text:
    Oscar McCOY, et ux., Plaintiff-Appellant, v. FRANKLIN PARISH POLICE JURY, et al., Defendant-Appellee. and Duane Ray SIKES, et ux., Plaintiff-Appellant, v. FRANKLIN PARISH POLICE JURY, Defendant-Appellee.
    Nos. 14886, 14887.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      McKeithen, Wear & Burns by Russell A. Woodard and Cynthia T. Woodard, Columbia, for plaintiffs-appellants.
    Lowen B. Loftin, Dist. Atty. and Glynn D. Roberts, Asst. Dist. Atty., Rayville, for defendants-appellees.
    Before JASPER E. JONES, FRED W. JONES and NORRIS, JJ.
   NORRIS, Judge.

Plaintiffs appeal an adverse judgment in favor of the Franklin Parish Police Jury rejecting their claims for damages arising out of a one vehicle accident in these consolidated cases assigning in essence three issues for our consideration:

(1) The finding of the trial court that the driver of the automobile involved in the accident, Margie McCoy Sikes, was contributorily negligent;
(2) The finding of the trial court that the guest passenger, Lula B. McCoy, was contributorily negligent;
(3) The failure of the trial court to impose the doctrine of strict liability under Louisiana Civil Code Art. 2317.

The trial court in its “Reasons for Judgment” concluded “This collision occurred in the court’s opinion because of the negligence of Mrs. Sikes.” However, the court then proceeded to find both Mrs. Sikes and Mrs. McCoy contributorily negligent. Because of the court’s findings, in addition to issues one and two listed above, we must consider for purposes of this appeal whether or not the Franklin Parish Police Jury was negligent; and if so, was its negligence a cause in fact of plaintiffs’ injuries. Likewise, because the trial court did not address the question of strict liability, we must determine its applicability to the instant situation.

FACTS OF THE ACCIDENT

Margie McCoy Sikes (plaintiff together with her husband in suit No. 14,887) was the new delivery person for the Sunday edition of the Monroe Morning World newspaper for a rural portion of Franklin Parish, Louisiana. On November 12, 1978, she and her mother, Lula B. McCoy (plaintiff together with her husband in suit No. 14,-886), picked up her newspapers in Columbia (Caldwell Parish) where they resided at approximately 3:00 a.m. and traveled to Franklin Parish commencing delivery on her newly acquired route. Visibility was poor on this dark, foggy morning. Although Mrs. Sikes had accompanied the former delivery person on the route on two previous occasions when she had assisted by rolling newspapers, placing rubber bands around them and handing them to her predecessor, this was her initial attempt to drive the route herself. Mrs. Sikes drove her 1975 Vega, distributing the newspapers to the various houses on the route aided by her mother’s rolling the newspapers, placing rubber bands around them and handing them to her. Additionally, Mrs. McCoy operated a tape that had been recorded by the previous carrier that described houses where papers were to be delivered, proper placement of the papers and other general directions concerning the paper route.

At approximately 3:30 a.m., the women were driving south on an asphalt road known as the Ross Road, which is owned and maintained by the Franklin Parish Police Jury. Mrs. Sikes had delivered a paper, was traveling at a speed estimated between 15-25 mph, and was anticipating making a right turn as per the instructions on the tape. Approximately Vi of a mile south of the delivery, Ross Road abruptly terminates at a point where it forms a “T” intersection with another parish owned and maintained road running in an east/west direction. This road was referred to as the Ray Bryan Road and/or the White Oak Landing Road. South of the “T” intersection existed a 3-4 foot deep ditch, beyond which was an open field or pasture. At all material times, there existed no stop sign, warning sign or barricade to warn motorists traveling south on Ross Road of its termination at the “T” intersection. Although Mrs. Sikes was looking for the right turn, she saw no signs or warnings and was in the intersection before she realized it. She applied her brakes, skidded across the intersection into the ditch, wrecked her car and injured herself as well as her mother.

It is undisputed that the Ross Road and the intersection in question were under the jurisdiction of the Franklin Parish Police Jury.

NEGLIGENCE THEORY

La.R.S. 32:235 makes the police jury or parish authority responsible for placing and maintaining traffic control devices upon highways under its jurisdiction. Fontenot, et al. v. State, through the Dept. of Highways, et al., 346 So.2d 849 (La.App. 1st Cir. 1977).

Likewise, the responsible governing authority which has jurisdiction over the highway, road, street or thoroughfare has the legal duty to erect warning signs or barricades sufficient to warn motorists of any unusual obstructions, perilous condition or defect in the road face that would entail danger to the physical safety of those proceeding over such routes. Callahan v. Town of Bunkie, 287 So.2d 629 (La.App. 3rd Cir. 1973); Watts v. City of Baton Rouge, 248 So.2d 42 (La.App. 1st Cir. 1971), writ refused 259 La. 63, 249 So.2d 203 (1971). Failure of the governing authority to erect or properly maintain appropriate warning signs or barricades at a “T” intersection where the road terminates in a deep ditch has been held by our court to be a violation or breach of the duty to protect the traveling public from an unusually dangerous hazard. See Watts v. City of Baton Rouge, supra; McCallum v. State, Dept. of Highways, 246 So.2d 46 (La.App. 3rd Cir. 1971); LeJeune v. State, Dept. of Highways, 215 So.2d 150 (La.App. 3rd Cir. 1968), writ refused 217 So.2d 413 (La.1969). However, in order for this violation of duty to constitute negligence, it must be shown that the public agency had knowledge, actual or construc-five, of the danger and that it failed to correct the danger or warn motorists of the danger. Wall v. American Employers Ins. Co., 377 So.2d 369 (La.App. 2d Cir. 1979) affirmed at 386 So.2d 79 (La.1980); Harrison v. State of La., Dept. of Highways, 375 So.2d 169 (La.App. 2d Cir. 1979).

In the instant situation, we conclude that the unmarked “T” intersection constituted an unreasonable risk of harm or a dangerous hazard to the public and should have been appropriately signed or marked by the Franklin Parish Police Jury. In addressing the question of whether or not the police jury had actual or constructive knowledge of this defect or dangerous hazard, we note the trial court’s correct statement that the testimony regarding whether or not the intersection in question had ever been signed was conflicting. The lower court made no express finding regarding this issue; however, we conclude that there had been stop signs placed at this particular intersection controlling traffic traveling south on Ross Road prior to the accident although we can not determine from the evidence exactly when a sign was last in place.

The evidence does clearly show that the police jury was aware that this intersection existed. R. H. Allen, maintenance superintendent for the Franklin Parish Police Jury, was familiar with the intersection. He testified that the stop sign at the intersection controlling south bound traffic on Ross Road had been knocked down some four or five times in the past four years. While he had no knowledge of the existence or condition of the sign at the time of the accident, he felt there had been one in place around two weeks prior to the accident from his personal observations. Although not sure about the time frame, he testified it could not have been longer than three weeks before the accident when he observed the sign.

Allen further testified that the police jury had no regular inspection system for determining whether traffic control devices in its jurisdiction were in need of repair or replacement. Furthermore, he did not know whether or not the police jury had received any notice that the stop sign was down. Therefore, from the testimony we can only conclude that the stop sign in question could have been down for as long as two weeks.

Considering the hazardous nature of the “T” intersection, with its prior history of downed or missing signs, coupled with the police jury’s lack of a reliable inspection system for ascertaining whether traffic control devices within its jurisdiction were in need of repair or replacement, we conclude that the police jury is charged with constructive notice of the missing stop sign. See Willis v. Everett, 359 So.2d 1080 (La.App. 3rd Cir. 1978), writ refused 362 So.2d 800 (La.1978); Jones v. La. Dept. of Highways, 338 So.2d 338 (La.App. 3rd Cir. 1976).

However, even if the police jury had not been charged with this constructive notice of the downed sign, we would still conclude that they were in violation of their duty to adequately warn the motoring public because the placement of a stop sign alone at this intersection in our opinion was an inadequate marking or warning. See Wood v. State, Dept. of Highways, 295 So.2d 78 (La.App. 2d Cir. 1974), writ refused 295 So.2d 446 (La.1974); Lopitz v. Louisiana Dept. of Highways, 268 So.2d 269 (La.App. 4th Cir. 1972); McCallum v. State, Dept. of Highways, supra; LeJeune v. State, Dept. of Highways, supra. Ray Bryan, who had lived in close proximity to the intersection since 1953, testified there had been “quite a few accidents” at the intersection where motorists had run through the intersection into the ditch. Therefore, this hazardous location should have at least been properly identified with a “T Intersection Ahead” reflector sign, and perhaps even with some type of reflecting barricade or blinking red light.

