author: SUMMERS, C. J.,

text:
    CARGILL, INC., et al. v. CEMENTATION COMPANY OF AMERICA, INC., et al.
    No. 66193.
    Supreme Court of Louisiana.
    Dec. 7, 1979.
   In re Cementation Company of America, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 377 So.2d 1334.

Granted. The judgment of the Court of Appeal is reversed and the order of the trial judge is reinstated.

SUMMERS, C. J.,

concurs in the grant but would prefer to set the case for argument in the regular order.

CALOGERO and DENNIS, JJ., would deny the writ.


source: Caselaw Access Project

license: Public Domain

text:
    Frances HEBERT et al. v. WOMAN’S HOSPITAL FOUNDATION.
    No. 66337.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Woman’s Hospital Foundation, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 377 So.2d 1340.

Writ denied.


text:
    RECHERCHE, INC. v. JEWELRY JUNGLE, INC.
    No. 66332.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Jewelry Jungle, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 377 So.2d 1329.

Denied.


author: SCHOTT, Judge.

text:
    Kenneth D. CARDWELL, and Clifton Cowans v. JEFFERSON RENTALS DIVISION OF J-R EQUIPMENT CORPORATION ASSURANCE COMPANY.
    No. 10121.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Order on Rehearing Sept. 5, 1979.
    On Rehearing Nov. 8, 1979.
    Breard Snellings and Jack M. Alltmont, Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for defendants-appellants.
    Edward L. Levert, Jr., Young, McMahon & Levert, New Orleans, for intervenors-ap-pellees (Sentry Insurance).

      August J. Bubert, Ardoyno & Bubert, Metairie, for plaintiffs-appellees.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

On May 16, 1975, plaintiffs were employed by Crawford Hollywood Door Sales (Hollywood) to hang and install doors. In connection with an installation at the Federal Building of an overhead door they were in the process of lifting an 800 pound drum to the top of a door frame using a one-ton chainfall hoist when the hoist broke, causing the drum to fall and strike plaintiff Cardwell and causing injury to plaintiff Cowans as he jumped back in order to avoid the falling drum and fell over some pallets in the process.

On the day before the accident plaintiff’s supervisor had rented the hoist from defendant Jefferson Rentals Division of J-R Equipment Corporation (Jefferson). When he picked up the hoist he put it in his truck, kept it in the truck overnight at his home and delivered it to the job site on the next morning. Upon inspection of the hoist after the accident it was found that the shaft had broken at the end where a cotter pin goes through it.

The trial judge decided the question of liability against Jefferson and its insurer on the basis of strict liability under LSA-C.C. Art. 2317 as interpreted and applied in Loescher v. Parr, 324 So.2d 441 (La.1975). In his reasons for judgment, the trial judge found that the defect in the hoist was such that it was not discoverable upon a reasonable inspection by Jefferson and the failure was not caused or contributed to by any abuse or misuse of the hoist on the part of plaintiffs or any of the employees of Hollywood. Thus, the first error specified by defendants on appeal is the imposition upon them of strict liability.

Defendants rely on Lyons v. Jahncke Service, Inc., 125 So.2d 619 (La.App. 1st Cir. 1960) in which the court held that a compensated bailor of potentially dangerous movables is responsible to third persons for defects existing at the time of the delivery to bailee of which he had actual knowledge or could have discovered upon the exercise of reasonable care. The court held:

“Such a bailor is not responsible to third persons for defects arising during the bailment period subsequent to delivery to bailee nor is he responsible to third parties for hidden or latent defects existing at the moment of delivery and discoverable only upon minute or extraordinary inspection or examination.”

We have no hesitancy in concluding that the approach to the liability of the bailor as expressed by the court in the Lyons case must be re-examined in the light of the jurisprudential development of the doctrine of strict liability which began with Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971) and culminated with Loescher v. Parr. In the process of this development the court made a drastic change in the interpretation of Arts. 2315 through 2324 of the Louisiana Civil Code on liability for offenses and quasi-offenses extending strict liability to the owner of an animal under Art. 2321 in Holland v. Buckley, 305 So.2d 113 (La.1974) and to the parents of small children under Art. 2318 in Turner v. Bucher, 308 So.2d 270 (La.1975). In the Loescher case, the court specifically dealt with Art. 2317 which provides as follows:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

After discussing the cited jurisprudence and the historical basis for the cited articles of the Civil Code, the court concluded:

“. . It is logically consistent and in accord with the scheme of delictual responsibility represented by [its] companion code articles to hold that, similarly, Article 2317 embodies the concept of the legal fault of the guardian of a thing for the damage caused by the defect of his thing.”

The argument in the instant case narrows down to the point that when the chain hoist broke it was no longer in the “custody” of Jefferson but was rather in the custody of Jefferson’s lessee or bailee Hollywood, so that Art. 2317 and the Loescher case provided no basis for liability to plaintiffs on the part of Jefferson. In resolving this problem the trial court relied on the language of footnote 6 in the Loescher case at 324 So.2d 447. In the body of the opinion the court said the word “custody” used in Art. 2317 is a translation of the word “garde” in the French Code, and in the footnote said:

“At this point, however, we should note that the English translation of ‘sous sa garde’ as ‘in our custody’ does not fully express the concept of the ‘garde’ of a thing — the legal responsibility for its care of keeping — , so that one may lose the custody of a thing without losing its ‘garde’.”

Notwithstanding the language of this footnote, the extension of Art. 2317’s liability to Jefferson in this case surely involves an- extension of the holding in Loescher v. Parr because the court there found that the tree which caused the damage was in the custody of the defendant owner of the tree, whereas in the instant case physical custody of the hoist had been transferred from Jefferson to Hollywood when the accident occurred. Nonetheless we have concluded that this extension of the Loescher case is warranted under the facts and circumstances of the instant case and by virtue .of the court’s seeming approval of the discussion and the specific quotation given in footnote 7 of the Loescher opinion at 324 So.2d 449 from Verlander, We Are Responsible, Tulane Civil Law Forum No. 2 (1974):

“[T]he things in one’s care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. This relationship will ordinarily be associated with ownership, but the guardianship will also belong to the bailee, the lessee, the usufruc-tuary, the borrower for use and the repairmen, among others . . .. The owner may transfer the guardianship by transferring the thing to another who will bear such a relationship to the thing as to himself have the care of it. He may also lose the care of this thing, principally by the theft of the thing.”

The chain hoist in this case broke almost immediately after Hollywood’s employee took delivery of it from Jefferson. The fact that it was held overnight before being put to actual use is of no moment since its failure occurred almost from the first moment it was being used by plaintiffs. As we read the quotation from the Verlander article, his problem was to find a basis for extending the liability of the owner to the bailee, lessee, etc., but liability seemed to remain in the owner except in that case where he lost the care of the thing “principally by the theft of the thing.” The artificial transfer of custody in this case from Jefferson to Hollywood without the intervention of any act of maintenance or indeed without the intervention of any use of the thing whatsoever by Hollywood before it broke did not remove the chain hoist from the custody of Jefferson in such a way as to relieve Jefferson of its liability under Art. 2317. Having concluded that the judgment appealed from is correct with respect to liability, we turn now to the question of the quantum of the awards.

Cowans was awarded $7500 for a lumbo-sacral strain while Cardwell was awarded $90,000 for general damages and $153,-110.11 for loss of wages past and future. The award for pain and suffering was explained by the trial judge to include $9,000 for a lumbosacral and cervical sprain, and the balance of the $90,000 for his knee injury.

Following the May 16 accident both Cow-ans and Cardwell were referred by their attorney to Dr. Sam Charles Macaluso. He saw them both on May 20, and who gave the following testimony: Cowans was complaining of pain and stiffness in the back and following a physical examination Dr. Macaluso found tenderness, spasm and restriction of movements in the back area. He prescribed muscle relaxants and diathermy treatments. He last saw Cowans on November 14, 1975, and found that he was improving but he still had tenderness, spasm and restriction of movements. He never discharged Cowans. His diagnosis was a lumbosacral sprain. As to Cardwell, he was complaining of pain to the right knee and back, and on examination Macalu-so found tenderness, spasm and restriction of movements over the cervical as well as the lower back area. There was also tenderness and restriction of the right knee, and he diagnosed cervical sprain, lumbo-sacral sprain and contusion of the right knee. He prescribed muscle relaxants and diathermy treatments, and he continued to treat Cardwell until November 14, 1975, when he felt that Cardwell had improved with respect to his neck and back although his knee might require further treatment. Macaluso’s records showed that Cowans and Cardwell were both seen by him on nine identical dates between May 20 and September 30. Cowans was seen on October 4 while Cardwell was seen on October 20, and they were both seen for the last time on November 14. Cowans received 38 diathermy treatments between May and October, while Cardwell received 36 diathermy treatments between May and October, and these treatments were on the same days and were identical except for the first two, which Cowans received and which Cardwell did not receive.

