was filed. It was obviously in plaintiffs’ best interest to redeem their property without litigation, but if this could not be accomplished then filing suit was a viable alternative. We find no constitutional mandate to consummate the redemption within three years. Rather, “the property sold shall be redeemable for three years ... . ” (Our emphasis)

LSA-C.C.P. Art. 421 provides “(a) civil action is a demand for the enforcement of a legal right. It is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction .... ” Plaintiffs apparently could not amicably complete their redemption within three years and with time running out had no alternative but to file this action against the tax purchaser (instead of the tax collector) and did so within the statutory period. We hold the act of filing suit within three years is sufficient to make the property “redeemable.”

Defendant claims the original petition did not state a right or cause of action because it did not specify plaintiffs’ interest in the property (whether as owners, heirs, legatees, creditors or otherwise), and the amended petition cannot relate back because “a petition which completely fails to state any cause of action at all should not be considered as interrupting prescription,” Meyers v. Istre, 379 So.2d 1181 (La.App. 3d Cir.1980); Succession of Roux v. Guidry, 182 So.2d 109 (La.App. 4th Cir.1966) writ refused 248 La. 1106, 184 So.2d 27; Lege v. Vermilion Parish School Board, 360 So.2d 664 (La.App. 3d Cir.1978).

These decisions involve extreme situations and are distinguishable from this case. In Meyers, supra, plaintiff filed an affidavit (instead of a petition) which gave no notice to the defendant of the fact situation on which the claim was based. In Succession of Roux, supra, the original plaintiff had no right to file suit. The court refused to allow substitution of plaintiffs by an amended petition because no proper plaintiff filed suit within the peremptive year. Lege, supra, held that procedures to contest an election as set forth in the applicable statutes were radically different from ordinary procedures and, by the terms of the statute, were exclusive. Since the original petition failed to comply, the amended petition did not relate back.

LSA-C.C.P. Art. 1153 provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

This article permits amendment when the original petition gives fair notice to the defendant of the general factual situation out of which the claim arose. Judge (then Justice) Tate, in Amendment of Pleadings in Louisiana, footnote 9, supra, at p. 233, stated:

Like its federal counterpart, the article is designed to permit amendment despite a technical prescriptive bar to the matters alleged by the amendment — provided that the original pleading gives fair notice of the general fact situation out of which the amended claim or defense arises. The article deliberately adopts no test of identity of cause or legal theory between the original and amending petitions; the amendment’s thrust need only be based upon or factually relate to (“arise out of”) the “conduct, transaction, or occurrence” originally alleged. If the original timely pleading gives actual notice to a party that a formal claim or defense is being made based upon a particular factual situation, no essential protective purpose of a prescriptive statute is violated by permitting relation back of a post-prescription amendment based on the same factual situation. Through the original pleading the opponent knows that judicial relief is sought arising from the general factual situation alleged, and he is put on notice that his evidence concerning it should be collected and preserved. The fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and from the loss or nonpreservation of relevant proof. They are designed to protect him against lack of notification of a formal claim within the prescriptive period, not against pleading mistakes that his opponent makes in filing the formal claim within the period.

See also Baker v. Payne and Keller of La., Inc., 390 So.2d 1272 (La.1980).

In the instant original petition, defendant was apprised of the relief sought (redemption of the Gov. Nicholls Street property), with a property description, and the facts out of which the demand arose (the tax sale recorded May 15, 1978). The transaction or occurrence giving rise to the demand (redemption) remained unchanged and clearly provided defendant with fair notice and sufficiently stated a cause of action.

While the original petition stated a cause of action, it did not recite plaintiffs’ interest, i.e., that they are the former owners of the property (tax debtors) or that they were redeeming in the name of the tax debtor. LSA-C.C.P. Art. 934 provides in part: “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment .. .. ” (Emphasis supplied) The technical defect was cured by the amended petition which alleged: “on the date mentioned herein, plaintiffs were the owners of the property described in the original petition.” Also, defendant certainly was aware of plaintiffs’ status which is specified on the conveyance certificate in the record.