We further conclude that the negligence of the police jury was the cause in fact of the harm sustained by plaintiffs. Mrs. Sikes testified she was looking for a stop sign or some indication where the road she was to turn right on was located. Her testimony was that had she had some indication that the road was ending or had she seen a stop sign she could have avoided the accident despite the dark, foggy conditions. The slow speed of the Sikes’ vehicle and the fact that Mrs. Sikes was looking for this very intersection bolsters our conclusion that even a stop sign (under these conditions) would have caught her attention to alert her to the intersection. It must also be presumed that had she seen the sign, she would have obeyed it. Willis v. Everett, supra. It is clear from the record that the conduct of the police jury, i.e. its failure to adequately mark and maintain the intersection, was a cause in fact of the accident in that its conduct was a substantial factor in bringing about the harm suffered by plaintiffs. The breach of this duty of reasonable and ordinary care to the motoring public resulted in the injuries sustained by plaintiffs. See Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Robertson, “Dialogues on Hill v. Lundin,” 34 La.L.Rev. 1 (1973).

Therefore, plaintiffs are entitled to recover for their injuries caused by defendant’s negligence unless their claims are barred under some applicable legal principle. The trial court found that both plaintiffs were contributorily negligent because there was a “failure of both Mrs. McCoy and Mrs. Sikes to keep a proper lookout.” We disagree.

CONTRIBUTORY NEGLIGENCE OF DRIVER, MARGIE SIKES

As noted prior, this was Mrs. Sikes’ first attempt to operate a vehicle on the road in question. Admittedly, she had been a passenger on two previous occasions, but we further recognize that she was engaged in activities other than simply watching the road on those occasions. She was obviously not thoroughly familiar with the paper route; otherwise, there would have been no need for the taped instructions. While testifying that she knew she had to make a right turn because of the directions on the tape, she also stated that she did not know exactly where to turn. She further acknowledged that she knew the road was going to end but that she did not know exactly where. She was proceeding south on Ross Road with her eyes on the road ahead at a speed of 15-25 mph on a dark, foggy night looking for some sign or indication of where to turn right.

In Dupas v. City of New Orleans, 354 So.2d 1311, 1313 (La.1978), the court said:

As we summarized in Smolinski v. Taulli, 276 So.2d 286, 290 (La.1973) (citations omitted):
“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances. The party relying upon contributory negligence has the burden of proving it.
“Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence .... [The victim] is required only to use reasonable precautions, and [his] conduct in this regard is not negligent if, by a common-sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances.”

See also Curry v. Iberville Parish Sheriff's Office, 405 So.2d 1387 (La.App. 1st Cir. 1981), writ denied 410 So.2d 1130, 410 So.2d 1135 (La.1982).

In LeJeune v. State, Dept. of Highways, supra, the court stated:

Motorists are not required to anticipate that a roadway on which they are traveling will suddenly end in an unmarked ditch or body of water, (citation omitted) 215 So.2d at 153.

In Watts v. City of Baton Rouge, supra, plaintiff Watts was proceeding easterly on Byron Street at a speed estimated between 25-30 mph on a misty, foggy night. Watts had never previously traveled on Byron Street but he knew it terminated at a dead end when it reached McClelland Drive (a street which he had traveled on an average of once weekly for the previous ÍV2 to 5 years), although he did not know exactly where the termination point was. About sixty feet from the intersection, he realized its existence, applied his brakes, was unable to stop and ran into a five to six foot ditch on the east side of McClelland Drive. There were admittedly no signs, markers, lights, controls or barricades on Byron Street warning the motoring public of the impending interruption of the street on which plaintiff and his family were proceeding. The parish was found to be negligent in failing to provide adequate warning devices at this “T” intersection. The defense’s contention that Watts was contribu-torily negligent was rejected by the court:

Where a litigant relies on contributory negligence of another party in defeating recovery, the burden of proving the facts necessary to apply this special defense rests with him who urges same. See Deshotels v. Southern Farm Bureau Cas. Ins. Co., 245 La. 23, 156 So.2d 465 (1963). As stated in. LeJeune, motorists are not required to anticipate that a roadway on which they are traveling will suddenly end in an unmarked ditch or body of water.
The evidence here does not reflect acts of commission or omission in Watts’ operation of his Ford automobile at the time the accident occurred. He was not driving at an excessive rate of speed considering the flow of traffic, the fog and mistiness with which he was confronted or the damp surface of Byron. As a matter of fact the evidence shows that he was maintaining a proper look-out and was travelling cautiously. This evidence has not been refuted.

In Callahan v. Town of Bunkie, supra, the decedent left the family home to purchase hamburgers for supper. On returning home, she evidently turned down the wrong street by mistake and drove in the direction of her home. She failed to observe a dead-end sign one block prior to where the street terminated in a ditch some three to six feet deep. She drove into the ditch and subsequently died as a result of her injuries. The court found the city of Bunkie to be negligent in its failure to erect a suitable warning to alert the public to the danger impending at the termination of the street. Likewise, the court rejected the city’s contention that the driver was contributorily negligent for the same reasons as stated in LeJeune, supra. See also Falgout v. Falgout, 251 So.2d 424 (La.App. 1st Cir. 1971); Pierrotti v. Louisiana Dept. of Highways, 146 So.2d 455 (La.App. 3rd Cir. 1962).

In Granger v. Travelers Ins. Co., 167 So.2d 211 (La.App. 3rd Cir. 1964, writ refused 246 La. 883, 168 So.2d 268 (1964), the plaintiff was injured as a result of a defect in a highway under construction. The defect was a hump or ramp over a culvert laid across the highway which was 2V2 to 3 feet higher than the surface of the road. Plaintiff driver had passed over the hump several hours earlier that same day and twice the day before, but all of these trips had been in the daylight hours. The accident in question occurred at night, and plaintiff was traveling 25-35 mph. The insurer of the road contractor was found to be negligent in not providing adequate warning to oncoming motorists. However, plaintiff was found not to have been contributorily negligent:

As to the defendant’s contention of contributory negligence, a night motorist is not held to a duty to anticipate that there will be left unmarked and unwarned such a defect on the highway. See Pierrotti and other cases cited above. As stated in rejecting a similar defense in a highway defect accident, “Our courts have repeatedly held a motorist has no legal duty to anticipate an unusual hazard where there is no adequate warning, but has the right to presume the highway is safe for usual and ordinary traffic, even at night.” Smith v. State, above cited, at 87 So.2d 383.
The rule that a motorist should drive at no greater rate of speed than that within which he can stop within the range of his vision is subject to numerous exceptions. Eubanks v. Wilson, La.App. 3 Cir., 162 So.2d 842. As stated, a night motorist is also ordinarily entitled to assume that the roadway ahead is safe for travel, and he is not charged with the duty of guarding against negligent obstruction to travel, which he had no reason to anticipate. Suire v. Winters, 233 La. 585, 97 So.2d 404; Snodgrass v. Centanni, 229 La. 915, 87 So.2d 127; Vowell v. Manufacturers Casualty Ins. Co., 229 La. 798, 86 So.2d 909; Dodge v. Bituminous Casualty Co., 214 La. 1031, 39 So.2d 720; Fontenot v. Lafleur, La.App. 3 Cir., 124 So.2d 607, certiorari denied, and cases cited therein.
Insofar as able counsel for the defendant contends that the plaintiff driver should have anticipated the hazard because she had passed over the hump several hours earlier going to town (and twice the day before), it is sufficient to note that these prior trips had been during daylight hours. The motorist was not required to anticipate that at night the hazard would be left unwarned by flares or otherwise, nor was she required to have so memorized the location of each of the three highway defects on her previous passage so as to be held accountable for failing to anticipate on her return trip the exact location of the hump situated in the night ahead, and that such defect would be left without adequate warning to night motorists of the hazard created by it. Carlisle v. Parish of East Baton Rouge, above cited, [La.App.] at 114 So.2d [62] 66, Cf. also, Dufore v. Daugereaux, La.App. 1 Cir., 122 So.2d 666, 672 (syllabus 8). 167 So.2d 213, 214.