Other significant evidence consisted of Cowans’ testimony that he missed only a day and a half of work even though he insisted that his back was hurting him throughout this period of time, while Card-well missed only eight days of work in the two weeks following the accident and then worked in excess of 40 hours a week for the rest of the year (except for one week in August when he worked 34 hours and one week in October when he worked 34 hours) until he quit his job in the last week of December.

We have concluded that these $7500 and $9,000 awards for supposed soft tissue injuries constitute an abuse of the trial court’s discretion. Had Cowans and Cardwell produced no medical witness whatsoever we would readily conclude that the judgments of $7500 and $9,000 were excessive. Dr. Macaluso’s testimony lends no support to their case. This is the same Dr. Macaluso who treated the plaintiffs in Sanders v. Hall and whose testimony was the sole support for awards of $2,000 in general damages to four plaintiffs who had identical 15-week courses of diathermy treatments. In our initial opinion, at 345 So.2d 590, we felt we took the view that we were mandated by Coco v. Winston Industries, Inc., 341 SO.2d 332 (La.1976) to affirm but the Supreme Court granted writs and remanded the case to us. We then reduced these awards to $300 each at 350 So.2d 262, and the Supreme Court subsequently refused writs at 352 So.2d 703 (La.1977). We conclude that Dr. Macaluso’s testimony is entitled to little weight in providing any objective medical support for plaintiffs’ soft tissue injuries. People are not trained seals when it comes to experiencing pain and having a need for the relief which can be afforded by proper medical treatment. They do not pop up on the same day, requiring initial treatment by a physician four days after the accident occurred. Their pain and discomfort do not occur in such unison that they require 36 diathermy treatments on the same dates over a six month period and then stop hurting simultaneously on a date six months after the accident to the extent that they no longer require treatment. Such a record would compel incredulity even by the most gullible. We have concluded that awards of $500 to Cowans and $750 to Cardwell for their soft tissue injuries are appropriate awards.

We turn next to the knee injury sustained by Cardwell for which he was awarded $81,000 in general damages and which was the basis of the award for loss of wages.

Cardwell was seen by Dr. Russell Levy, an orthopedist, for his knee on January 1, 1976. At the outset Dr. Levy discovered that Cardwell had sustained an injury to the same knee seven years previously in a motorcycle accident and the knee had required surgery. This earlier knee condition consisted of a rupture of the right medial collateral ligament and a tear of the interi- or cruciate ligament. After some conservative treatment of the knee Dr. Levy performed surgery on Cardwell’s knee and his diagnosis of a torn lateral meniscus of that knee was confirmed. The entire cartilage was removed on the outside at this time and early changes of degenerative arthritis were noted but did not warrant an operation on the knee cap itself. By June 21, 1976, Cardwell’s knee had improved and he had a full range of motion in the knee and Dr. Levy felt that Cardwell could return to work with a limitation on the amount of climbing he could do. Dr. Levy continued to see plaintiff and by February, 1977, because of recurring synovitis or swelling of the knee Dr. Levy felt that he should not climb on ladders and should avoid standing over long periods of time. He assigned an overall disability rating to Cardwell of 10% disability with 5% of that attributed to the first accident and surgery and the remaining 5% attributed to the present accident and surgery.

At the time of the accident, plaintiff was earning $5.15 an hour and his work was heavy and laborious consisting of regular climbing on ladders and handling heavy doors and component parts. Cardwell is virtually illiterate, being unable to read or write, and his ability to find a job was and is limited primarily by this handicap. The trial judge arrived at his judgment of $153,-000 for wages based on the testimony of an economist who computed his loss of past earnings as the difference between what he should have made and what he actually did make doing various jobs as a watchman and in other areas between the date of the accident and time of the trial. Future earnings were based on a work life expectancy of 21.6 years and a sum discounted on the basis of 5.7/s%. He calculated Cardwell’s earnings by figuring eleven months’ salary in 1975, and arriving at a monthly factor on that basis. After adding to these figures a 3% increase for inflation he deducted an amount which Cardwell could earn based on the minimum wage. We are unable to accept these figures.

In the first place, the figures themselves which the economist used are erroneous in that Cardwell’s 1975 work record was not a sum earned over 11 months but rather that same sum earned over the full year less eleven days which he lost. This would have the effect of decreasing the monthly factor which provided the basis for the economist’s figures.

The record of this case, as far as Card-well’s knee is concerned, reads more like a workmen’s compensation case than a tort case. It establishes that Cardwell can no longer perform the job of a door hanger but there is no evidence that he cannot be rehabilitated so as to perform work which would pay him more than the minimum wage and perhaps as much as he was getting from Hollywood. He produced a vocational rehabilitation counselor who specifically declined to gainsay any opinion as to Card-well’s ability to work but confined her testimony to the fact that Cardwell had gone around looking for other jobs and had not taken any. There is evidence that he has done tack welding in the past. Cardwell’s principal problem is not his knee, as far as employment is concerned, but rather his illiteracy. He is not even able to handle the job of a watchman properly because he is unable to make reports. Nothing in this record indicates that he can’t be taught to read and to write and thereby have a greater potential in the job market. The trial judge basically concluded that Cardwell is totally and permanently disabled as in a workmen’s compensation case, although Jefferson was credited for minimum wages which Cardwell might earn.

However, the most important weakness in Cardwell’s case is in the fact that this case was consolidated with Cardwell’s workmen’s compensation claim against Hollywood in which shortly before the trial of the instant case the trial judge approved a compensation settlement for Cardwell in the amount of $3,282.

If his claim in workmen’s compensation was worth so little considering that workmen’s compensation legislation is social and is to be interpreted liberally in favor of the employee who is hurt on the job, and considering that his claim for workmen’s compensation could not be compromised without judicial approval we are constrained to hold that the award to Cardwell for lost wages has no rational or legal basis and constituted an abuse of discretion on the .part of the trial court.

A similar approach was taken by the court in Burke v. Commercial Standard Ins. Co., 38 So.2d 644 (La.App. 2nd Cir. 1948):

“Such a settlement ill accords with the strenuous assertion of plaintiff in this suit as to the serious nature and results of his alleged injury, and it is most difficult for us to reconcile plaintiff’s willingness to accept a pittance of some $600.00 in settlement of a claim which, if his contentions be accepted in the present case, comprehended total disability. Surely a proceeding under the liberal provisions of our compensation statutes which, if successful, would have resulted in judgment in favor of plaintiff for compensation at the rate of $20.00 per week for not more than 400 weeks, was a consideration not lightly to be set aside in a weighing of values, as opposed to the obvious chances and uncertain results of litigation under a tort proceeding.”

Finally, the general damage award of $81,000 for Cardwell’s knee was grossly excessive and was also an abuse of discretion. Except for some slight limitations in climbing and standing over long periods Dr. Levy found no residual from Cardwell’s knee injury and did not expect any. Much of the residual was undoubtedly left over from the injury Cardwell had seven years previous to the same knee. It is significant that Card-well worked almost without interruption after the accident in May until the end of the year, quitting shortly before the case was first assigned for trial. This serves to support the conclusion that Cardwell was not in great pain but rather was suffering some discomfort at the most.

We have concluded that the most this record supports for loss of wages for Card-well is $10,000, and the most it supports for general damages for the knee is $25,000.

Accordingly, the judgments appealed from will be amended to reduce the award to Clifton Cowans to the sum of $500, and the judgment in favor of Kenneth D. Card-well will be reduced to $35,750. Costs of this appeal are taxed against plaintiffs.

AMENDED AND AFFIRMED.

ORDER GRANTING REHEARING

This case is before us on an application for rehearing by Kenneth D. Cardwell and Clifton Cowans, plaintiffs-appellees.

IT IS ORDERED that a rehearing be granted. The case will be submitted on rehearing on October 9, 1979, on present record and on additional briefs to be filed by defendants-appellants on or before September 21, 1979, and by plaintiffs-appellees on or before October 5, 1979. These additional briefs should examine our original opinion dated May 4, 1979, in the light of the Supreme Court decisions in Folse v. Fakouri, 371 So.2d 1120 (La.1979) and Reck v. Stevens, 373 So.2d 498 (La.1979).

ON REHEARING

We granted a rehearing limited to a reconsideration of our reduction of the trial court’s awards. We took this action considering two recent opinions of the Supreme Court, Reck v. Stevens, 373 So.2d 498 (La.1979) concerning a reduction of an award for general damages, and Folse v. Fakouri, 371 So.2d 1120 (La.1979) concerning a reduction of an award for loss of wages and earning capacity. The Reck case concerns the awards to both of the plaintiffs while the Folse case concerns the award to Card-well only.