Mindful that the law favors redemption of property sold for unpaid taxes, that the tax debtor’s right to reacquire his property is founded in equity, and the lack of statutory guidance as to what is required, we hold this lawsuit against the tax purchaser was sufficient and timely.

The district court judgment is affirmed at appellant’s costs.

AFFIRMED.

      . The petition specifies 2006 Gov. Nicholls Street, yet other documents, including a certificate from the Conveyance Office, state 2007 Gov. Nicholls.

      . The four plaintiffs’ names were listed in the styling of the case and in the prayer.

      .LSA-R.S. 47:2221: Property sold at a tax sale shall be redeemable in accordance with Section 25 of Article VII of the constitution of 1974. Nothing in this Section shall be construed so as to affect in any way, the principle that as to a tax debtor-owner in possession, prescription does not begin against him and in favor of the tax title purchaser until such tax debtor-owner has been first dispossessed.
      LSA-R.S. 47:2222: The person redeeming property, in whole or in part, shall pay all taxes assessed upon the property redeemed subsequent to the tax sale with interest at the rate of one per centum (1%) per month until redeemed.

      .. . the owner or any person interested personally, or as heir, legatee, creditor or otherwise, may redeem a lot or lots or parcels of ground by paying to the tax purchaser the proportionate taxes due thereon together with interests, costs, and five per centum (5%) penalty thereon.
      ‡ sj< }}{ #
      The payment required for the redemption of immovable property adjudicated to a purchaser for taxes, may be made either to the purchaser or to tax collector making the sale, or to his successor in office.

      . Securities Mortgage Co., Inc. v. Triplett, 374 So.2d 1226, 1227 (La.1979).

      . MacLeod v. Hoover, 159 La. 244, 105 So. 305 (1925); Land Inv. Co. v. Jethro Co., 207 La. 597, 21 So.2d 755 (1945).

      . Mejia v. U.S., 152 F.2d 686 (5th Cir.1946), cert. denied, 328 U.S. 862, 66 S.Ct. 1366, 90 L.Ed. 1632; McClendon v. State, through Dept. of Corrections, 357 So.2d 1218 (La.App. 1st Cir.1978).

      . McElrath v. Dupuy, 2 La.Ann. 520 (1847); Hyde v. Bennett, 2 La.Ann. 799 (1847); Murff v. Ratcliff, 19 La.App. 109, 138 So. 908 (2d Cir.1932); 13 Tul.L.Rev. at 39, footnote 97 (1938).

      . This holding has been criticized. See Justice Tate’s article, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211 (1969) at 235, 236.

      . Fleckinger v. Smith, 319 So.2d 881 (La.App. 4th Cir.) writ denied 323 So.2d 131 (La.1975).

      . Gaudet v. Lawes, 197 So.2d 723 (La.App. 1st Cir.1967).


text:
    John TARANTO v. E.R. COOK, et als.
    No. CA-0137.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.

      Emile L. Turner, Jr., Turner & Young, New Orleans, for plaintiff-appellee.

      Paul B. Deal, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appellants.
    Before BARRY, KLEES and AUGUSTINE, JJ.
   BARRY, Judge.

Two defendants appeal a judgment in an “executive officer” tort suit and plaintiff answered asserting compensation benefits were erroneously offset and the award was inadequate.

On January 14, 1970 plaintiff was a “spare” assigned as an “anode man” and was injured while attempting to “pull channels” in the pot room at the Kaiser Aluminum plant in Chalmette. The “pots” were electrolyte furnaces in which aluminum ore is reduced to pure aluminum. A “channel” is a 1200 pound piece of metal, “u” shaped, ten inches across and twelve feet long. Channels are attached to the side of the “pot” and, during the process, must be removed (“pulled”) before they melt and lower the aluminum grade. To pull channels two men work as a team: one unbuckles the channels and the other (the plaintiff) does the actual “pulling.” There is no dispute that at least one channel had been pulled prior to the accident and plaintiff was starting to pull channels on the B side of pot 113. The rig, consisting of a Clar-kat and a flat bed trailer holding a red hot channel and two channel pulling motors, had been positioned in front of pot 113. The channel on the rig was still hooked up to the motors by cables. Plaintiff stepped between the Clarkat and trailer to connect the air hose to the air drop that was bolted to pot 113. When he opened the air valve, the right hand channel pulling motor was activated, causing the drum to turn and the cable to wind up, pulling the red hot channel toward the plaintiff, striking him in the back of both legs, pinning him to the Clar-kat. Plaintiff received third degree burns to the calf of each leg resulting in a finding of total and permanent disability.