In the instant case, Mrs. Sikes was unfamiliar with the road as a driver; she knew she had to make a turn but not exactly where. She was driving at a slow rate of speed at night closely observing the road ahead. We find that she had no duty to anticipate that the “T” intersection that terminated in a ditch would be unmarked and devoid of any warning whatsoever. As a night time motorist, she was entitled to assume that the roadway ahead was safe for travel and was not charged with the duty of guarding against the unmarked, defective intersection. Her conduct was in accord with that of a reasonably prudent person faced with similar conditions and circumstances. The trial court was clearly wrong in holding otherwise.

CONTRIBUTORY NEGLIGENCE OF LULA MCCOY, GUEST PASSENGER

Additionally the trial court found the passenger in the Sikes vehicle to be contributorily negligent. We find that the lower court erred in its application of the law to the guest passenger and thus arrived at a clearly wrong result in this regard.

White v. State Farm Mut. Auto. Ins. Co., 222 La. 994, 64 So.2d 245 (1953), sets forth the often quoted rule regarding contributory negligence of a guest passenger:

Contributory negligence is, as the phrase signifies, negligence which contributes to the accident, that is, negligence having causal connection with it and but for which the accident would not have occurred. Insofar as the rights of a guest in an automobile are concerned, it is settled that, in actions against third persons, the negligence of the host driver does not bar recovery because his negligence cannot be imputed to the guest. Lawrason v. Richard, 172 La. 696, 135 So. 29; Lorance v. Smith, 173 La. 883, 138 So. 871. (Footnote omitted.) However, a guest may be denied recovery on the ground of contributory negligence in instances where he is guilty on his own part of independent negligence of such a nature, that, but for which, his injuries would not have been sustained. Lorance v. Smith, supra; Churchill v. Texas & Pac. Ry. Co., 151 La. 726, 92 So. 314; Delaune v. Breaux, 174 La. 43, 139 So. 753; Squyres v. Baldwin, 191 La. 249, 185 So. 14. But in determining whether the asserted fault of a guest has been a contributing factor in bringing about his injuries, it is first necessary to ascertain what duties are imposed upon him as pertain to the operation of the vehicle and the safety of the journey. It is firmly established by the above cited authorities of this Court and others of the Courts of Appeal of this State, too numerous to mention, that a guest is under no duty to supervise the driving of the vehicle and he is not obliged to look out for sudden or unexpected dangers that may arise. Albeit, he has the right to place reliance upon the driver to discharge that obligation and, as aptly expressed by the Court of Appeal, Second Circuit, in Singley v. Thomas, 49 So.2d 465, 469, “ * * * is not required to monitor the operation or to pay attention to the road and other traffic conditions” in the absence of a showing that he has actual or constructive knowledge that the driver is incompetent or unfit to operate the vehicle.
On the other hand, the jurisprudence has imposed upon the guest an obligation to avoid an accident or injury to himself under certain conditions. That duty has been tersely said by this Court, in De-laune v. Breaux, supra, to exist in cases where the guest * * * is aware of the fact that there is danger ahead, which apparently is unknown to the driver or may be unknown to him, or where a sudden or unexpected danger arises to the knowledge of the guest, apparently not observed by the driver * * 174 La. at page 47, 139 So. at page 755. In such situations, it is incumbent on the guest to warn the driver of the danger and, if he fails to do so at a time when the driver is able to avert it, his dereliction may be said to be a contributing cause of any injury he may sustain. 64 So.2d 249, 250.

We have held in Wood v. State, Dept. of Highways, supra, that a guest passenger who had no control over the route taken and no control over the operation of the vehicle was not contributorily negligent and that even if the driver were negligent (which is not the case here), his negligence is not imputed to a guest passenger.

Applying the foregoing well established rules of law to the instant case, we find that Mrs. McCoy was not contributorily negligent. She was riding in the Sikes vehicle assisting with tasks connected with the paper route and working the tape recorder. The recorder did not tell her exactly where to turn or that the road ended. She had never been on this road before and observed no warning sign. She had no control over the route taken and no control over the operation of the vehicle. She certainly had no duty to look out for sudden and unexpected dangers such as the unmarked intersection. Because there is no evidence that the driver was incompetent or unfit to operate the vehicle, she was under no obligation to monitor the operation of the vehicle. The evidence clearly does not establish that Mrs. McCoy was contributorily negligent.

While we are cognizant of the principle that factual findings of the trial judge will not be disturbed in the absence of evidence of manifest error, we are not required by the manifest error principle to affirm a trier of fact’s refusal to accept as credible, uncontradicted testimony or greatly preponderant objectively corroborated testimony where the record indicates that there was no sound reason for the rejection and where the finding was reached by overlooking applicable legal principles. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1979); and West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979).

Accordingly, for the foregoing reasons, we hold that the negligence of the Franklin Parish Police Jury was the legal cause in fact of the accident made the subject of these suits and plaintiffs, Margie Sikes and Lula B. McCoy, were neither negligent nor contributorily negligent.

STRICT LIABILITY

On appeal, plaintiffs argue that the police jury should be held strictly liable for the defective “T” intersection under La.Civil Code Art. 2317. Applying our rationale in Garrison v. State, through Dept. of Highways, 401 So.2d 528 (La.App. 2d Cir. 1981), to the instant case, we find that the “T” intersection was in the care and custody of the defendant police jury. The intersection was defective because it was not properly and adequately marked. This unmarked intersection caused an unreasonable risk of injury to the motoring public traveling south on Ross Road who entered the “T” intersection in the sense that it constituted a hazardous trap. The injuries sustained by plaintiffs were caused by the defective thing in the care and custody of the defendant. Under this theory, it is unnecessary to determine whether or not the police jury had actual or constructive notice of the downed sign. For the reasons given earlier in this opinion, the police jury failed to prove that the accident was caused by the fault of the victims, by the fault of a third person, or by an irresistible force. Therefore, the Franklin Parish Police Jury is additionally strictly liable for the accident and resulting injuries.

DAMAGES

Having concluded that plaintiffs are entitled to recover from defendant, we consider the issue of damages. Pursuant to La.Code of Civil Procedure Art. 2164, Courts of Appeal are empowered to award damages in cases where the trial court initially rejects the plaintiffs’ demands and the record is complete with regard to damages. Sheppard v. Travelers Ins. Co., 333 So.2d 342 (La.App. 3rd Cir. 1976).

Mrs. Sikes testified that when the vehicle went into the ditch her head struck the windshield, her chest struck the steering wheel and bundles of papers struck her back. After the accident, her head, shoulders, and chest were hurting. She further testified she had headaches, hurting in her shoulders and neck for several months thereafter and at the time of trial, she still had occasional problems with her shoulders and her neck. However, the only medical treatment that Mrs. Sikes sought was from Dr. Baer I. Rambach, whom she saw on two occasions only (April 26, 1979 and September 14, 1979). Dr. Rambach diagnosed Mrs. Sikes’ injuries as muscle and ligamentous strains to the upper dorsal region of the spine, prescribed a pain reliever for her headaches, and was of the opinion that she would suffer no permanent residual disability. No hospitalization was required. She complained of difficulty with her housework after the accident but continued to operate the paper route. At time of trial, she had been working at LaSavilla Fashions since May, 1980.

Accordingly, we find that $4000 will adequately compensate Mrs. Sikes for her pain and suffering.

Special damages are awarded to plaintiff Duane Sikes as follows:

Orthopedic Associates (Dr. Rambach) $ 135.00
Gartman Motor Co. (damage to 1975 Vega) 1694.33
TOTAL $1829.33

Mrs. McCoy also struck the windshield of the car upon impact and received contusions to the forehead. The evidence indicates she was dazed after the accident and taken home by her son and husband. The next day Mrs. Sikes took her to see Dr. H. H. Winters in Columbia, Louisiana. Her complaints to Dr. Winters consisted of a bruised hand, as well as pain in the neck and lower back. Mrs. McCoy testified that she had severe headaches or fainting spells on occasion. She further testified that her ability to do household chores was impaired and that she was still having problems with her arm and back. However, Mrs. McCoy only saw Dr. Winters on two subsequent occasions (November 24, 1978) with complaints related to her neck and back and (February 20, 1979) with complaints related to pain in her lower back. She also consulted Dr. Rambach who examined her on November 26, 1979 and arrived at the conclusion that she had sustained a muscle and ligamentous strain of her cervical, dorsal, and lumbar spine which possibly aggravated a pre-existing degenerative arthritic condition. He prescribed only mild analgesics such as aspirin or bufferin.