In the Reck case the court stated: “It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason be [modified].” Then the court should resort to prior awards in order to determine the appropriate award in the case.

The articulation requirement creates some difficulty. When the Court of Appeal concludes that an award constitutes an abuse of the much discretion of the trier of fact that conclusion is normally supported by an opinion which covers the highlights of the case and provides the principal reasons for the conclusion. In the process briefs are read, oral arguments are heard, the transcript of testimony is read, exhibits are examined, legal authorities are consulted and conferences are held by the panel. Judges naturally apply to the case lessons from their own experiences and subjective philosophies and a process of reasoning to reach a conclusion which, hopefully, is rationally sound and just and fair to the litigants. A true articulation of this process in every ease where an award is believed to be so high or so low as to constitute an abuse of the trial court’s discretion is an impossibility. Furthermore, the extent of articulation required in a case depends upon how obvious is the excess or inadequacy of the award in question.

Our original opinion in this case may satisfy Reek’s articulation requirements, but in the process of considering the case on rehearing we have noted some factors which were not previously mentioned and are significant.

Regarding the awards to Cowan and Cardwell for the soft tissue injuries for which they were treated by Dr. Macaluso and for which Cowan was awarded $7500 for general damages and Cardwell $9000, we are satisfied that our original opinion sufficiently articulated the reasons why we concluded that the awards constituted a gross abuse of the trial court’s discretion. That the trial court did not have the benefit of the Supreme Court’s ultimate disposition of Sanders v. Hall, 352 So.2d 703 (La.1977) and the corresponding sound rejection of Dr. Macaluso’s testimony tends to explain the excessiveness of the awards. The very same considerations which led us to reduce the awards in the Sanders case (350 So.2d 262 and 345 So.2d 590) have compelled us to reduce plaintiffs’ awards in this case.

In reaching this conclusion we are well aware that the trial judge was highly impressed with the plaintiffs but his judgment's underpinnings were all of the visits to and diathermy treatments at Dr. Macalu-so’s office, all done in almost perfect unison by the plaintiffs. With Dr. Macaluso discredited there is simply no basis for the judgment.

Having articulated our reasons for concluding that these awards constitute an abuse of the trial court’s discretion we need turn only to Sanders v. Hall to determine the proper range of plaintiffs’ awards. The Sanders plaintiffs got $300 each for their highly suspect claims. Cowans gets $500 and Cardwell $750 (for the soft tissue injury only).

We next consider Cardwell’s knee injury for which he was awarded $81,000. Without repeating everything contained in our original opinion some clarification and amplification are in order. Immediately after the accident on May 15, 1975, Cardwell was treated ' by his employer’s physician. He first saw Dr. Macaluso on May 20 and had some moderate tenderness and restriction of the right knee at that time. During the ensuing six months of visits and diathermy with Cowans, Cardwell did have some heat applications to his knee and was instructed to wear a knee support. But the knee was not of great concern to Dr. Macaluso and it was not seriously treated until January 1, 1976, when Cardwell saw Dr. Russell Levy, an orthopedic surgeon. Except for the first twelve days after the accident Cardwell had continued in his job without interruption until the last week of December earning $2546 in the last quarter of 1975, $2509 in the third quarter, $2434 in the second quarter (when the accident occurred) and only $2367 in the first quarter.

When, he first examined Cardwell Dr. Levy found a scar from previous knee surgery, some atrophy, instability and tenderness. On January 19 Cardwell returned complaining of increased discomfort and locking of his knee. Dr. Levy suspected a torn cartilage and considered an arthro-gram which he delayed until he could review the history of Cardwell’s previous surgery. Over the next three months Dr. Levy administered conservative treatment but there was an increase of atrophy, Cardwell complained of more pain and locking of the knee and swelling developed from fluid or thickening of the joint’s lining. Finally, an arthrogram was performed and indicated that the lateral cartilage was torn. In the meantime the report from Dr. Rozas who had treated Cardwell for his knee injury in 1969 revealed that the medial cartilage had been repaired in surgery and Cardwell was left with a chronic synoritis or swelling from that accident. On April 27 Cardwell was admitted to the hospital for surgery on the lateral cartilage. In the course of the operation Dr. Levy observed degenerative changes on the medial cartilage consistent with Cardwell’s age and removed the lateral cartilage. After normal post-operative treatment and therapy, by June 21 Card-well had a full range of motion in the knee and was discharged as able to return to work except for climbing. He never returned to Dr. Levy for further treatment.

The work record shows that Cardwell worked full time in March and- April, 1976, worked in July when he quit, and returned to work in September. He worked full time from the second week of September until the end of December, 1976, when he quit again. At that time the case was scheduled for trial in January, 1977.

In his reasons for judgment the trial court stated:

“ . . . Thus the Court concludes that for the benefit of the defendant and its appeal if there be one, it puts into the record that it is convinced that Cardwell’s present problems are as a result of the instant accident. He had gotten over the effects of the 1969 motorcycle accident

This finding is manifestly erroneous and clearly wrong. Although it is supported somewhat by Cardwell’s testimony, it is flatly contradicted by his own physician, Dr. Levy, whose credibility he vouched for when he called him as his witness. Dr. Levy testified on cross-examination as follows:

“Q And as a result of the both of the accidents, you gave him a ten percent disability of the right leg, did you not?
A Yes.
Q And you did not break down however how much was due of this ten percent was due to the first accident in 1969 and to my accident, you said it was both, but you did not say a percentage, I am wondering if you would give a percentage if possible.
A A removal of the cartilage in a knee usually gives five percent of the lower extremity, it is more or less standard between four to six or seven and five is what I usually rate these knees as unless they have a great deal of gross instability which will kick this up, it will depend upon the individual knee, but for a simple mynosectomy five percent is more or less a standard impairment. We merely say what the impairment would be. Where findings as time goes on, in a long run there’s probably more than that, they seem to get degenerative changes in the knee faster than if they have the cartilage within the knee. As they grow older they seem to have a little acceleration in it.
Q But then, would it be fair to say that as a result of my accident, this gentleman has a five percent disability of the right leg?
A As a result of the accident I would say if all I did was a simply myno-sectomy I would have to give him five percent impairment usually for a simple mynosectomy he can have some mild degenerative change at the same time.
Q The other one was the five percent also, making the ten percent?
A It depends upon the medial collater- ' al ligament and how severe the injury is. This was evidently not torn all the way.
Q He doesn’t have that much instability in the leg today?
A No.
Q So, in conclusion, I wouldn’t belabor that my accident gave him a five percent disability of the right leg and you don’t want him to climb, right?
A Yes.
Q Now, you said he could go back to work on June 21, 1976, following your operation on January 12, right? January 12 was the operation?
A Yes.

Summing up, Cardwell suffered a torn cartilage of the knee which was already injured in a previous accident. After routine treatment and surgery over a six month period he was certified by his own physician to be fit for work except for climbing and standing for eight hours. $81,000 for such an injury is a clear abuse of discretion and is subject to reduction especially since the trial judge clearly erred when he concluded that all of Cardwell’s disability was caused by the accident sued on.

An examination of the jurisprudence on rewards for similar injuries indicates that $25,000 would be appropriate. Bordelon v. Sentry Insurance Company, 359 So.2d 1046 (La.App. 4th Cir. 1976); Scott v. I. L. Lyons & Co., Ltd., 329 So.2d 795 (La.App. 4th Cir. 1976); Phillips v. Williams, 323 So.2d 808 (La.App. 4th Cir. 1975).

Finally, we turn to the award to Cardwell for lost wages in the amount of $153,110.11. In making this award the trial judge accepted without question or qualification the figure proposed by Dr. Seymour S. Goodman, an economist.

Dr. Goodman’s approach was as follows: For the year 1975 when the accident occurred Cardwell earned $12,182. He missed one month of work during that year so that one-eleventh of the total ($1108) was added to arrive at an annual base wage of $13,289. In 1976 the annual base would be increased by 3% for inflation, and from that Card-well’s actual earnings for that year of $8202 would be subtracted to arrive at a loss of wages in 1976 or $5486. A similar exercise would produce a loss of earnings in 1977 until the trial of $2691. Thus, loss of past wages to the date of trial totaled $9284.

For loss of future earnings, Goodman estimated this 41-year old plaintiff’s work-life expectancy to be 21.6 years. He estimated that plaintiff could earn the minimum wage of $2.30 per hour during this period of time or an annual figure of $4802 which, when subtracted from the annual pre-injury wage of $13,289, resulted in a future annual wage loss of $8487. The amount needed to produce this figure, adding an inflation factor of 3% per year over the 21.6 years and discounting the figure at 5.78%, amounted to $149,608. This figure added to the wages lost to the time of the trial and subject to a credit for workmen’s compensation payments made to Cardwell produced the judgment figure awarded to him.

