text:
    Eula Simon JONES et al. v. RECREATION AND PARK COMMISSION OF the PARISH OF EAST BATON ROUGE et al.
    No. 13898.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 31, 1981.

      Patricia R. Smith, Baker, counsel for defendant-appellant, Recreation & Park Commission of the Parish of East Baton Rouge.
    Richard E. Burton, Baton Rouge, counsel for plaintiffs-appellees, Eula Simon Jones and Carl Jones.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented in this slip and fall case is whether or not appellant’s floor was unreasonably dangerous for its intended purpose. Because we agree with the trial court’s determination the floor was unreasonably dangerous, we affirm.

On October 23, 1977, Mrs. Eula Jones went to Webb Park golf course to play golf with a friend. (Webb Park is located in Baton Rouge and is owned by the Recreation and Park Commission, herein referred to as “BREC.”) Dressed in her steel-spiked golf shoes, she entered the “club house” in order to pay the green fee and the golf cart rental fee. After paying the fees she proceeded to cross the floor of the “pro shop,” entered the “lounge” and walked toward the ladies’ locker room. When she was several feet from the door of the ladies’ room she slipped and fell on the concrete floor. She broke her right leg as a result of the fall.

Testimony by various witnesses at trial indicated the entire floor of the Webb Park club house is made of concrete. Golfers must enter the building to pay the golf cart rental fees, the green fees, and to use the restrooms. H. J. Neese, the golf pro employed at the time of the accident, testified 99% of the golfers who play at Webb Park enter the building wearing their golf shoes. Another employee, Donald Harquist, testified he had slipped on the concrete floor, although he did not fall. Several employees of BREC testified they were unaware of any falls, other than Mrs. Jones, occurring at Webb Park. Employee, Irene Yessick, admitted it was necessary to be careful when walking on the concrete floors of the club house.

Catherine O’Neal, another golfing patron, testified she too had fallen at Webb Park while wearing golf shoes. Some ten years before Mrs. Jones’ accident, Mrs. O’Neal fell while inside the ladies’ locker room where the floor is also concrete. She testified various complaints were made to the management concerning the slippery floors. Rubber mats were subsequently installed inside the locker room.

An expert witness testified for both parties. Appellees’ expert was Mr. Stanley Day, a safety inspector with 39 years experience. He testified the kinetic coefficient of friction in the area where Mrs. Jones fell was .16. His tests showed the areas away from the ladies’ locker room, toward the pro shop, were less slippery, with a coefficient of .30. He stated he believed the condition of the floor to be hazardous and recommended carpeting or rubber mats be installed to alleviate the situation.

Appellant’s expert witness was Dr. Dale Carver, professor of Civil Engineering at L.S.U. Dr. Carver disputed Mr. Day’s technique of using the kinetic coefficient of friction and stated the only applicable standard was the static coefficient of friction. Dr. Carver’s tests showed the floor in the area of the accident to be less slippery than Mr. Day had determined, finding a static coefficient of friction of .25. He, too, found the floor in the pro shop to be less slippery than the floor near the locker room, finding the pro shop area to have a coefficient of .35. He stated the floor was not unreasonably dangerous but was simply a typical concrete floor.

The trial judge noted during presentation of the evidence he was not deciding the case based on statistics. We agree with the court’s comment and find the expert testimony to be of very limited use in that neither expert adequately explained the practical meaning of the coefficients of friction. Although there was much discussion about the difference between the static and the kinetic coefficients of friction, neither witness offered information as to what coefficient represented an unreasonably dangerous floor. Without more explanation, the bare statistics do not shed much light on the issue of the condition of the floor.

The owner of a business establishment must keep floors and passageways in a reasonably safe condition for use in a manner consistent with the purposes of the premises. Raines v. Travellers Insurance Company, 254 So.2d 659 (La.App. 4th Cir. 1971), writ granted, 1972, case dismissed 281 So.2d 694 (La.1972); Sims v. Gibson's of Denham Springs, Inc., 205 So.2d 824 (La. App. 1st Cir. 1967). The record indicates the sole purpose of the club house at Webb Park is to serve golfers. We agree with the trial court’s comment that it is unreasonable to require golfers to remove their shoes every time they enter the building. The proprietor, BREC, had a duty to see the floors were reasonably safe for golfers wearing spiked shoes. As the proprietor, BREC owed the duty of reasonable and ordinary care which includes the prior discovery of unreasonably dangerous conditions of the premises and a warning or correction thereof. Koder v. Phoenix Insurance Co., 241 So.2d 257 (La.App. 1st Cir. 1970).