Accordingly, we find that $6000 will adequately compensate Mrs. McCoy for her pain and suffering.

Special damages are awarded to plaintiff Oscar McCoy as follows:

Dr. H. H. Winters $ 25.00
Orthopedic Associates (Dr. Rambach) 210.00
TOTAL $235.00

For the foregoing reasons, the judgment of the lower court is reversed in its entirety in both of these suits. Accordingly, judgment is rendered in suit No. 14,886 against defendant, Franklin Parish Police Jury, and in favor of plaintiff, Mrs. Lula Evans McCoy in the amount of $6000; and in favor of plaintiff, Oscar McCoy, in the amount of $235.00. These awards are to bear legal interest from date of judicial demand until paid. Defendant, Franklin Parish Police Jury, is cast for all costs in the lower court in the amount of $474.48 and for costs of this appeal in the amount of $25.00.

Judgment is rendered in suit No. 14,887 against defendant, Franklin Parish Police Jury, and in favor of plaintiff, Margie McCoy Sikes in the amount of $4000; and in favor of plaintiff, Duane Ray Sikes, in the amount of $1829.53. These awards are to bear legal interest from date of judicial demand until paid. Defendant, Franklin Parish Police Jury, is cast for all costs in the lower court in the amount of $136.00 and for costs of this appeal in the amount of $25.00.

JUDGMENT REVERSED and RENDERED.

      . It appears that this contention was not argued by plaintiffs to the trial court.

      . Witness Ray Bryan, a retired school teacher and principal, testified that he had lived on Ross Road since 1953 and could not recall a stop sign ever being at the intersection in question. His son, Ray Bryan, Jr., testified “although he could not swear there was one” it was his opinion that the stop sign had been present prior to the accident. R. H. Allen, maintenance supervisor for the police jury, testified there had been stop signs at the intersection controlling traffic heading south on Ross Road prior to the accident but that they frequently got knocked down. He had put up stop signs 4 or 5 times within the past four years.

      . Duane Sikes further testified that when he approached the intersection looking for his wife’s vehicle, he had difficulty negotiating the intersection but saw the reflection of the wrecked car’s tail lights and stopped his vehicle in time to avoid the ditch.

      . Plaintiff produced no evidence concerning loss of earnings, past or future, loss of earning capacity or future medical expenses.

      . We note exhibits P-32 and P-33 which purport to be a report and bill from Dr. Larry E. Blackmon, Jr., optometrist, concerning a visit Mrs. McCoy made to him on November 1, 1979, complaining of broken glasses. Plaintiff offered no testimony to connect this evidence with the accident in question. Likewise, there was no evidence produced concerning future medical expenses, loss of earnings, loss of future earning capacity, etc.


source: Caselaw Access Project

author: NORRIS, Judge. HALL, Judge,

license: Public Domain

text:
    Jeannine Elizabeth Tobin HAMITER, Plaintiff-Appellee, v. James Jewell HAMITER, Defendant-Appellant. James Jewell HAMITER, Plaintiff-Appellant, v. Jeannine Elizabeth Tobin HAMITER, Defendant-Appellee.
    Nos. 14938, 14939.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    James E. Franklin, Jr., Shreveport, for plaintiff/defendant-appellee.
    Hargrove, Guyton, Ramey & Barlow by Billy R. Pesnell, and Joseph L. Shea, Jr., Shreveport, for defendant/plaintiff-appellant.
    Before HALL, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

Appellee, Jeannine Elizabeth Tobin Ham-iter, has moved to dismiss this appeal in two consolidated cases on the grounds that the appeal was not timely taken.

This suit for divorce was tried on September 25,1981, September 29,1981, October 1, 1981, and October 7, 1981. In oral reasons for judgment given on October 7, 1981, immediately after the termination of argument, the court granted a divorce between the parties and made certain awards relative to alimony pendente lite and permanent alimony, and issued a permanent injunction relating to the community property. Thereafter, a judgment was signed on November 10, 1981, but was not filed until November 17, 1981. The record does not reflect that a motion for new trial was filed in this matter. It is also devoid of any notice of judgment to counsel for either party.

On December 22, 1981, appellant filed a motion for a devolutive appeal relative to those portions of the judgment regarding alimony pendente lite, permanent alimony, the injunctive relief granted, and the court costs, which was granted on the same date by the trial court.

Appellee asserts in her motion to dismiss the appeal that some forty-two days elapsed from the date of the signing of the judgment to the signing of the order of appeal thereby making this appeal untimely. Looking solely at the face of the record and applying the provisions of Louisiana Code of Civil Procedure Articles 1974, 3942, and 3943, it would appear that appellee’s position might have merit. However, a closer examination of the record, particularly the actual judgment signed on November 10, 1981; the oral reasons for judgment; and Exhibit “P-30,” an interim agreement referred to by the trial court, leads us to conclude that the trial court took this matter under “advisement” thereby making applicable the requirement of La.Code of Civil Procedure Article 1913 that notice of judgment be sent when a case has been taken under advisement. Because the record does not reflect that the notice which is required under these circumstances was sent, the appeal delays had not begun to run prior to the granting of the order of appeal. Therefore, we conclude the appeal is timely.

The oral reasons for judgment were given immediately after the termination of the argument. In pertinent part, they provided as follows:

... As to the amount of alimony penden-te lite, the Court feels it should be awarded, we find should be $2200 per month and we so award.
... that he should maintain as permanent alimony the sum of $1700 per month. However, if Mrs. Hamiter is to remain in the dwelling, he should receive credit of $650 per month accordingly.
He will receive credit for the amount of support that’s been provided pursuant to the interim agreement. The injunction will continue in effect. The alimony pendente lite is from date of judicial demand. (emphasis added.)

Comparing the oral reasons for judgment with the written judgment ultimately signed by the trial court, it is obvious that there are discrepancies between the two in several areas.

In particular, that portion of the written judgment regarding alimony pendente lite refers to the payment of car insurance on the cars used by appellee and her daughter and two-thirds of the sum paid on the hospitalization policy, which is not mentioned in these specific terms in the interim agreement referred to by the trial court in its reasons, and provides as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of JEANNINE ELIZABETH TOBIN HAMITER and against JAMES JEWELL HAMITER, ordering and condemning JAMES JEWELL HAMITER to pay to JEANNINE ELIZABETH TOBIN HAMITER the sum of TWO THOUSAND TWO HUNDRED AND NO/lOO ($2,200.00) DOLLARS per month as alimony pendente lite, to commence from date of judicial demand, on April 2, 1980; provided, however, that JAMES JEWELL HAMITER shall receive credit for sums paid to JEANNINE ELIZABETH TOBIN HAMITER since the filing of these suits and for sums paid on her behalf for the house note, house insurance, taxes on house, car insurance on cars used by JEANNINE ELIZABETH TOBIN HAMITER and her daughter, and % of the sum paid on the hospitalization insurance policy.

Additionally, the following portion of the written judgment pertaining to the payment of permanent alimony provides for the method and time of payment of this alimony and specifies the credit which appellant is to receive should appellee continue to reside in the family home. These issues are also not specifically addressed by the trial court in its oral reasons for judgment. The written judgment provides:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of JEANNINE ELIZABETH TOBIN HAMITER and against JAMES JEWELL HAMITER, granting and awarding unto JEANNINE ELIZABETH TOBIN HAMITER alimony after divorce in the amount of ONE THOUSAND SEVEN HUNDRED AND NO/100 ($1,700.00) DOLLARS per month, said sum to commence on the 15th day of October, 1981, and to be payable as follows: Payable in one lump sum on October 15, 1981, and a like amount on the 15th day of each following and successive month thereafter provided, however, that should JEANNINE ELIZABETH TOBIN HAMITER occupy the dwelling located at 659 Slattery Boulevard, Shreveport, Louisiana that JAMES JEWELL HAMITER shall receive a credit against the $1,700.00 per month in the amount of SIX HUNDRED FIFTY AND NO/100 ($650.00) DOLLARS per month, said credit to be received only in the event that JAMES JEWELL HAMITER continues paying the insurance, house note and taxes for said residence.

Finally, the written judgment provides that appellant pay all costs of this proceeding. Costs are not mentioned in the oral reasons for judgment.