This tort suit was filed on January 13, 1971 against five Kaiser employees. Service was not requested until September 26, 1973 and defendants’ exceptions of prescription were overruled. On August 21, 1974, Kaiser intervened for paid compensation benefits but on January 28, 1975 dismissed its intervention without prejudice. Discovery revealed the defendants were not insured but that Kaiser’s by-laws provided indemnity to its employees for any loss from claims arising out of employment. As a result, plaintiff filed a supplemental and amended petition adding Kaiser as a defendant. In its answer Kaiser claimed a credit for $19,040.59 paid in compensation benefits.

Trial was held in April, 1980, more than ten years after the accident. A judgment, with written reasons, was rendered on March 24, 1982 in plaintiff’s favor and against Fourroux (the shift foreman and plaintiff’s immediate supervisor) and Kaiser in the amount of $90,894.40 subject to a credit for compensation benefits paid. The other four employees were dismissed.

PRESCRIPTION

Defendants contend that plaintiff deliberately withheld service of process for more than a year and the claim prescribed. The accident occurred January 14, 1970 and suit was filed January 13, 1971 within the one year prescriptive period. Service was not requested until September 26, 1973 and was accomplished October 2, 1973. While we do not condone any effort to thwart the orderly and timely flow of litigation, the filing of suit interrupts prescription: service and citation within the period is not essential. LSA-R.S. 9:5801, Schrader v. Coleman E. Adler & Sons, 225 La. 352, 72 So.2d 872 (1954); King v. American Motorists Insurance Co., 295 So.2d 26 (La.App. 4th Cir. 1974); Kachelmyer v. Ames, 335 So.2d 525 (La.App. 1st Cir.1976).

NEGLIGENCE OF EXECUTIVE OFFICER

Defendants contend the criteria for imposing individual liability on an “executive officer” as set out in Canter v. Koehring Co., 283 So.2d 716 (La.1973) are not satisfied in this case. They assert the trial court’s finding that Fourroux negligently and improperly attempted to repair the channel pulling motor before the accident is manifestly erroneous and not supported by the evidence.

Plaintiff’s witnesses all testified the equipment had been repaired and plaintiff confirmed the spring was not broken when he used the motor to pull the channel shortly before the accident. Thus, defendants argue the most likely explanation is that the spring broke after plaintiff pulled the channel. That being the case, Fourroux could not have been negligent in causing the spring to break or in failing to discover the broken spring. It is also their position Fourroux had no obligation to make such a discovery, that it was “the man using the equipment who has the continuous obligation to see to it that the equipment is functioning properly.” We disagree.

Canter, supra, at p. 721 provides the following standard relative to executive officer liability:

1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.

See also Pisciotta v. Allstate Insurance Co., 385 So.2d 1176 (La.1980) (on rehearing); Lytell v. Hushfield, 408 So.2d 1344 (La.1982).

To determine whether Fourroux is liable to the plaintiff under the Canter criteria we must examine the specific facts of this case.

The employer, Kaiser, owed a duty to provide its employee, plaintiff, with a reasonably safe place to work. This in-eludes equipment used to perform that work. That duty was delegated by Kaiser to the shift foreman, Fourroux, giving him the daily responsibility to see that employees had a safe place to work, including the equipment. We believe this finding was clearly established by every witness in a supervisory position in the pot room. Cook, the pot room superintendent, Given, a temporary shift foreman, Hitch, the line foreman and Fourroux’s immediate supervisor, and even Fourroux testified that each day prior to the beginning of a shift, the shift foreman going off, along with the general (or line) foreman and the shift foreman going on would “walk the line” together. The purpose was to check out the line and equipment and to be advised by the previous shift foreman of any problems. Cook explicitly stated the purpose was to determine if the equipment was in safe and operating condition. Fourroux admitted his duties included the safety of his men and the equipment. Any trouble with equipment encountered by the workers was reported directly to him, the shift foreman, who was responsible for calling maintenance to make all repairs. Hence, Four-roux had a personal duty toward plaintiff that had not been delegated to anyone else.