We find a number of factors which make acceptance of Goodman’s figures manifestly erroneous and clearly wrong:

1. As pointed out in our original opinion, the annual figure of $13,289 was based on earnings of 11 months plus one-eleventh. The only established time off from the job in 1975 was twelve days immediately after the May, 1975, accident. If $12,182 was paid for 12)4 months instead of 12 months, the annual income figure used throughout Goodman’s projections was overstated.

2. Goodman’s use of the minimum wage as the only offset against Cardwell’s loss of future earnings is not supported by the record. First, as late as December, 1976, over 18 months after Cardwell’s accident, he earned $5.75 per hour. Second, he testified that he had been a tack welder in the past, he planned to take a course in welding and he intended to get work as a welder. This would obviously produce far more than the minimum wage. Third, as we pointed out in our original opinion, Cardwell’s main problem is his illiteracy. Goodman’s hypothesis that Cardwell would earn no more than the minimum wage ignores the prospect of rehabilitation. As we pointed out previously, nothing in the record suggests that Cardwell cannot be taught how to read or write, at least to the extent necessary to improve his chances for employment. Dr. Levy examined Cardwell in February, 1977, for the purpose of determining whether he was disabled for Social Security purposes, and he recommended vocational rehabilitation for Cardwell which would enable him to get a job that did not require him to climb or stay on his feet for eight hours. Dr. Levy clearly inferred that Cardwell was rehabilitable and therefore could earn more than the minimum wage.

3. Goodman’s work-life expectancy figure of 21.6 years is unrealistic. He was using averages in all occupations as opposed to plaintiff’s occupation before his injury which consisted of heavy, arduous lifting. It is highly unlikely that the average workman could continue on such a job into his sixties, but in Cardwell’s case his chances were even less than average because he was already disabled from the 1969 accident.

4. Goodman testified that $149,608 was the amount necessary to produce an annual income of $8487, increased for inflation at the annual rate of 3%. Obviously, if the $149,608 were invested in securities returning 10% the yield would be way over the minimum annual income figure. Goodman insisted that corporate bonds yielding 10% as proposed on cross examination were not as safe as a life insurance annuity on which he based the 5.78%, but common sense disputes Goodman’s theory. Even if it is conceded that bonds of the Telephone Company and other strong corporations are not safe investments as Goodman suggests, everyone knows that investments in Building & Loan Associations, which are secured by the Government, pay over 5.78% as do treasury bills of the United States Government. Even an 8% return on the near $150,000 would produce far more than Goodman’s required $8487, and after Card-well earned this amount over his entire work-life expectancy he would still have the principal to leave to his heirs.

The foregoing articulated analysis demonstrates clearly that the award for lost wages in this case was an abuse of the trial court’s discretion, manifestly erroneous and clearly wrong. The $149,608 is subject to a considerable reduction when the annual wage figure for 1975 is reduced, the credit for Cardwell’s future income is increased well above minimum wage, his work-life expectancy is decreased and a realistic discount factor is applied. Cardwell is entitled to compensation for actual losses. He is not entitled to compensation simply because he cannot perform the same job as before the accident. That element was relevant in his workmen’s compensation case which he settled for $3282. In this connection, we specifically incorporate into this opinion by reference our comments in the original opinion concerning Cardwell’s compensation settlement.

However, we have reconsidered our original reduction to $10,000 in the light of the probability that Cardwell will require rehabilitation, the trial court’s overwhelming endorsement of Cardwell’s credibility, and the recognition that the $10,000 does not adequately compensate him for past lost wages. We conclude that a reduction to $50,000 is warranted, and is the most we could possibly award to Cardwell for past and future earnings within the range of anyone’s discretion.

We are satisfied that this conclusion is not inconsistent with Folse v. Fakouri, supra, since that case involved a claim for loss of earning capacity by a self employed plaintiff whereas this case involves a straight loss of wages. In the former case a wider range of discretion is necessarily given the trial judge because the loss is not as susceptible to computation as in the latter case.

Accordingly, our original opinion is reinstated but is amended so that the judgment appealed from is amended to reduce judgment in favor of Clifton Cowans to the sum of $500, and to reduce judgment in favor of Kenneth D. Cardwell to the sum of $75,750.

ORIGINAL OPINION REINSTATED AS AMENDED.


author: ELLIS, Judge:

text:
    Roger V. PAILET v. OFFICE OF HEALTH SERVICES AND ENVIRONMENTAL QUALITY, DEPARTMENT OF HEALTH AND HUMAN RESOURCES.
    No. 12917.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 22, 1979.
    Julian Murray, Murray, Murray, Ellis, Braden & Landry, New Orleans, for appellant.
    . Marshall J. Ryals, Dept, of Health & Human Resources, New Orleans, for appellee.
    Before ELLIS, LOTTINGER and LEAR, JJ.
   ELLIS, Judge:

On November 8, 1978, Roger V. Pailet was suspended from his position as Public Health Program Administrator II, and was given detailed reasons for his suspension by letter dated November 22, 1978, which was received by him on November 25, 1978. On December 19, 1978, he appealed his suspension.

The appointing authority then moved for summary disposition of the appeal on the ground that it was not timely. On April 12, 1979, the Civil Service Commission granted the motion and dismissed the appeal. On May 14, 1979, the Commission filed an “Amended Opinion”, apparently ex proprio motu, in which it denied the motion to dismiss which had already been granted on April 12th. The appointing authority applied to this Court for a Writ of Certiorari to review the validity of the “Amended Opinion”. We granted the writ.

Civil Service Rule 13.14(e) provides as follows:

“When the Commission disposes summarily of an appeal, its decision shall be final on the date if files its written decision with the Director disposing of the case. The director thereafter shall give the interested parties notice of the decision.”

Civil Service Rule 13.33(b) provides as follows:

“No rehearing shall be granted from a final decision of the Commission.”

Under its own rules, a decision of the Commission is final when filed with the Director, and no rehearing is permissible. There are no provisions in the Civil Service Rules for reconsideration or modification of the final decisions of the Commission. We conclude that the Commission has no such authority.

The writ is therefore made peremptory, and the “Amended Opinion” of May 14, 1979, is annulled and set aside. All costs shall be paid by Roger V. Pailet.

WRIT MADE PEREMPTORY.


author: LEAR, Judge.

text:
    Roger V. PAILET v. OFFICE OF HEALTH SERVICES AND ENVIRONMENTAL QUALITY, DEPT. OF HEALTH AND HUMAN RESOURCES.
    No. 13191.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 12, 1979.
    Writ Refused Feb. 15, 1980.
    Julian R. Murray, Jr., New Orleans, for appellant.
    R. Gray Sexton, Baton Rouge, Marshall J. Ryals, Jefferson, for appellee.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   LEAR, Judge.

The Office of Health Services and Environmental Quality, Department of Health and Human Resources (appellee) moves for the dismissal of an unlodged appeal filed by Roger V. Pailet (appellant). The motion is denied.

On November 8, 1978, appellant was suspended from his position as Public Health Program Administrator II. On November 22,1978, detailed reasons for the suspension were issued by letter and were received by appellant on November 25, 1978. On December 19, 1978, appellant appealed his suspension to the Civil Service Commission.

Appellee then moved for a summary disposition of the appeal on the ground that it was not timely. On April 12,1979, the Civil Service Commission granted the motion and dismissed the appeal. The commission rejected appellant’s contention that the thirty (30) day period for taking an appeal under Civil Service Rule 13.12 did not commence running until notification of the reasons for suspension. From this decision appellant filed a timely appeal to this court as provided in the Uniform Rules, Courts of Appeal, Rule 16, Section 2.

On May 14, 1979, the commission filed an “Amended Opinion” ruling in appellant’s favor and denying the previously granted motion for summary disposition. Consequently, appellant’s appeal to this court was withdrawn. Appellee then petitioned this court for a writ of certiorari to review the validity of the “Amended Opinion”. On August 22, 1979, this court, 379 So.2d 265 rendered a decision annulling the “Amended Opinion” on the basis that there were no provisions in the Civil Service Rules for reconsideration or modification of the final decisions of the commission.

On August 27, 1979, appellant resubmitted to the commission the previously, timely filed, application for appeal to this court and the commission proceeded to prepare the record. Appellee now moves to dismiss this appeal, contending that it is not timely filed under the Uniform Rules, Courts of Appeal, Rule 16, Section 2.

Uniform Rules, Courts of Appeal, Rule 16, Section 2 provides:

“An application for an appeal shall be made to the respective Commission in writing within thirty (30) days after the date of filing of the Commission’s final decision with the Director of Personnel or the Secretary. The Director of Personnel or the Secretary shall, within twenty-four (24) hours, notify all parties to the controversy by U. S. Mail at the last known address of each of the filing of the Commission’s decisions.”