Therefore, under these circumstances we can only conclude that the trial court took this matter under advisement prior to his signing the judgment in that he took additional time to consider all of his ruling at some point subsequent to the rendering of his oral reasons for judgment and prior to the signing of the judgment on November 10, 1981. See Margan v. Precision Motors, Inc., 317 So.2d 664 (La.App. 4th Cir. 1975); Green v. Taca International Airlines, 284 So.2d 339 (La.App. 4th Cir. 1973), reversed on other grounds, 304 So.2d 357 (La.1974); Campton v. Crown Zellerbach Corp., 246 So.2d 397 (La.App. 1st Cir. 1971). Therefore, La.Code of Civil Procedure Article 1913 mandates that notice of the signing of the judgment be mailed by the clerk of court to counsel of record for each party. In the absence of such notice, neither the delay for applying for a new trial nor the time for taking the appeal begins to run. Applying this law to the instant case, we conclude that the time for taking the appeal had not begun to run on December 22,1981, when the appeal was taken. Therefore, the appeal being timely taken, we deny the motion to dismiss.

Appellant additionally asserts by way of argument that the ruling of this court in Haskins Trucking, Inc. v. United States Fidelity and Guaranty Co., 406 So.2d 686 (La. App. 2d Cir. 1981) is incorrect and that the delays for applying for a new trial and for appellate purposes should not commence until the judgment is filed. Because of our conclusion that the appeal delays in this case had not commenced to run, we preter-mit any discussion of this issue as unnecessary to the resolution of this case.

Accordingly, the motion to dismiss is denied.

HALL, J., concurs and assigns written reasons.

HALL, Judge,

concurring.

I agree with the majority opinion that the timeliness of this appeal can be sustained for the reason that the case was taken under advisement, notice of judgment was required, and the delay for appealing had not commenced to run when the appeal was taken because notice of judgment had not been given.

In my opinion, the timeliness of the appeal can also be sustained for the reason that the delay for applying for a new trial did not commence to run until the judgment was filed in the record of the suit, and the appeal was taken within 30 days after the expiration of the new trial delay. LSA-C.C.P. Arts. 3942, 3943, 2087, and 1974. We should overrule the decision of a panel of this court in Haskins Trucking, Inc. v. United States Fidelity and Guaranty Co., 406 So.2d 686 (La.App. 2d Cir. 1981) which' held, following the strict letter of LSA-C. C.P. Art. 1974, that the delay for applying for a new trial commences to run from the date of signing of the judgment even if it is not filed in the record until later.

The Haskins decision is erroneous and patently unfair and prejudicial to the litigant against whom a judgment is rendered. The holding runs counter to the strong policies favoring appeals and according liberal construction to procedural laws so as to prevent injustice and allow litigants their day in court. See Nomey v. State, Department of Highways, 325 So.2d 732 (La.App. 2d Cir. 1976); LSA-C.C.P. Art. 5051. Under Haskins the delays for moving for a new trial and taking an appeal are allowed to commence from the date a judgment is signed even though the judgment is not filed in the record and may be laying on the judge’s or his secretary’s desk or may be in opposing counsel’s briefcase, leaving the appellant totally unaware that it has been signed.

The problem arises from the amendment to Article 1911 of the Code of Civil Procedure allowing judgments to be signed in chambers. Prior to the amendment, when judgments had to be signed in open court, there was no problem because the signing of the judgment was done in open court, was immediately reflected in the minutes of the court, and the signed judgment was immediately filed with the clerk. Now, since judgments can be signed by the judge in chambers there can be, and was in this case and in the Haskins case, a substantial delay between the date of signing and the date the judgment is filed with the clerk and becomes a part of the record in the suit.

It seems entirely contrary to every precept of procedural law to allow a critical delay to begin running from the date something is done outside of court and outside of the record in the case. The holding in this case should be that the delay for applying for a new trial begins to run from the signing of the judgment, but no earlier than the date the judgment is filed.

There are some analogous situations in the jurisprudence. It has been held that for purposes of considering whether a suit has been abandoned for failure to prosecute, any step in the prosecution of the case must be a formal action in court and must appear in the record of the proceedings. See Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975). Code of Civil Procedure Article 253 requires that all pleadings or documents to be filed in an action pending in a court shall be delivered to the clerk of the court for such purpose. Many cases hold that a pleading or document, which would include a judgment, is not filed until it is delivered to the clerk. There are cases that hold that delivery of a pleading to a judge does not amount to a filing with the clerk. See Johnson v. State Farm Mutual Automobile Insurance Co., 241 So.2d 799 (La.App. 3d Cir. 1970).

Block v. Fitts, 259 La. 555, 250 So.2d 738 (1971) is precisely analogous to the instant case. The issue there was whether a motion for a jury trial was timely filed. The Code provides that a demand for a trial by jury must be filed not later than 10 days after the service of the last pleading. The Code also provides that service may be mailed and that service is complete upon mailing. In that case the last pleading was served, that is, mailed, on September 4. The pleading was filed with the clerk on September 8. The motion for a jury trial was filed more than 10 days after September 4 and less than 10 days after September 8. Under the precise language of the Code the motion was not timely because the delay had run. The moving party contended that the document mailed was not a pleading and became one only after it was filed. Hence, it was argued that the 10-day delay did not begin to run until the official filing on September 8.

The Supreme Court held that the mover’s contention was well founded. The court held:

“... The document mailed in the present case became an official pleading only when it was actually filed with the Clerk of Court. See LSA-C.C.P. Art. 253
“We hold that when service of the last pleading is by mail and the document is mailed before it is filed with the Clerk of Court, the delay for demanding a jury trial begins to run no earlier than the date of filing. Hence, the demand for a jury trial in the present case was timely.”

The delay for applying for a new trial should begin to run no earlier than the date the judgment is filed. Until it is filed it has no existence as a document or pleading in the case. Could the appellant apply for a new trial or take an appeal before the judgment is filed? Surely not. Appeals are routinely dismissed as premature where there is no signed judgment filed in the record. See Robinson v. Sisters of Charity of the Incarnate Word, 270 So.2d 608 (La.App. 2d Cir. 1972); Dillon v. State, 322 So.2d 351 (La.App. 2d Cir. 1975); McElwee v. McElwee, 244 So.2d 36 (La.App. 2d Cir. 1971). Doesn’t it follow that the delay for applying for a new trial or taking an appeal should not commence until the judgment is filed?

It is no answer to say that the legislature created a hiatus in the law by amending the Code to allow judgments to be signed in chambers and that we must follow the strict letter of the Code. Ordinarily when we find such a hiatus which may result in prejudice to a party, particularly on a procedural rule, we simply give the statute a reasonable interpretation that makes sense and protects the parties.

Neither is it an answer to say that the appellant could have protected himself by requesting notice of judgment. The notice of judgment provisions are designed as an optional method for counsel to determine when a judgment has been signed and filed but are not designed to change basic procedural law that a document in a judicial proceeding must be filed in order to have effect.

A lawyer for a party to a lawsuit ought to be able to look at the official record of the court, that is, the record or the minutes, and determine the status of the suit. The party’s rights should not be affected by anything dehors the record.

I would take this opportunity to judicially overrule Haskins, but since the majority prefers to sustain the appeal on other grounds, I take this opportunity to point out the problem created by Haskins with the hope that the legislature will, as suggested in Haskins, amend Article 1974 to provide that the delay for applying for a new trial, and consequently, for taking an appeal, shall commence from the date a judgment is signed and filed.

      . La.Code of Civil Procedure Article 1974 provides:
      The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
      When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.
      La.Code of Civil Procedure Article 3942 provides:
      An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(l)-(3).
      Such an appeal shall suspend the execution of the judgment in so far as the judgment relates to the annulment, separation, or divorce.
      La.Code of Civil Procedure Article 3943 provides:
      An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.

      . La.Code of Civil Procedure Article 1913 provides:
      Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions, or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service.
      Except as otherwise provided by Article 3307, when a case has been taken under advisement by the court, notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.
      If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
      The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.
      Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.