Because the evidence indicates the floor was unusually slippery, especially in the area near the ladies’ locker room, we conclude BREC breached its duty to maintain the floor in a reasonably safe condition for its intended use. The testimony indicates a general awareness by BREC employees of the slippery condition. The problem could have been rectified easily by installation of rubber mats or carpeting. At the very least, warning signs should have been placed to alert patrons to particularly slick areas.

Many of the BREC employees called as witnesses at trial testified there had been no other accidents caused by the condition of the floor. Although this may be considered in a favorable light for defendants in determining the question of the condition of the premises, it is by no means conclusive. Magoni v. Wells, 154 So.2d 524 (La. App. 4th Cir. 1963). The testimony as a whole indicates most people realized the floor was slippery and proceeded to walk with caution. Mrs. Jones herself testified she was well aware of the hazards of walking in spiked shoes on the concrete floor and always took care when doing so.

Appellant also assigns as error the trial court’s failure to find contributory negligence on the part of Mrs. Jones. The trial judge correctly disposed of this contention and we adopt his reasons which we quote, as follows:

. BREC contends that the plaintiff was not careful and was in a hurry thereby causing her own injury. There were no eye witnesses, but the Court is satisfied that there is no evidence which would indicate Mrs. Jones was running or rushing toward the restroom. Through its pleadings and elicitation of testimony, BREC showed that Mrs. Jones had visited the premises many times and was very familiar with the condition of the floors and the necessity of exercising care while walking thereon. The suggestion is therefore made that the fact many others had traversed the same path without accident would indicate negligence on her part. The Court does not agree. The appellate courts have repeatedly held that the absence of other earlier accidents does not reflect contributory negligence on the part of injured plaintiffs. Magoni v. Wells, 154 So.2d 524 (La.App. 4th Cir. 1963). But, of more significance in this matter is that anyone using the restroom facilities would be required to remove their golf shoes before going into the building. The Court finds that the inconvenience of removing golf shoes on each and every instance of entry and exit from the building is an unreasonable requirement and, consequently, in the absence of activity on the part of the plaintiff which plainly could be calculated to bring about his or her own injury, contributory negligence under the circumstances is not well founded.”

No error was raised as to the $15,000.00 awarded for pain and suffering. Appellant contends the trial court erred in allowing damages for lost wages for a period in which Mrs. Jones should have returned to work. Testimony at trial showed Mrs. Jones was injured on October 23,1977. She was hospitalized for approximately five weeks after the accident. The long cast was replaced with a short cast which remained on her leg for approximately three more months. Mrs. Jones testified she was in great pain and virtually immobile until the long cast was removed. She attended physical therapy sessions but had some difficulty arranging transportation. She had great trouble walking with the short cast and complained of pain in her foot and ankle as of the date of trial (January 1980). She returned to work in August 1978, nine months after the accident or about six months after the cast was removed.

Considering Mrs. Jones’ age at the time of the accident (62), we find no manifest error in the trial court’s conclusion she was unable to work until August of 1978. Dr. Francis McMains, the orthopedic surgeon who attended Mrs. Jones, testified he would generally have thought she would have returned to work sooner, but considering her low threshold of pain and her age, her recovery was about what he would have expected. He stressed a broken tibia fracture was extremely painful and recovery varied a great deal from individual to individual.

Appellant argues the trial court erred in not assigning a dollar amount to the court costs owed by appellant. We agree La.R.S. 13:5112 requires the trial court to express the costs in a dollar amount but feel this error was harmless. We therefore amend the provisions of the judgment as they relate to court costs to read in their entirety, as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant, Recreation & Park Commission of the Parish of East Baton Rouge, be condemned to pay court costs in the amount of $1,304.19, this sum representing: clerk’s costs, $266.27; sheriff’s costs, $70.40; expert witness fees, $500.00; lay witness expenses, $65.92; and stenographer’s fee, $401.60.”

In all other respects the judgment of the trial court is affirmed.

For the foregoing reasons, the judgment of the trial court is amended in part and affirmed in part. Costs on appeal, in the amount of $25.00, are assessed against appellant.

AMENDED IN PART AND AFFIRMED.