Finally, we must determine if Four-roux breached this personal duty to plaintiff through his own “personal fault” and if this breach specifically caused plaintiffs injuries. As we noted, Fourroux was delegated daily responsibility to insure plaintiff safe working conditions and equipment. There is ample evidence for the Trial Judge to have concluded the right channel pulling motor was not in proper condition and that Fourroux knew or should have known of the particular defect and failed to take prudent action to remedy the hazardous situation. The testimony of Givens, the previous shift foreman, and Noland, the anode man on the previous shift, reveals the defect was discovered on the previous shift. We have no basis to assume the routine practice where the three foremen walked the line and discussed equipment problems prior to the new shift did not occur on this occasion.

There was also testimony by plaintiff and his partner, Aydell, that they called Four-roux to inspect the motor before they used it that day. Plaintiff: “Something was wrong with the right hand motor—the safety guard was bent against the valve.” Ay-dell: “Something was bent. .. . We couldn’t use it.” Plaintiff also testified that Fourroux, instead of calling maintenance to repair the motor (as required by Kaiser), got a wrench and attempted to fix the problem. Not only was this negligence, but as the Trial Judge pointed out, it violated “company policy and the compact between the union and Kaiser.”

Following the criteria in Canter, supra, and for the above reasons we feel it is clear that Fourroux was an executive officer and liable.

Fourroux was responsible for plaintiff’s safety. The totality of the evidence leads us to conclude that Fourroux was either aware or should have been aware that a dangerous condition existed and needed repair. He negligently failed to take appropriate action to correct the hazardous condition thereby depriving plaintiff of a protection owed to him by his employer. We find the risk of harm from the breach of this duty was reasonably foreseeable. Thus, Fourroux’s breach (imposed by the employment relationship) is actionable negligence because it created or maintained an unreasonable risk of harm. Johnson v. Schneider, 271 So.2d 579 (La.App. 1st Cir.1972), Payton v. Travelers Ins. Co., 373 So.2d 1324 (La.App. 4th Cir.1979) writ denied 377 So.2d 119 (La.1979).

CONTRIBUTORY NEGLIGENCE

Defendants argue it is logical to assume the spring broke spontaneously without the knowledge of plaintiff or Fourroux, and alternatively, the spring broke on the prior shift and was broken when plaintiff first used the equipment and he was con-tributorily negligent. While there was testimony indicating the spring broke on the prior shift, there was no evidence that the lever malfunctioned when Taranto and his partner Aydell pulled the channel before the accident. To the contrary, both plaintiff and Aydell testified the motor was fixed and tested after it was reported to Fourroux and worked on. Also, both stated it operated properly when they pulled the channel on the rig. Contributory negligence is subject to the manifest error standard of review and the evidence does not support that conclusion.

LOST WAGES

Defendants argue plaintiff quit his job voluntarily, for personal reasons, and is not entitled to lost wages because “he was paid those wages while ill, could have remained on the job had he so chosen and would even today, unless laid off for other reasons, be employed by Kaiser with the same wages as everyone else in his classification.” Plaintiff counters he was forced to quit because of being assigned work beyond his capacity and the company doctor pressured him to return to the pot room.

There is.some evidence plaintiff was pressured by Kaiser. He stated he wasn’t able to do all the jobs assigned. For example, at one point he was assigned to steam bathrooms with jet steam machines. He said he was unable to do this because his legs were sensitive to heat. He also testified he couldn’t perform the allotted jobs because he was favoring his left leg. This irritated his right leg, kept him off-balance, and eventually created lower back problems. When he complained to first aid he was told it was nothing and Dr. Wolfe (the plant doctor) told him he was ready to go back to his regular job. There was some evidence plaintiff had personal problems which might have entered in his decision to leave New Orleans for Houston where he became a deer guide.