      .The interim agreement referred to by the trial court and filed in evidence as “P-30” reads as follows:
      I hereby agree to pay unto you the sum of $250.00 per week, said sum to be paid on Friday of each week, beginning Friday, April 18, 1980. I further agree to pay the mortgage note, the homeowner’s insurance premiums, and the ad valorem taxes on the house at 659 Slattery Boulevard, and to maintain you under the present hospitalization and major medical insurance policy covering you. It is understood and agreed that payment under this letter agreement shall be made only until such time as alimony pendente lite or permanent alimony is set by the court.
      The terms of this agreement shall not be revealed to the court; however, in the event that a judgment of alimony pendente lite is made retroactive from the date of judgment, I will be given credit for any and all monies paid to you subsequent to the effective date of the alimony pendente lite judgment, including but not limited to, any cash payments made to you, and any payments made on your behalf such as the mortgage note, insurance premiums, ad valorem taxes and the like.


author: CHEHARDY, Judge.

text:
    O. J. RIVERO TOWING COMPANY v. COASTAL FLEX COMPANY, INC., and Continental Underwriters, Ltd.
    No. 5-14.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Ralph L. Barnett, George P. Vedros, Gretna, for O. J. Rivero Towing Co., plaintiff-appellee.
    Liskow & Lewis, S. Gene Fendler, New Orleans, for Coastal Flex Co., Inc., defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, O. J. Rivero Towing Company, brought this suit for damages against Coastal Flex Company, Inc., caused by defective exhaust equipment sold to plaintiff by that defendant. Coastal Flex answered in the form of a general denial and reconvened for the cost of materials ordered but not paid for by plaintiff.

Following trial, judgment was rendered in favor of plaintiff in the sum of $62,-457.55. Coastal Flex has suspensively appealed.

FACTS

On or about April 17, 1979 the exhaust system of plaintiff’s tow boat, the M/V DOMINGO A. RIVERO, was found to have an exhaust leakage problem. Offrie Rive-ro, the chief executive officer of plaintiff company, called upon David Legnon, the shop foreman of Coastal Flex, to remedy the situation. Legnon went to the vessel, examined the exhaust system and made measurements.

The temperature to which the system was exposed was an important consideration. Rivero informed Legnon the temperature recommended to run the engine did not exceed 800 degrees, although the engines were usually operated at 750 to 760 degrees. Rivero wanted something that would withstand a somewhat higher temperature.

Plaintiff’s employees dismantled the exhaust manifolds, which were then delivered to Coastal Flex for the agreed-upon repairs. When the work was completed it was returned to plaintiff and installed by plaintiff’s employees with some difficulty. The tow boat was then put back in service under a charter agreement with Barge Management, Inc. It operated successfully for about two days when it was noted that there was a leak in the exhaust system. Rivero was informed and instructed the captain to use his own judgment. The vessel, with two barges in tow, continued its journey for about 18 hours, when it was finally stopped due to the leakage which had gotten progressively worse. Barge Management was notified and sent another vessel to pick up its barges.

Rivero meanwhile contacted Legnon and ordered materials which would withstand higher temperatures. When these were delivered Rivero returned all but one which he kept to compare with the original order. Coastal Flex has not been paid for either the first or the second order.

The vessel proceeded under its own power with the leakage unrepaired to Avondale Shipyards, where the exhaust system was dismantled, repaired and reassembled at a cost of $16,593.00.

Plaintiff then instituted this suit for itemized damages totaling $93,761.96. The trial court award was itemized as follows:

1. Loss of vessel for 21 days at $1,800.00 a day $37,800.00
2. Fuel and oil for five days from April 26,1979 through April 30,1979 at $800.00 a day 4,000.00
3. Repairs by Karl Senner, Inc. 2,367.00
4. Repairs by Bourne Electrical 956.65
5. Repairs by Marine Engineering, Inc. 740.90
6. Repairs by Avondale Shipyards 16.593.00
Total damages awarded $62,457.55

SPECIFICATION OF ERRORS

Appellant claims the trial court erred in:

1. failing to find that actions of the appellee were the cause of failure of the flexible hoses supplied by appellant;

2. awarding the cost of repairs by Avondale Shipyards to appellee;

3. awarding loss of use, or downtime, and alternatively, the award was excessive;

4. awarding damages for alleged losses for fuel and oil, and alternatively, the award was excessive;

5. awarding damages for costs of repairs of three subcontractors; and

6. denying appellant the cost of its outstanding invoices against appellee, plus reasonable attorney’s fees.,

Relative to appellant’s first contention, it is its position that appellee was responsible for the resultant damages because the material supplied was made to specifications set by Rivero, and not based on recommendations of Legnon, and further, the product failed due to improper installation by plaintiff’s employees and was not due to improper measurements made by Legnon.

The trial court, in its reasons for judgment, concluded Legnon’s recommendations and measurements were relied upon by plaintiff, that the couplings provided were not sufficient to serve the purpose for which they were ordered, and that inaccurate measurement was the cause of the improper fitting. Additionally, the court found plaintiff’s installation of the couplings in no way contributed to the failure.

Appellant claims these findings are inaccurate. For answer to these questions we turn first to the testimony of O. J. Rivero and David Legnon.

According to Rivero’s testimony he did not specify the type of material to be used, or how the couplings or flexes should be manufactured or fabricated, requiring only that it be able to withstand temperatures somewhat higher than 800 degrees. After Legnon visited the vessel, examined the exhaust system and made measurements, the order was placed with defendant. Plaintiff’s employees dismantled the exhaust system and delivered it to defendant. The cutting of the manifolds and fitting the couplings was done by defendant. After the work was completed it was returned by defendant to the vessel and installed by plaintiff’s employees. There was some difficulty in the installation because several of the couplings were out of alignment one-quarter to one-half inch, but they were bent to fit. The next day Rivero discussed the problem with Legnon, who told him not to worry they were made to bend. Legnon was not asked to help with the installation, or to inspect it, nor did he offer to do so. After the work was completed the vessel was put back in operation. After two or three days, leakage was discovered at the couplings and the boat was forced to tie up for several days after which it was taken to Avondale for repairs.

Legnon testified after examining the exhaust system and discussing the requirements with Rivero he recommended the use of 321 stainless steel which will withstand temperature of 1200 degrees. Following receipt of plaintiff’s order he called the vendor and advised him the couplings and flexes were for use with a Brons engine, gave him the dimensions and flanges needed, and ordered them made according to specifications given to him by Rivero (i.e. ability to withstand temperatures somewhat in excess of 800 degrees). They were manufactured to withstand temperatures of 1200 degrees. His company was not equipped to provide installation nor to inspect the completed installation although Rivero phoned him the next day to say they had a slight problem in the installation which had been resolved.

After defendant was advised of the leakage problem plaintiff ordered additional couplings of a better quality. When this order was delivered it was returned. Leg-non went to see the vessel when it was at Avondale and concluded the malfunction was due to improper installation.

Concerning the installation of the equipment we look to the testimony of Vincent Gauthreaux, engineer aboard the vessel who installed the flex couplings along with Herbert Rivero. Gauthreaux had never installed flex couplings previously and had problems putting them back together. It took all night and most of the next day to complete the work. To get the manifold back under the turbo charger he had to loosen the flex pipes. When these were put back together they were slightly out of alignment. When the flexes were delivered they were attached to the manifold, but he had to disassemble them to put them on the engine. He twisted the flex pipes which were out of alignment to make them fit. At no time did he request instructions from defendant relative to installation.

It is clear from the testimony thus adduced that the couplings and flexes were made according to plaintiff’s instructions, that they should be able to withstand temperatures in excess of 800 degrees. The measurements were made by defendant and manufactured according to its recommendations. The installation was performed by plaintiff’s employees without instruction or supervision from defendant.

As to why the system failed, the only expert to testify was William G. Mitchell, the estimating engineer at Avondale’s Harvey yard. His testimony was offered by plaintiff. He examined the flex couplings removed from the system following the malfunction and described the material as mild steel flanges with stainless steel bellows. He was unable to tell whether the material used was 321 stainless in the absence of a chemical analysis, but 321 stainless is recommended for temperatures from 800 to 1200 degrees, and that was the material supplied by Avondale when the repairs were made. This can be ordered with or without a heat shield. The heat shield will withstand temperatures up to 1600 to 1800 degrees. He suggested the heat shield after examining the material that was already on, and for some explanation as to why it failed.

Mitchell contacted a former dealer of Brons engines and found the exhaust temperature in the area of the flexes was 1600 degrees and that under heavy load conditions the exhaust temperatures can go as high as 1800 degrees.

Under normal conditions a flex built to withstand 1000 degrees will burn up when exposed to 1600-degree temperature (without the heat shield).