We find that the original decision of the Civil Service Commission granting the motion for summary disposition did not become final until reinstated by this court on August 22, 1979. Appellant’s application for appeal was filed on August 27, 1979 and is clearly timely under Rule 16.

Therefore, the motion to dismiss is denied. The Office of Health Services and Environmental Quality, Department of Health and Human Resources, is cast for all costs for which it is amenable at law.

DENIED.


author: COLE, Judge.

text:
    The MACEDONIA BAPTIST FOUNDATION v. Louise SINGLETON, Hosea Henry, Robert Henderson, Albert Babin and Rev. James Thomas.
    No. 12906.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 1979.

      Murphy W. Bell, Baton Rouge, of counsel for plaintiff-appellee, Macedonia Baptist Foundation.
    Ralph L. Roy, Baton Rouge, of counsel, for defendants-appellants, Louise Singleton, Hosea Henry, Robert Henderson, Albert Babin, and Rev. James Thomas.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Appellee, The Macedonia Baptist Foundation, moves to dismiss asserting the appeal is frivolous, it was not timely perfected, and the question presented was previously decided by this court.

The remedy for frivolous appeal is not dismissal but affirmance of the judgment when the appeal is heard and found to be without merit. Diecidue v. Kilpatrick, 86 So.2d 757 (La.App.Orl.Cir.1956). Adequate sanction against the taking of a frivolous appeal is provided for by C.C.P. art. 2164.

This case was heard on the merits September 6, 1977. At the conclusion of the trial oral reasons were given by the trial judge and judgment was rendered. The oral reasons were transcribed and on March 5, 1979, were filed in the record. Appellee then submitted to the court a written judgment which was signed on March 15, 1979. The order granting a de-volutive appeal was entered on March 22, 1979. The appeal is timely. C.C.P. art. 2087. It is unexplained why neither appellants nor appellee sought to expedite formal judgment prior to March, 1979.

This suit was brought by the record owner of certain immovable property bearing the designation of 1251 Spain Street in the city of Baton Rouge. It was formerly utilized as a church. Appellee sought and was granted a permanent injunction enjoining appellants from entering, occupying and holding meetings in the structure and from soliciting funds and contributions in the name of Macedonia Missionary Baptist Church. It is the position of appellee that appellants were, as a matter of church discipline, properly expelled from membership in the Macedonia Missionary Baptist Church and have no right to engage in the activities enjoined.

This is a contest involving the right to use or possess property. Such was not the issue in the prior litigation in which some of the present appellants were parties. In Henry v. Newman, 351 So.2d 1277 (La.App. 1st Cir. 1977), this court stated that there were no property rights in dispute. The issue then presented was whether a civil court has jurisdiction to review an ecclesiastical decision of a church body. We noted that the question of where church services are to be held is purely an ecclesiastical decision not subject to review by civil courts.

The pivotal fact in Henry v. Newman, supra, was the re-location of the Macedonia Missionary Baptist Church from 1251 Spain Street, Baton Rouge, to the 2800 block of Wyandotte Street, Baton Rouge. The plaintiffs in Henry sought an injunction complaining that the change of location was being made without compliance with the Church’s rules, regulations and Articles of Incorporation. Here, in opposition to appel-lee, these same persons (now joined by two other individuals) as defendants claim to be entitled to the use or possession of the property located at 1251 Spain Street, Baton Rouge.

We find no merit in Mover’s contention that the question now presented was previously decided by this court.

MOTION DENIED.


text:
    The MACEDONIA BAPTIST FOUNDATION v. Louise SINGLETON, Hosea Henry, Robert Henderson, Albert Babin and Rev. James Thomas.
    No. 12906.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 12, 1979.
    Murphy W. Bell, Baton Rouge, of counsel, for plaintiff-appellee, Macedonia Baptist Foundation.
    Ralph L. Roy, Baton Rouge, of counsel, for defendants-appellants, Louise Singleton, Hosea Henry, Robert Henderson, Albert Babin, and Rev. James Thomas.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Appellee, The Macedonia Baptist Foundation, is the record owner of property formerly utilized as a church and designated as 1251 Spain Street in the city of Baton Rouge. The issue is whether appellants, as alleged members and deacons of the Macedonia Missionary Baptist Church, Incorporated, were properly enjoined from entering, occupying and holding meetings in the structure and from soliciting funds and contributions in the name of the Church. The Macedonia Missionary Baptist Church, Incorporated, is the ecclesiastical body which vested title to the property in Appellee so that the secular affairs of the membership could be managed apart from matters pertaining to religious doctrine and practice. It is the position of Appellee that Appellants were, as a matter of church discipline, properly expelled from membership in the Macedonia Missionary Baptist Church and have no right to engage in the activities enjoined.

In a related case this court was presented with the issue of whether a civil court has jurisdiction to review the decision of a church body regarding the location of the site where church services are to be conducted. We held that the choice of a site where church services are to be conducted is an ecclesiastical decision not subject to review by civil courts. See Henry v. Newman, 351 So.2d 1277 (La.App. 1st Cir. 1977).

We now hold that the validity of Appellants’ excommunication or expulsion from church membership is likewise a matter of ecclesiastical concern over which this civil court has no jurisdiction. Appellants’ contention that they have a right to engage in the activities enjoined is based upon their claim to membership in the Church. Since we are without jurisdiction to determine their membership status, and the ecclesiastical decision that Appellants are no longer members of the church has been made, Appellants are without proprietary rights to use church property or use the church name to solicit funds. Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).

Appellants argue that since the Macedonia Missionary Baptist Church is a nonprofit corporation they could not be expelled by the Church without full compliance with the corporation statutes. This argument was answered in Henry, supra, at p. 1279:

Further, church members are not entitled to rely on the incorporation of a church under state laws as the basis for resort to the courts for redress of allegedly violated rights, if these rights require a determination of ecclesiastical matters.

And, in Serbian, supra, at 709, 96 S.Ct. at 2380-2381, the court quoted with approval from its 1969 decision of Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658, as follows:

First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. . [T]he [First] Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are to be paid by Appellants.

AFFIRMED.


author: DOUCET, Judge.

text:
    Curries BENOIT, Plaintiff-Appellant, v. Mrs. Amilda Guilbeau BENOIT, Defendant-Appellee.
    No. 7231.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1979.

      Peter C. Piccione, Lafayette, for plaintiff-appellant.
    Arthur D. Mouton, Lafayette, for defendant-appellee.
    Before CUTRER, STOKER and DOU-CET, JJ.
   DOUCET, Judge.

Plaintiff brought this suit against his mother, seeking the termination of a usu-fruct held by her pursuant to LSA-C.C. art. 916. He alleged as grounds for terminating the usufruct that defendant had been living in open concubinage with another man since shortly after plaintiff’s father’s death in 1973. Defendant entered a peremptory exception of no cause of action. From a judgment sustaining that exception and dismissing his suit, plaintiff appeals. We affirm.

Since we accept plaintiff’s factual allegations as true for the purposes of this appeal, the only issue before us is whether a usu-fruct created by operation of LSA-C.C. art. 916 can be terminated because the surviving spouse is living in open concubinage.

Plaintiff argues that cohabitation is tantamount to remarriage, which is a ground for terminating the usufruct under LSA-C.C. art. 916, which provides in pertinent part: “This usufruct shall cease, however, whenever the survivor shall enter into a second marriage.” That contention is based on plaintiff’s view of the legislative intent behind that article.

A court is free to consider the spirit of the law only “when its expressions are dubious”. LSA-C.C. art. 18; Nash v. Whitten, 326 So.2d 856 (La.1976). That is not the case, here. In clear and unambiguous terms, Article 916 provides that the usufruct shall terminate if the surviving spouse enters into a second marriage. The language used leaves no doubt about what the grounds for terminating the usufruct are. This point was settled long ago by the Louisiana Supreme Court in Succession of Viaud, 11 La.Ann. 297 (1856), wherein the court said:

“. . . And the fact that the defendant has been guilty of living with a concubine, however reprehensible it may be, has not been declared by the Legislature to be a ground for arresting the usufruct created by the Act of March 25, 1844.”

For these reasons, the judgment appealed is affirmed. All costs of this appeal are taxed to the plaintiff-appellant.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Elden BRUNET, Plaintiff-Appellant, v. EVANGELINE PARISH BOARD OF SUPERVISORS OF ELECTIONS et al., Defendants-Appellees.
    No. 7598.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 30, 1979.

      Soileau & LeJeune, Donald Soileau and Raymond J. LeJeune, Mamou, for plaintiff-appellant.
    Young & Burson, J. Nilas Young, Eunice, for defendants-appellees.
    Before CULPEPPER, YELVERTON and WARE, JJ.
   CULPEPPER, Judge.