As stated earlier, this Court found plaintiff totally and permanently disabled. The evidence clearly shows his earning capacity was reduced by this injury. Plaintiff received his last pay in October, 1971. Since then he worked as a deer guide, returned to New Orleans and tended bar, and since 1976 has been a process server with the St. Bernard Sheriff’s Office. Plaintiff did not have his tax returns prior to 1976, but he did for 1976, 1977, 1978. In those years he earned $6,637.84, $6,464.92, $8,248.00. He estimated his earnings for 1979 would be between $15,000 and $16,000. At the time of trial he was earning $775 per month. An “anode man,” on the other hand, was earning $9.73 per hour or in the neighborhood of $1,686.53 per month. Plaintiff also testified an anode man would have made $13,-548.36, $14,908.68, $16,761.96 for those years. The figures presented by defendants’ witness, Mr. Nunnery, were roughly the same. The totality of evidence does not indicate the Trial Judge abused his discretion in awarding $28,394.40 for lost wages.

PLAINTIFF’S ANSWER

Plaintiff claims the amount awarded for pain and suffering should be increased from $10,000 and we agree. We are concerned with obviously severe third degree burns which were excrutiating. Plaintiff went through three surgical procedures (including skin grafts from his stomach) and was hospitalized approximately thirty days. For six weeks he wore a cast from his waist down both legs, then used a wheelchair and crutches. Clothing irritated the grafted areas which remain sensitive to any form of heat (sun, hot water). Recovery was slow, very painful, and his daily activities and lifestyle will be affected for years.

Even though the Trial Judge has much discretion in setting quantum, $10,000 for this traumatic experience is indeed paltry and should be increased to $50,000, which is adequate though the lowest amount that should be awarded to this particular plaintiff for this particular injury. Reck v. Stevens, 373 So.2d 498 (La.1979). The sum of $7,500.00 was awarded for scars and disfigurement which is low, but adequate.

Finally, plaintiff submits the credit given to Kaiser for paid compensation should not be allowed. He asserts Four-roux didn’t pay this money nor was he obligated to do so. Kaiser was sued as indemnitor of its executive officers, but was self-insured and paid the following compensation benefits:

Medical expense $ 3,089.59
Weekly compensation 1,451.00
Compromise settlement 14,500.00
TOTAL: $19,040.59

The employer is entitled to recover from negligent third parties the compensation actually paid. LSA-R.S. 23:1101. This right to reimbursement of compensation actually paid takes preference over the claim of the employee. LSA-R.S. 23:1103. The purpose of this apportionment is to prevent double recovery by an employee for the same element of his damages. The employer will not be reimbursed for any items which the employee did not recover from the third person. Fontenot v. Hanover Insurance Co., 385 So.2d 238 (La.1980). However, no medicals were awarded by the Trial Judge and this amount is not recoverable by the employer and cannot be offset.

Accordingly, the judgment of the trial court is amended to increase the award for pain and suffering from $10,000.00 to $50,-000.00 and to add $3,089.59 for medical expenses to the net award. In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The accident occurred prior to the 1976 amendment by Act 147 to LSA-R.S. 23:1032 which limited civil suits against “executive officers” to injuries arising from “intentional” acts.

      . A Clarkat is a motorized vehicle, similar to a forklift without the lift or a golf cart, which is driven by the worker and used to pull the trailer containing the motors and pulled channels.

        .Taranto v. Kaiser Aluminum & Chemical Corporation, 280 So.2d 403 (La.App. 4th Cir.1973).

      . LSA-R.S. 23:13 provides: Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.

      . Footnote 3, supra.

      . This figure is calculated on the base hourly rate and does not reflect variables, such as the hourly rate increases due to the type of shift worked, the number of Sundays (time and a half) and shift premiums (whenever the work week is not a Monday to Friday week) — all of which would increase the salary.