The original flexes had been misaligned on the vertical as well as horizontal. He said they had been pulled into position to connect the floating flange when they were originally installed and the effect of the misalignment on the failure of the couplings is that when you are stretching one side you are compressing the other. When it is then exposed to heat they cannot expand uniformly.

Mitchell concluded the malfunction occurred because the material supplied was not able to withstand the necessary temperatures, or the lack of a heat shield, or improper alloy. By visual inspection the fact that the corrugations had been distorted made it evident that they were misaligned. They were not expanding and retaining the general configuration they were in when purchased.

In response to a question as to whether the misalignment came from the installation or the measurements taken for the production or manufacture of the couplings he stated the couplings cannot be installed properly in more than one manner, and if someone took measurements the flex couplings should fit properly. However he stated the misalignment would be in the installation and not in the measurements.

“Q Okay and if the measurements are wrong then will you have a misalignment such as appears on ‘P-3’?
A No, sir. Measurements cannot create the misalignment. The misalignment is at the time of installation. It is not on the overall measuring, overall length of the flange. If you have a flange — if you have a flexible in a line it is from A to B, from two points. This is the opening that you have to install a flexible. Now whether one pipe is in line or the other, I mean it’s not in the measurement itself. When you measure, you measure from A to B to get the overall from face to face of the two flanges. And this you assume is your overall length. Then your two pipes that interconnect are supposed to be in line vertically and horizontally so that you have the proper connection between your two flanges without creating any undue stress to the flexible itself.
Q Now, in looking at ‘P-3’ flex coupling, would you have expected this flange to have failed within two days, 20 hours of running, just from the misalignment?
A Under normal installation, no, sir.
Q What would you attribute then the failure within 20 hours or within two days of running?
A The misalignment, improper material.” Tr. pp. 29-30.

Appellant contends that the material supplied was sufficient to withstand temperatures up to 1000 or 1200 degrees and thus complied with the order placed by plaintiff. Rivero confirms he ordered material to withstand temperatures somewhat higher than 800 degrees, and plaintiff’s expert confirms that 321 stainless is recommended to withstand temperatures up to 1200 degrees. Apparently the temperature far exceeded 1200 degrees in Brons engines pulling a heavy load, according to information elicited by plaintiff’s expert.

We have carefully examined Rivero’s testimony and it is apparent he was unaware of such extremes in temperature, contending that at 1600 degrees it would burn up. Had defendant been made aware of the extreme temperature requirement, the material suggested and/or the use of a heat shield could have been recommended. It appears to us therefore that the use of improper material was imputable to plaintiff’s failure to correctly advise defendant about the temperature requirement.

It is also clear from plaintiff’s expert testimony that improper installation, and not improper measurements, was also responsible for the malfunction. Plaintiff did not request defendant to install the product, nor did defendant offer such services, or supervise the installation. It was not a part of the purchase price, or contemplated by either party. Plaintiff received what it ordered, based upon information supplied by it to defendant, and that material supplied was improperly installed. Neither of these factors was attributable to defendant.

Because of our determination in the first specification of error we find it unnecessary to discuss Errors 2 through 5 and turn our attention to Error No. 6.

Appellant contends it is entitled to recover the cost of the products supplied, $5,061.06, plus attorney’s fees under the provisions of R.S. 9:2781. This statute provides in pertinent part when any person fails to pay on an open account within 30 days after receipt of written demand correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney’s fees for the prosecution and collection of such claim when judgment is rendered in favor of the claimant.

We are of the opinion that plaintiff is entitled to be paid for the material it supplied, based on plaintiff’s specifications, in the sum of $5,061.06 as prayed, but we reject the claim for attorney’s fees.

The work involved was for a single job and the record contains no evidence of other business transactions between plaintiff and defendant, or any expectation of future dealings. Under these circumstances we cannot find that this action is on an open account entitling plaintiff to attorney’s fees. Womack Bros. v. Equipment Rental Services, 399 So.2d 661 (La.App. 1st Cir. 1981); Jenkins v. Dicon, Inc., 387 So.2d 649 (La.App. 1st Cir. 1980); Benglis Sash & Door Co., Inc. v. Leonards, 378 So.2d 992 (La.App. 3d Cir. 1979), reversed on other grounds, 387 So.2d 1171 (La.1980); Richards v. Gulfco Electronics Corp., 360 So.2d 609 (La.App. 4th Cir. 1978), writ denied, 363 So.2d 69 (La.1978). Accordingly we reject plaintiff’s request for attorney’s fees.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment on the main demand in favor of defendant Coastal Flex Company, Inc., and against plaintiff, O. J. Rivero Towing Company, dismissing plaintiff’s demands. And it is further ordered that there be judgment on the reconven-tional demand in favor of plaintiff-in-recon-vention Coastal Flex Company, Inc., and against the defendant-in-reconvention O. J. Rivero Towing Company in the full sum of $5,061.06, with interest from date of judicial demand until paid. All costs in both courts are to be paid by plaintiff, O. J. Rivero Towing Company.

REVERSED.

      . Various other defendants were named by the original and supplemental and amended petitions, all of whom were insurers under hull and machinery insurance policies. No judgment was rendered against those defendants, and they are not before this court.


author: PONDER, Judge.

text:
    John FULFORD v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 14911.
    Court of Appeal of Louisiana, First Circuit.
    May 17, 1982.
    John Fulford, in pro. per.
    Houston T. Penn, Asst. Atty. Gen., Louisiana Dept, of Justice, Baton Rouge, for defendant-appellee Frank Blackburn, Warden, Louisiana State Penitentiary.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

This appeal was scheduled for submission on May 12,1982, and all attorneys of record and appellant (appearing in proper person) were notified. Appellant was not present or represented at that time, nor had any brief or motion for continuance been filed on his behalf. On authority of Rule VII, Section 5(b), this court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: PER CURIAM.

text:
    Quentin CASHMAN v. BAMA JANITOR SERVICE, INC., an Alabama Corporation.
    81-246.
    Supreme Court of Alabama.
    June 4, 1982.
    Von G. Memory, Montgomery, for appellant.
    John N. Albritton of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee.
   PER CURIAM.

Because this case, involving a noncompet-ition agreement, had been tried and was pending on appeal prior to the release of this Court’s opinion in DeVoe v. Cheatham, 413 So.2d 1141 (Ala.1982), this cause is remanded for reconsideration in light of the guidelines set forth in DeVoe, supra. Upon the trial court’s reconsideration (with or without a further evidentiary hearing, at its discretion), a report of its findings and order is due in this Court not later than 60 days from the date of the order of remand.

REMANDED WITH INSTRUCTIONS.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


author: TYSON, Judge.

text:
    Henry GAINES v. STATE of Alabama.
    3 Div. 536.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    B. F. Lovelace, Brewton, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Henry Gaines filed a Petition for Writ of Habeas Corpus in the Circuit Court of Es-cambia County, asserting that he was in the care and custody of the Alabama State Penal Authorities, being held at Fountain Correctional Center. Gaines asserted that his continued imprisonment was in violation of “due process of law” in that he had not been afforded a “parole hearing” which he maintained should have been held on or about July 25, 1981.

The Circuit Court of Escambia County denied the habeas corpus petition without conducting a hearing thereon, based upon a motion to dismiss filed on behalf of the respondent warden by the District Attorney of said county. Among the grounds asserted in the respondent’s motion was that a Petition for Writ of Habeas Corpus in state court cannot be used as basis for “consideration by an inmate for parole.”

The circuit court granted the motion and denied the habeas corpus petition but allowed Gaines to appeal to this court in forma pauperis.

I

The issue thus raised by this appeal presents for the first time in the Alabama State Appellate Courts the issue of whether or not the statutes of the State of Alabama with reference consideration of parole create a “liberty interest” within the meaning of the recent United States Supreme Court opinion in Greenholtz v. Nebraska, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).

In opposing the inmate’s petition, the State of Alabama in brief cites this court to the more recent opinion of the United States Supreme Court in Connecticut v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981) and the opinion of the United States Court of Appeals for the 5th Circuit, construing the Texas Statutes in Williams v. Briscoe, 641 F.2d 274 (1981) and the opinion of Judge Truman Hobbs of the Middle District of Alabama construing the Alabama Statutes in Johnston v. Alabama, 530 F.Supp. 589 (1982).