This is an election contest. Plaintiff, El-den Brunet, and defendant, Johnny Chapman, were candidates for the office of Evangeline Parish Police Juror, District 7 in the October 27, 1979, primary election. Both the unofficial and official results showed the defendant, Johnny Chapman, receiving 612 votes and plaintiff, Elden Brunet, receiving 610 votes.

On October 31, 1979, plaintiff filed a petition in the Thirteenth Judicial District contesting the election and seeking a recount of the absentee ballots. Plaintiff alleged in his petition, that except for irregularities or fraud in the voting, he would have been elected to the office.

In response to plaintiff’s suit contesting the election and seeking a recount of absentee ballots, defendant filed exceptions of no cause of action. The trial judge sustained the exceptions, dismissing plaintiff’s suit.

Plaintiff perfected an appeal to this court seeking reversal of the trial judge’s ruling. This court, finding that plaintiff’s petition stated a cause of action, reversed the trial court’s ruling and remanded the case to the district court for further consideration. Brunet v. Chapman, Docket No. 7559. Defendant’s application for writs of review to the Supreme Court were denied. Brunet v. Chapman, Docket No. 66,098.

On remand, the trial court ordered the production of the absentee ballots for recounting and set trial on the merits for November 19, 1979. Although votes for the contested office were cast in three different precincts, plaintiff contests only the votes cast in Ward Three, Precinct Three. The recount showed that fifty absentee ballots were cast in Ward Three, Precinct Three. The Commissioners voided four of these ballots. The remaining 46 ballots, in which plaintiff received 13 votes and defendant received 33 votes, were held valid by the Commissioners.

At the trial, plaintiff contended that two ballots east for him and voided by the Commissioners should have been counted. Plaintiff also alleged that four ballots cast for Chapman should have been voided because they contained distinguishing marks.

The trial judge sustained the Commissioners’ action voiding four ballots. The Court, examining the four ballots objected to by the plaintiff, held that the Commissioners had properly voided these ballots. The recount left the official result unchanged.

Plaintiff also alleged that the election should be annulled because a voting machine malfunctioned and because of irregularities which appeared in the voting tabulation.

The trial judge, finding that plaintiff failed to prove his allegations by a preponderance of the evidence, dismissed plaintiff’s action. From this judgment, plaintiff has perfected this appeal.

Plaintiff-appellant makes the following assignments of error:

1. The Court erred in refusing to sustain Brunet’s motion that the absentee ballots be discarded in that they had been tampered with in violation of a Temporary Restraining Order issued by the Trial Court.

2. The Court erred in its failure to find that the four (4) or five (5) vote difference between the machine vote and the records kept by the Commissioners was the result of fraud and/or irregularities.

3. The Court erred in its failure to find that there was a voting machine malfunction sufficient to change the outcome of the election.

4. The Court erred in its failure to declare the two (2) spoiled ballots which were cast for Brunet to be valid votes for Brunet.

5. The Court erred in its failure to spoil the four (4) ballots numbered 17, 27, 31, and 41, in that they had clear identifying marks, especially if the two (2) ballots in (4.) above were spoiled.

Plaintiff contends that all absentee ballots cast in Ward Three, Precinct Three should have been voided because the Clerk of Court for the Thirteenth Judicial District opened the ballots in violation of the restraining order issued by the Thirteenth Judicial District Court. In the original suit, a temporary restraining order had been issued by the district judge prohibiting the promulgation of the election results. Apparently before the restraining order was removed, Walter Lee, Clerk of Court for the Thirteenth Judicial District, recounted the absentee ballots pursuant to an order issued by the Nineteenth Judicial District Court. The order directed Mr. Lee to recount the absentee votes which were cast in the gubernatorial election.

Mr. Lee acted properly in obeying the court order. The recount was required as a result of an election suit filed in the Nineteenth Judicial District contesting the gubernatorial election. That court had authority to require a recount of the gubernatorial votes. Plaintiff’s contention that the absentee ballots cast in Ward 3, Precinct 3 should be voided because the Clerk of Court, Mr. Lee, recounted the votes is without merit.

However, even assuming that the Clerk’s action was a violation of the restraining order issued by the Thirteenth Judicial District, this irregularity does not annul the election. In Champagne v. Ackal, 256 So.2d 483 (La.App. 3rd Cir., 1972) this court, quoting with approval from Womack v. Nettles, 155 La. 359, 99 So. 290 (1924) stated:

“It is a principle underlying all law and jurisprudence in matters of election by the people that an election will not be set aside for mere irregularities and illegalities, nor for negligence and improper conduct of the election officers, unless it is shown that a sufficient number of voters were deprived of their votes to have changed the result.
Nor will an election be set aside, notwithstanding the misconduct of election officers, where the voters have had free and fair opportunity to express their will and have done so in a legal manner.” (Citations omitted)

In the instant action, we conclude that the Clerk’s action in recounting the absentee ballots in connection with another election suit was not such an irregularity as to void the absentee ballots case in Ward Three, Precinct Three. To hold otherwise would have the effect of preventing a free and honest expression of the will of the voters.

Plaintiff contends that the trial court erred in not voiding the election because of a five vote discrepancy which existed between the voting machine tabulation and the votes as recorded on the Commissioners’ poll lists.

It is undisputed that the machine tabulation exceeded by five votes the total number of votes as indicated on the Commissioners’ poll lists. Plaintiff contends that the Commissioners allowed five unqualified voters to vote in the election.

Mr. Hampton Fuselier, the Commissioner-in-charge on October 27, 1979, at Ward Three, Precinct 3, testified that the commissioners checked the totals on the poll list against the total on the machines a number of times during the day. In the morning, a discrepancy of two was discovered. Mr. Fuselier testified that after checking the two poll lists against one another, it was found that two names had been omitted from one of the poll lists. This discrepancy was corrected.

Mr. Hampton Fuselier further testified that late in the afternoon prior to the closing of the polls a further check between the poll lists and the machine total showed a difference of four (4) votes which the Commissioners were unable to account for.

Mr. Fuselier testified that at times voting was heavy and in some instances, voters entered the voting line prior to signing the precinct register and poll lists. On these occasions, the voter was made to sign the register and his name was entered on the poll lists. However, Mr. Fuselier stated that there could have been instances where the error was not detected and thereby corrected. Mr. Fuselier stated that to his knowledge no illegal votes were cast at the precinct.

Mr. Floyd Aucoin, a Deputy Commissioner, testified that he remembered the morning count between the poll register and the machine tabulation showed a difference of two (2) votes which the Commissioners were unable to account for. His testimony did agree with Mr. Fuselier that prior to the closing of the polls a difference of four (4) votes was noted.

This testimony supports the trial court’s conclusion that the discrepancy was the result of human errors and not the result of fraudulent conduct on the part of the Commissioners.

We also note that the discrepancy complained of consists of four (4) votes out of a total of 1,290 votes cast in the three precincts voting for District 7 Police Jury. Although LSA-R.S. 18:1432 now provides the grounds for declaring an election void, the Supreme Court in Kelly v. Village of Greenwood, 363 So.2d 887 (1978), notes that the present statutory scheme is in accord with pre-election code jurisprudence on the issue. In Moreau v. Tonry, 339 So.2d 3 (La., 1976), the court, discussing the grounds for upsetting an election, stated:

“The statutory rule in Louisiana is that an election may be upset only if the one contesting the election can show that ‘but for irregularities or fraud he would have been nominated’.”

The court went on to add:

“If the candidate cannot prove he would have been elected ‘but for irregularities or fraud’, our jurisprudence refers to an alternative: if the Court finds the proven frauds and irregularities are of such a serious nature that the voters have been deprived of the free expression of their will, the election will be nullified.”

In the instant action, plaintiff submitted no proof as to which candidate received these four (4) votes allegedly cast by unqualified voters. In the absence of such proof, plaintiff has failed to prove that “but for” the irregularities he would have been elected.

Plaintiff also introduced testimony attempting to prove that voters had been prevented from voting for him because of a machine malfunction.

Calvin Aguillard, an employee of the Custodian of Voting Machines, testified that he received a call from one of the commissioners at Ward 3, Precinct 3, in which he was informed that there was a problem with one of the machines at the precinct. Mr. Aguil-lard testified that he arrived at the precinct at approximately 4:30 p. m., and along with two commissioners, broke the seal on the machine and discovered the problem. Mr. Aguillard testified that machine 2538, or the “middle” machine had jammed. Mr. Aguillard was of the opinion that the jam in the machine had occurred when a voter entered the machine, failed to vote for a single candidate and had then attempted to pull the master lever and record the votes. Mr. Aguillard testified that the machine was simply jammed and that he corrected the problem.