      . The lower leg consists of two bones: the fibula, which is the outer, smaller bone, and the tibia, which is the inner, larger bone. Both bones were fractured as a result of the fall.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    TRAVELERS INSURANCE COMPANY, Plaintiff-Appellee, v. PARAMOUNT DRILLING CO., INC., et al., Defendants-Appellants.
    No. 14414.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.

      Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendant-appellant, Paramount Drilling Co., Inc.
    Theus, Grisham, Davis & Leigh, by Brian E. Crawford, Monroe, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Defendant, Paramount Drilling Company, Inc., appeals from a judgment of the district court ordering it to pay as contribution one-half of workmen’s compensation benefits paid and to be paid by plaintiff, Travelers Insurance Company, insurer of Duggan Machine Company, to the widow of an employee of Duggan who was killed while doing welding work at the location of a well being drilled by Paramount. We affirm.

The trial court found that the welder was a general or regular employee of Duggan and a special or borrowed employee of Paramount. The court held that the lending and borrowing employers should share the compensation burden equally.

On appeal, Paramount contends that the welder was not its borrowed employee. Paramount argues that because a principal-contractor relationship existed between it and Duggan, it was a “statutory employer” under LSA-R.S. 23:1061, and under the last paragraph of that section would be entitled to indemnity against Duggan for any compensation it might pay to the employee or his survivors. It is argued that since Paramount would be entitled to indemnification from Duggan for compensation paid by Paramount, it cannot be cast for contribution in favor of Duggan’s insurer for compensation paid by it.

Despite scholarly discussions of what used to be the law or should be the law, it is firmly established that a lending employer and a borrowing employer are liable in soli-do for workmen’s compensation benefits, regardless of whether the lending employer is engaged in the business of lending employees or is only a casual lender. As soli-dary obligors, each employer is entitled to contribution equal to one-half of the obligation from the other employer. Maryland Casualty Co. v. Liberty Mutual Ins. Co., 254 La. 489, 224 So.2d 465 (1969); Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958); Lambert v. James A. Teague Rental Equipment, Inc., 278 So.2d 544 (La.App. 1st Cir. 1973), writ denied 281 So.2d 750 (1973); LSA-C.C. Arts. 2103, 2104.

In the Maryland Casualty Company case, the Supreme Court stated the issue as follows:

“The principal issue, however, relates to whether contribution is due between a special employer and a general employer which are solidarily liable to an employee for injuries occurring during special employment. Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958), concluded that such an employee may recover from either or both employers, and that they are solidary obligors as to him. Nevertheless, we are not here concerned with the relationship of the employee to the employers, but rather with the allocation of the ultimate loss as between the employers which were by law solidarily liable for the debt.”

Resting its holding on the positive and unambiguous provisions of LSA-C.C. Arts. 2103 and 2104 regulating the relationship of solidary obligors among themselves, and rejecting arguments urging the applicability of LSA-C.C. Art. 2106 and public policy or equity theories under workmen’s compensation law, the court held:

“Neither the general employer nor the special employer may claim indemnification or security from the other. They are solidary obligors as contemplated by Articles 2103 and 2104, and the plaintiff insurer, having paid the whole debt, may claim from the defendant insurer contribution of one-half of that amount.”

In Malone & Johnson, Workers’ Compensation Law and Practice (2d ed. 1980) § 58, 13 Louisiana Civil Law Treatise, the authors discuss the compensation law policy considerations mentioned and rejected in Maryland Casualty Company, but then conclude:

“Be that as it may, the current jurisprudential position has been to choose the simpler solution of having the lending and borrowing employer share the compensation burden equally, regardless of whether the lending employer is in the business of lending employees or not. This solution is not without its advantages. The primary advantage is that it eliminates the necessity of determining which lenders should be treated as vocational lenders and which as casual lenders. It also avoids the possibly dubious assumption that the vocational lender passes along the cost of his insurance premium to the borrower, which presumably the casual lender does not do. Further, if it is assumed that claims for contribution or indemnity are most often raised between insurers, it is difficult to see how any single insurer will be adversely affected over the long run, since most insurers offer coverage to both lenders and borrowers. The present jurisprudential resolution of the issue thus at least offers simplicity and uniformity.”