The Alabama Statute under which the appellant seeks his release is § 15-22-26, Code of Alabama 1975 and § 15-22-28(d), which sections read as follows:

“§ 15-22-26. Standards for release of prisoners on parole.
“No prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board of pardons and paroles is of the opinion that there is reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law and that his release is not incompatible with the welfare of society. If the board shall so determine, such prisoner shall be allowed to go upon parole outside of prison walls and enclosure upon such terms and conditions as the board shall prescribe, but to remain while thus on parole in the legal custody of the warden of the prison from which he is paroled until the expiration of the maximum term specified in his sentence or until he is fully pardoned. (Acts 1939, No. 275, p. 426; Code 1940, T. 42, § 7; Acts 1951, No. 599, p. 1030.)” “§ 15-22-28. Investigation for parole; cooperation with board of corrections; temporary leave; restrictions on paroling; minimum sentence to be served pri- or to eligibility for parole.
“(d) No prisoner shall be released on parole except by a majority vote of the board, nor unless the board is satisfied that he will be suitably employed in self-sustaining employment or that he will not become a public charge if so released. The board shall not parole any prisoner for employment by any official of the state of Alabama, nor shall any parolee be employed by an official of the state of Alabama and allowed to remain on parole; provided, however, that this provision shall not apply in the case of a parolee whose employer, at the time of the parolee’s original employment, was not a state official.”

In construing the above statutes, Judge Hobbs in Johnston v. Alabama, supra stated:

“The Alabama statutes dealing with the standards for release of prisoners on parole emphasize a number of subjective factors that must be considered before a prisoner is granted parole. These subjective factors include the probability that the prisoner will not again violate the law, whether the prisoner’s release is not incompatible with the welfare of society, and whether the prisoner will be able to find suitable employment and not become a public charge if released.
“[1] The language of the Alabama parole statutes is similar to the Texas statute examined in Williams v. Briscoe, 641 F.2d 274 (5th Cir. 1981) and the Georgia statute reviewed in Houser v. Morris, 518 P.Supp. 873 (N.D.Ga.1981). In both of those cases the courts distinguished the states’ parole statutes from the Nebraska statute reviewed in Greenholtz and found the Texas and Georgia parole statutes to hold out no expectation of parole. The Alabama statutes, as the Texas and Georgia parole statutes, do not contain any language similar to that in the Nebraska statute, which mandates parole unless one of four exceptions arises. Consequently, this Court finds that the Alabama statutes dealing with parole hold out no expectation of parole and therefore do not create a liberty interest entitled to the protection of due process.”

Judge Joseph D. Phelps of the Circuit Court of Montgomery County, Alabama, reached a similar result in the case of Andrus v. Lambert, Montgomery Circuit Court No. CV-81-1074-P (January 1982).

This court is of the opinion that the views expressed by Judge Hobbs in construing the Alabama Statutes are correct. We are also of the view that Judge Phelps gave proper treatment to the case herein cited when he denied release.

These views find further support in the still more recent opinion of the Supreme Court of the United States in Jago v. Van Curen, construing the Ohio Statutes, - U.S. -, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981).

We therefore hold that the Circuit Court of Escambia County properly denied the habeas corpus petition in the instant cause, without conducting a hearing thereon for the reasons hereinabove stated. This cause is therefore affirmed.

AFFIRMED.

All the Judges concur.

      . Tex.Code Crim.Proc. Art. 42.12 §§ 14A(e), 15(a), 15(f) (Vernon 1979).

      . Ga.Code Ann. § 77-514 (1973).


text:
    Willie Herbert DOZIER, alias v. STATE.
    4 Div. 995.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.

      W. Terry Bullard, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

First degree rape; sentence: life imprisonment without parole.

The prosecutrix, a ten year old female, testified she was baby sitting for her younger brother and sister, in her mother’s temporary absence, on February 8, 1981. About 2:00 a. m. the prosecutrix was awakened by a knock on the front door of her mother’s house. She opened the door and saw a black male whom she had never seen before. He inquired as to whether her mother or mother’s boyfriend were home, and upon receiving a negative answer, forced his way into the house. Although the living room light was not on, she was able to observe the man because of the illumination from the lights in the kitchen and bathroom and a television in the living room. The appellant took the prosecutrix into the bedroom where her brother and sister were sleeping. This room was illuminated by the light from a black and white television. Appellant removed his clothes and then at knife point forced the prosecu-trix to remove her pants and panties. He put the prosecutrix in the bed and in two separate episodes penetrated her private part with his private part. Appellant told her that if she awakened her brother and sister he would kill her. After the second penetration, the appellant began fondling her private part. A horn blew, and appellant left stating he would return. The prosecutrix then ran to her aunt’s neighboring house and reported the attack. Her mother arrived shortly and the prosecutrix was taken to the hospital.

The prosecutrix stated she was able to observe appellant’s face during the entire thirty to forty minute episode. Several weeks later she picked appellant’s picture out of a group of five photographs. She could not remember appellant’s coloration. However she indicated the assailant’s height to the jury and stated he was of medium build. She testified that she identified the appellant in the courtroom based upon her observation of him the night he attacked her.

Dr. Raymond McKnight testified he examined the prosecutrix at the Southeast Alabama Medical Center emergency room early on Sunday morning, February 8,1981. He administered a standard rape examination and found evidence of very recent injury to the hymeneal ring, as well as the presence of what, in his opinion, appeared to be a large amount of semen in the vagina.

Charles F. Brooks, a crime laboratory analyst for the State, testified he tested a sex crime examination kit received in the prose-cutrix’ case. The samples analyzed indicated the presence of semen and intact specimens of spermatozoa.

The State rested at the close of Mr. Brook’s testimony and appellant moved for a directed verdict. The State was then allowed to reopen its case and presented the testimony of Sergeant Harding Miley of the Dothan Police Department. Sergeant Mi-ley testified he conducted the photographic array in which the prosecutrix picked out the appellant. He stated he did not mention appellant’s name at that time nor did he tell her the man’s photograph was in the array. The prosecutrix’ recollection in her testimony, however, was that he had told her the man was in the array, but had not indicated which man nor his name. Sergeant Miley testified it did not take her long to pick out appellant, and that she stated he was a man she would never forget.

Appellant testified on his own behalf, and denied assaulting the prosecutrix. He presented an alibi defense, and presented other testimony in support thereof.

I

Appellant contends the evidence presented at trial was not sufficient to support a conviction of rape in the first degree. He specifically points to minor contradictions in the prosecutrix’ testimony concerning the appellant’s coloration, as well as the prose-cutrix’ initial failure to observe appellant seated in the courtroom and point him out as her assailant. We note that the prosecu-trix made it ultimately very clear in her testimony that appellant was the man who attacked her, and that her identification was based upon her forty minute observation of him during the attack. She described his height and weight to the jury as well, and showed no hesitation in her identification of appellant as the man who assaulted her.

Although the record indicates some minor confusion on the part of the prosecutrix as to appellant’s coloration, the record clearly supports a positive identification of the appellant and a prima facie case of rape which was sufficient to sustain the jury’s verdict. Smelcher v. State, 385 So.2d 653 (Ala.Cr.App.1980); Jackson v. State, 56 Ala.App. 597, 324 So.2d 311 (1975). The question of identification was entirely a question of fact for the jury, and the evidence presented was sufficient to sustain their conclusion. Seals v. State, 271 Ala. 142, 122 So.2d 513 (1960); Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960).

II

Appellant also questions the constitutionality of the Alabama Habitual Offender Statute, under which he was sentenced, as it was applied to him.

Appellant first contends the statute is an ex post facto law as applied to him because the prior conviction proceeded under by the State in applying the statute occurred prior to the passage of the Habitual Offender Statute. This argument is without merit. Smith v. State, 392 So.2d 1273 (Ala.Cr.App.1980); Wilson v. State, 371 So.2d 932 (Ala.Cr.App.1978) affirmed, 371 So.2d 943 (Ala.1979).

Appellant also alleges the statute as applied to him is unconstitutional in that life without parole is cruel and unusual punishment in that the sentence is excessive in light of the underlying prior convictions. This argument also is without merit. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981); Thompson v. State, 405 So.2d 717 (Ala.Cr.App.), cert. denied, 405 So.2d 721 (1981).

This record is free of error. This case is therefore affirmed.

AFFIRMED.

All the Judges concur.