The trial judge found that although there was one minor incident of malfunction, no voter was prevented from casting his vote. An examination of the record does not reveal that this factual finding is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

Plaintiff presented several witnesses in support of his contention that a machine malfunctioned. Mr. Berzas testified that he attempted to vote for Mr. Brunet, but that he was unable to cast his vote for Mr. Brunet, because Key # 117 would not depress.

Mrs. Aymond testified that she voted for Mr. Brunet, but that it took her several attempts to depress Key # 117, the key number for Mr. Brunet. Clayton McGee testifies that he had to depress Key # 117 several times before it would register his vote for Mr. Brunet.

Mr. Fuselier, the Commissioner-in-charge, testified that he received complaints from a party, not a voter, that the keys on the middle voting machine were not working properly. Mr. Fuselier had the complaint investigated but found the machine in proper working order.

The record reveals that only Mr. Berzas testified that he was prevented from voting for Mr. Brunet. The trial judge, finding that no voter was prevented from casting his vote, apparently rejected the testimony of Mr. Berzas. We note that Mr. Berzas’ testimony was not completely credible. An examination of the record does not reveal that the trial judge was clearly wrong in rejecting Mr. Berzas’ testimony.

Since no voter was prevented from voting, plaintiff has failed to prove that but for the irregularities, i. e. machine malfunction, he would have been elected. Plaintiff’s contention that the trial court erred in refusing to annul the election is without merit.

Appellant urges, as his next allegation of error, the trial court’s invalidating two (2) ballots which were cast for Mr. Brunet. The trial court invalidated these two votes because erasures appeared in the votes for other offices on the ballot. Specifically, these two erasures appeared in boxes for candidates for the office of Treasurer and Commissioner of Agriculture. An examination of these ballots indicates that these ballots were clearly marked for Mr. Brunet and no erasures were present in the boxes for the office of Police Juror.

In Angelle v. Angelle, 204 So.2d 581 (La. App. 3rd Cir., 1967), we considered a similar situation. In Angelle we determined that erasures which were evident in boxes other than in the disputed race were not such a distinguishing feature which could be reasonably assumed to have been intended by the voter as an identifiable mark. In Herbert v. Landry, 193 So. 406 (La.App. 1st Cir., 1940), the court said:

“It is our own idea that the mark or erasure must be one that may be said to be personal to the particular individual who make it and placed on his ballot in accordance with an understanding made with some party who intended to destroy the secrecy of that ballot for the purpose of unduly influencing him in the election. The erasure on the ballot in this case is not such a mark, as what happened to the voter, who evidently made a mistake in the party he voted for and then corrected his mistake, is something which might well have happened to several other voters, and it would be impossible to tell from such erasure which was the particular ballot used by any one of them.”

The erasures in our present ease, as in Hebert v. Landry, supra, merely indicate an honest effort on the part of these voters to indicate their correct choices for office after making errors.

These erasures do not appear to have been placed on the ballot as an identifying mark for the purpose of destroying the secrecy of these ballots. We note that in oral argument counsel for the plaintiff points out that the Commissioners and the trial court held ballot number 44 to be valid and that ballot contains erasures in the office of Justice of the Peace and Treasurer which makes the Commissioners and trial court’s ruling with regard to the erasures on the two (2) ballots for Brunet inconsistent. Therefore, these two (2) votes should be counted. Thus, at these two (2) votes were cast for the appellant, the trial court erred in declaring them spoiled and Mr. Brunet is entitled to receive two additional votes.

The final allegation of error concerns the failure of the trial court to declare four (4) ballots, which were numbered 17, 27, 31, and 41, to be invalid. Each of these four ballots, which the appellant sought to have invalidated, indicated a vote for Mr. Chapman.

The trial court relied on Perez v. Cogne-vich, infra, in determining that the four (4) ballots were valid and should be counted for Mr. Chapman. In his written reasons for judgment the trial court stated:

“After a thorough inspection and examination of these four (4) ballots the court ruled them to be valid. The court considered these small dots, and the irregularly shaped “X” to be insignificant and not affecting the secrecy or sanctity of the ballots. Furthermore, it is impossible to determine who made them, or how or when they were placed thereon. Perez v. Cognevieh, 156 La. 331, 100 So. 444.”

We agree with the decision of the trial court that the small dots on the three (3) ballots and the irregular “X” on the fourth were insignificant and did not affect the sanctity of the ballots. In McGee v. Fuselier, 330 So.2d 383 (La.App. 3rd Cir., 1976), we cited Courtney v. Abels, 205 La. 559, 17 So.2d 824 (1944) for the following proposition:

“A distinguishing mark prohibited by the law is such a mark as will separate and distinguish the particular ballot from other ballots cast at the election. It is some sort of mark put on a ballot to indicate who cast it, and to furnish means of evading the law as to secrecy. Therefore, not every mark made by a voter on his ballot which may separate and distinguish the particular ballot from other ballots cast at the election will necessarily result in a declaration of invalidity. If it appears from the face of the ballot that the marks or writing were placed thereon as the result of an honest effort on the part of the voter to indicate his choice of a candidate among those to be voted for at the election and that the voter did not thereby pretend or attempt to indicate who voted the ballot, the ballot should not be rejected as to candidates for whom there is a choice expressed, in compliance with the requirements of the statutes.”

It would be highly unfair and unduly technical to disenfranchise these voters by declaring these ballots spoiled due to these minute dots.

As a result of our decision regarding the erasures, which require Mr. Brunet to receive two additional votes, we declare the final tabulation to be 612 for Mr. Brunet and 612 for Mr. Chapman.

Due to the tie vote we can declare neither candidate elected and must order another election between these two candidates only.

For the above and foregoing reasons the judgment appealed is reversed and set aside. We hereby order the Board of Election Commissioners to call another election for the office of Police Juror, District Seven, Evangeline Parish to be participated in by all qualified voters of the district, as soon as reasonably possible. All costs of the trial and of this appeal are to be borne equally by the appellant and appellees.

      . Actually 51 absentee votes were cast, but one absentee vote was by a voter deceased at the time of the election and the record reveals that the Commissioners cast this ballot aside without counting it and it is not in the record. We note also, all parties agree that this ballot was properly disregarded under LSA-R.S. 18:1316.

      . Two additional ballots were declared spoiled by the trial judge. That these two ballots were properly declared spoiled, one (spoiled ballot # 3) because a voter had not placed an x in the box but rather Chapman’s Number 118 and the other (spoiled ballot # 4) because the vote was cast for a candidate that had previously withdrawn, is not contested by any of the parties.


text:
    James Henry WILLIAMS, Plaintiff-Appellant, v. Harry FRIEDMAN, Jr., Defendant-Appellant.
    No. 7298.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.
    Writ Refused March 21, 1980.

      Gahagan & Gahagan, H. C. Gahagan, Natchitoches, for defendant-appellant-ap-pellee.
    Watson, Murchison, Crews, Arthur & Corkern, Daniel T. Murchison, J. H. Williams and John G. Williams, Natchitoches, for plaintiff-appellee-appellant.
    . Before CULPEPPER, GUIDRY and YELVERTON, Judges.
   CULPEPPER, Judge.

This is the second suit filed by James Henry Williams against Harry Friedman, Jr. to rescind the sale of a herd of cattle. In the previous suit, Williams v. Friedman, 346 So.2d 265 (La.App. 3rd Cir. 1977), which was a companion suit to First National Bank of Shreveport v. Williams, 346 So.2d 257 (La.App. 3rd Cir. 1977), Williams sought to avoid the sale principally on the grounds of his mental incapacity. We affirmed the judgment of the trial court in favor of Friedman upholding the sale.

In the present case, Williams seeks to avoid the sale on the grounds of redhibitory vices, i. e., that 53% of the herd had brucel-losis at the time of the sale. In the alternative Williams seeks a reduction in the purchase price. Defendant Friedman filed a reconventional demand for expenses incurred in the maintenance of the herd for approximately 21 months between the date of the sale and the time of final delivery of the cattle to Williams. In answer to Friedman’s reconventional demand, Williams pleaded a set-off for the value of cattle which died while in Friedman’s possession. The district judge rejected Williams’ demand to rescind the sale. He awarded Friedman $68,034 on his reconventional demand, subject to a set-off in favor of Williams in the sum of $27,410. Both plaintiff and defendant appealed.

The substantial issues are whether the trial judge erred in: (1) rejecting Williams’ demand to rescind the sale for redhibitory vices, both on the grounds that the redhibi-tory action was prescribed under LSA-C.C. Article 2535 and on the basis that Williams failed to prove the herd was infected with brucellosis at the time of the sale; (2) in awarding Friedman $68,034 on his recon-ventional demand; and (3) in granting Williams a set-off of $27,410.