The indemnity provision of LSA-R.S. 23:1061 does not come into play or apply to cases where the solidary compensation liability of the two obligors, one a general employer and one a special employer, is based on an employer-employee relationship between each employer and the injured worker. It applies to cases where the solidary compensation liability of the two obligors is based on the principal-contractor-employee relationship outlined in Section 1061. Jones v. Southern Tupelo Lumber Company, 257 La. 869, 244 So.2d 815 (1971). Malone & Johnson, Workers’ Compensation Law and Practice (2d ed. 1980) §§ 121 et seq., 13 Louisiana Civil Law Treatise.

In Jones, the Supreme Court held:

“The courts below correctly cast all of the defendants solidarily, for when an employee is entitled to compensation and under R.S. 23:1061 or R.S. 23:1063 has sued the principal or the principal contractor together with the contractor or subcontractor, the liability of such defendants is solidary. The purpose of these statutes is to expand financial responsibility and to prevent the evasion of the workmen’s compensation law by the principal’s or the principal contractor’s interposing between himself and the employee an impecunious contractor or subcontractor. Under these statutes the claimant is entitled to proceed against the principal (or principal contractor) or the contractor (or subcontractor) or both as he chooses. The indemnification clauses, however, have the effect of finally imposing the loss of the principal or principal contractor upon the claimant’s immediate employer.”

For the purpose of facilitating payment of compensation benefits to an injured worker and to prevent avoidance of compensation liability by interposition of an independent contractor between the principal and a worker performing work in the principal’s business, Section 1061 provides that where a principal contracts for work that is part of his trade, business or occupation, the principal shall be liable for workmen’s compensation to any employee employed in the execution of the work as if the employee had been immediately employed by him. The section imposes compensation liability on the principal even though the injured employee is not an employee, general or special, of the principal. A fictitious “statutory” employer-employee relationship is created between the principal and the contractor’s employee for compensation purposes.

Where compensation liability is based on this statute, the principal or so-called “statutory employer” is entitled to indemnity from any person, normally the contractor, who independently of this section would have been liable to pay compensation to the employee or his dependent. This special statutory provision operates as an express exception to the general codal rule of contribution among solidary obli-gors.

If the injured worker is a borrowed or special employee of the employer and, therefore, a true employee as distinguished from a statutory employee, the employer’s liability for compensation is independent of this section. Since the employer’s liability is not based on this section, the indemnity provision of the section is not applicable.

In Malone & Johnson, supra, the authors note that the relationship between a vocational lending employer and a borrowing employer is virtually indistinguishable from the relationship between principal and contractor, and should be similarly treated. The legislature has, however, provided for different treatment, and not without reason, as illustrated by the facts of the instant case. If the injured worker is a true employee of the borrowing employer, under the direction and control of the borrowing employer in doing the work which results in the employee’s injury, then.it is only reasonable that the borrowing employer pay one-half of the compensation benefits. On the other hand, if the injured worker is not a true employee of the principal but is only a fictitious statutory employee not under the principal’s direction and control, it is only reasonable that, as between the principal and the worker’s true employer who directed and controlled the worker’s activity, the true employer should pay the full amount of compensation.

Where a borrowed or special employee of the principal is a general employee of one with whom the principal has contracted, compensation liability of the principal might be based either on the employer-employee relationship or on the “statutory” employer-employee relationship provided by Section 1061. Our view is, however, that the provisions of Section 1061 are not to be applied, as between the employers, where an employer-employee relationship exists between both employers and the employee independent of the section. The more direct relationship and basis of liability should control insofar as sharing of responsibility between the employers is concerned.

The central and determinative issue in this case is, therefore, whether the welder was a special or borrowed employee of Paramount. The trial court correctly found that he was.

Pyatt was one of seven welders employed by Duggan Machine Company to go out into the field to perform welding services for others at drilling site locations. Part of Duggan’s regular business was to furnish welders and equipment to persons or businesses in need of the temporary services of a welder. Paramount Drilling Company contacted Duggan requesting the services of a welder at a drilling site in Arkansas. Duggan supplied the welder, Pyatt, and also furnished his truck and welding equipment. Paramount was invoiced by Duggan at an hourly rate for the welder’s services and equipment. Duggan paid the welder on an hourly wage basis.

The normal procedure was for the welder to check in each day at Duggan’s office, punch in on the time clock, go to the well site, and then punch out at Duggan’s at the end of the day. The welder’s function at the well site was to “nipple up”, a welding operation required for each drilling start-up, and to do various jobs that might come up. He was to be supervised by the tool pusher or other supervisory personnel of the drilling company. Duggan had no supervisory or other personnel at the well site. The drilling company had control of when the welder was to come to work and when he could leave. It could discharge him from the job at any time.