In detailed written reasons, the trial judge gave his findings of fact, which we will briefly summarize. On January 8, 1975, Friedman sold to Williams a herd of cattle consisting of 590 cows, 129 calves, 225 yearlings and 34 bulls, a total herd of 978. The total price for the cattle was $185,000. At the same time, Friedman sold to Williams certain cattle farm equipment. The total consideration for the cattle and equipment was $243,000, for which amount Williams gave Friedman a promissory note. The cattle and equipment were already subject to a chattel mortgage from Friedman to the First National Bank of Shreveport. Friedman pledged to the bank the promissory note made by Williams.

As part of the same transaction, Friedman leased to Williams approximately 1,600 acres of land on which the cattle were located. Certain cowboys who had been employed by Friedman to maintain the herd were placed on Williams’ payroll and continued to work the cattle.

On January 16, 1975, Williams was committed to a hospital for a mental condition diagnosed as manic-depression. He was discharged from the hospital on February 22, 1975. On March 12, 1975, Williams advised Friedman that he was canceling the sale and that possession of the cattle was returned to Friedman. By letter dated March 18, 1975, Friedman made formal demand on Williams to recognize the sale and to.continue to care for the cattle. Friedman stated in the letter that in the event Williams did not care for the animals, Friedman would “provide minimal requirements” in order to prevent foreclosure of the chattel mortgage and to minimize damages. Friedman also informed Williams that the farm equipment sold to Williams would be used by Friedman in the care and feeding of the animals. Williams refused to recognize the sale or to care for the cattle. In April of 1975, the lease was canceled by mutual agreement.

Friedman retained possession of the herd until, by agreement of the parties, Williams took possession on September 29, 1976 and November 2, 1976. All during the time of Friedman’s possession, the previous lawsuit was in progress. During Friedman’s possession, a total of 255 calves from the herd were sold by agreement of the parties, and the proceeds were applied by agreement to the payment of the note owed by Friedman to the First National Bank.

When Williams took possession of the herd on September 29, and on November 2, 1976, he received 454 cows instead of the 590 originally sold, making a shortage of 136 cows. He received only 25 bulls, instead of the 34 originally purchased,- thus making a shortage of 9 bulls. Also, he received 235 calves.

Immediately on receiving final possession on November 2, 1976, Williams sold through auction barns all of the cattle received by him. Tests run on the cattle at the auction barns showed that 218 cows and 1 bull had brucellosis. Thus, approximately 45% of the cows and bulls sold had this disease. There is no evidence that any of the cattle had previously been tested for brucellosis.

RESCISSION OF THE SALE

Williams seeks to rescind the January 8, 1975 sale of the herd on the grounds that he purchased the cattle for breeding purposes, and had he known of the shortage of grown cows, or had he known that a large percentage of the herd was infected with brucellosis, he would not have purchased the cattle. Williams argues that Friedman warranted the sale of the 590 grown cows in good condition, and that Williams finally received only 454 cows, a large percentage of which had brucellosis, a disease which renders a herd unsuitable for breeding.

The applicable Civil Code Articles on red-hibition are as follows:

“Art. 2520. Redhibition, definition
“Art. 2520. Redhibition is the avoidance of sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.
“Art. 2521. Apparent defects discoverable by buyer
“Art. 2521. Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

Jurisprudence has established the rule that under Article 2520 the buyer must prove that the defect existed at the time of the purchase. Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir. 1976); Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133 (La.App. 3rd Cir. 1979); Cutrer v. Kentwood Motors, Inc., 351 So.2d 817 (La.App. 1st Cir. 1977). In this case, Williams purchased the cattle and took possession in January of 1975. He had the burden of proving the cattle had brucellosis at that time. The cattle were not tested for brucellosis until approximately 21 months later. The expert veterinarians who testified expressed the opinion that the positive brucellosis tests in November of 1976 could not with any degree of probability show that the animals in the herd had brucellosis 21 months prior thereto. On this basis, the trial judge held the plaintiff failed to prove the cattle had brucellosis at the time of the sale. The record clearly supports this finding.

On the issue of prescription, the Civil Code provides:

“Art. 2535. Prescription of redhibitory action for animals
“Art. 2535. The redhibition of animals can only be sued for within two months immediately following the sale.”

Friedman contends this redhibitory action is prescribed because it was not filed until November 26, 1976, which was approxi-' mately 22 months after Williams purchased the cattle and first took possession in January of 1975. In opposition to the exception of prescription, Williams argues the jurisprudential rule that prescription does not begin until the buyer knew or should have known of the defect. Smith v. Smith, 29 So.2d 608 (La.App. 1st Cir. 1947).

The trial judge sustained the exception of prescription. We find it unnecessary to rule on this issue because, even if the claim had not prescribed, plaintiff failed, for the reasons stated above, to prove the cattle had brucellosis at the time of the sale.

FRIEDMAN’S RECONVENTIONAL DEMAND FOR MAINTENANCE EXPENSES

The following articles of our Civil Code are applicable to Friedman’s reconven-tional demand for reimbursement of expenses of caring for the cattle during the approximately 21-month period before Williams took possession:

“Art. 2468. Seller’s duty of care pending delivery
“Art. 2468. Until the thing sold is delivered to the buyer, the seller is obliged to guard it as a faithful administrator; and if, through want of this care, the thing is destroyed, or its value diminished, the seller is responsible for the loss.
“Art. 2469. Buyer’s delay in taking possession, effect on seller’s liability
“Art. 2469. The seller is released from this degree of care, when the buyer delays obtaining the possession; but he is still liable for any injury which the thing sold may sustain, through gross neglect on his part.
“Art. 2555. Liability of buyer failing to obtain delivery after default
“Art. 2555. The purchaser, who neglects to obtain delivery of the thing sold, after having been put in default, is answerable to the vendor for the damage which he may sustain on that account, and for the reimbursement of the expense which may have been incurred for the preservation of the thing.”

Friedman claims reimbursement of a total of $112,215 for expenses incurred in caring for the cattle. He itemizes these expenses as follows:

A. Loss of use of land $30,121.00
B. Cash expenses 52,094.00
C. Management services 30,000.00
$112,215.00

In detailed written reasons, the trial judge first recognized that in the prior suit Friedman was awarded reimbursement in the sum of $26,868 for those expenses incurred during the 9-month period from January, 1975 to September 30, 1975. The trial judge then found as a fact that Friedman is entitled to additional reimbursement as follows: For loss of use of 1,575 acres of land, the trial judge awarded $10 per acre for a period of 10 months or a total of $15,750. The judge rejected Williams’ contention that Friedman is not entitled to any award for loss of use of the land because of a verbal understanding at the time the lease was canceled in April of 1975. Williams argues the cancellation of the lease settled any claim for loss of use of the land.

As to Friedman’s cash expenses for labor, equipment expense, seed, feed, etc., the trial judge found from an examination of the books and records kept by Friedman that he was entitled to recover the sum of $46,284.

For management services, Friedman sought $4,000 for bookkeeping services, but the trial judge allowed only $1,000. Friedman sought the sum of $20,000 for his personal services in caring for the herd, but the district judge allowed only $5,000. Thus, the trial judge allowed Friedman total reimbursement of $68,034.

On appeal, Friedman emphasizes his claim for loss of use of the land should be $15.30 per acre for the period September 30, 1975 through December of 1976, a total of $30,121. Friedman also emphasizes that the full claim of $4,000 for bookkeeping services should have been awarded and that his claim of $20,000 for his personal services is clearly proved.

We have carefully reviewed the evidence and find the trial judge was not clearly wrong in his finding of fact as to the items of reimbursement to Friedman, totaling $68,034.

SET-OFF TO WILLIAMS

The most serious issue in this case is the trial court’s finding that Friedman’s failure to cull and sell the mama cows, which were too old or diséased to survive the hard winters, was “gross neglect” within the meaning of LSA — C.C. Article 2469, quoted above. The trial judge held that 126 cows died due to Friedman’s failure to cull. The judge accepted the testimony of employees who handled the herd that cattle management requires the culling and selling of old cows. No culling was done by Friedman. Although Friedman and Williams agreed several times to the sales of calves and yearlings, no request was ever made by Friedman to cull old cows and sell them. The trial judge concluded this constituted gross neglect. • After carefully reviewing the record, we cannot say the trial judge was clearly wrong in this finding of fact.

In computing the amount of the set-off due Williams, the trial judge used the evidence that under normal conditions the death loss in a herd is 2% to 3% per year. A 3% annual loss of 590 cows and 34 bulls over a period 18 months would be 29 cows and 2 bulls. The loss here was 126 cows and 9 bulls. Thus, the trial judge awarded Williams a set-off for 97 cows at $250 each and 7 bulls at a total of $3,160, for a total set-off of $27,410. We find no manifest error in these awards.

DECREE

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed one-half to the plaintiff and one-half to the defendant.

AFFIRMED.