Pyatt reported to the well site on the date of the accident. According to Paramount’s tool pusher, he gave Pyatt instructions on what was to be done, but did not have to stand over Pyatt while he was doing the work because Pyatt was an experienced welder and had worked for them before. Pyatt’s duties were to nipple up and do any other required welding jobs or odd jobs that required welding or the use of a cutting torch. On the day of the accident, in the early afternoon, Pyatt was making a bell nipple. A truck load of casing was delivered to the well site, but the load had shifted during transit and the driver could not remove one of the chains holding the load in place. Paramount’s tool pusher instructed Pyatt to cut the chain, and, specifically, to cut the length next to the hook. When Pyatt cut through the chain, the load of casing rolled off the truck and Pyatt was struck and killed by the heavy pipe.

Clearly, the welder was doing Paramount’s business under the direct supervision and control of Paramount. Paramount’s tool pusher assigned the tasks to be performed, including the specific work the welder was doing when he was killed. Paramount controlled when he came to work and when he could leave. It could discharge him from the job at any time. Pyatt was Paramount’s special or borrowed employee, and Paramount was liable for workmen’s compensation benefits as Pyatt’s special employer.

In other cases decided under the workmen’s compensation law, involving similar circumstances, the courts have held that the injured worker was a special employee of the borrowing employer, was entitled to workmen’s compensation benefits as such, and the workmen’s compensation liability of the employers was to be shared equally. In the Maryland Casualty Company and Lambert cases, supra, the general employer furnished a crane and an operator (the injured worker) to the special employer who exercised supervision and control over the operator on the job.

Benoit v. Hunt Tool Company, 219 La. 380, 53 So.2d 137 (1951) and other tort cases cited by appellant, dealing with borrowed servant determinations in various tort contexts, are not apposite to this workmen’s compensation case. Benoit dealt with the question of whether a lending employer should be held liable in tort to its regular employee under the theory that the employment relationship between the lending employer and its employee was suspended while the employee was working under the supervision of the borrowing employer. The court held that the employee was not the borrowed servant of the borrowing employer in the sense that it terminated his employment relationship with the general employer.

Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061 (La.App.3d Cir. 1977) was a tort suit by a truck driver employed by Stooksberry who was injured as the result of the negligence of a welder regularly employed by Ryder who was working at the site of a well being drilled by Getty Oil Company. Ryder’s attempt to escape liability for the negligence of its employee on an argument that the welder was a borrowed servant of Getty or Stooksberry and no longer was an employee of Ryder was rejected, as was the similar argument in the Benoit case. This determination under tort principles is not applicable to a determination of whether a worker is a borrowed or ■ special employee for purposes of workmen’s compensation liability. In Vincent the court also determined that the plaintiff truck driver was a statutory employee of Getty. The court was not presented with and did not pass on the issue of whether the negligent welder was either a borrowed employee or statutory employee of Getty.

Allen v. United States Fire Insurance Company, 222 So.2d 887 (La.App.2d Cir. 1969) was a tort suit by a welder in which the defendant asserted a defense of statutory employer and exclusivity of plaintiff’s workmen’s compensation remedy. The issue involved was whether the work being done was part of the defendant’s regular business, which the court found was the case and sustained the defense. There was no issue or decision as to whether the welder was a borrowed employee of the defendant.

In Jones v. Frances Romero, Inc., 345 So.2d 1286 (La.App.3d Cir. 1977), the principal issue was whether the work being done by the welder’s helper who was injured was part of the principal’s regular business so as to make the principal a “statutory employer”, barring the worker’s tort claim against the principal. This issue was resolved in favor of the defendant principal. Incidentally, the court of appeal affirmed a jury verdict finding the worker to be a statutory employee rather than a borrowed employee, precluding a claim for contribution by the general employer’s workmen’s compensation insurer. The court noted the difficulty in determining the distinction between a borrowed employee and a statutory employee and found an adequate evidentiary basis for the jury’s verdict. Because there are factual distinctions between the Jones case and the instant case and because of the lack of in-depth consideration of the issue, we do not regard the Jones decision as authoritative on the issue before us.

As pointed out earlier, an employee may be both a statutory employee and a borrowed or special employee. In either case, the employee is entitled to compensation from the principal or borrowing employer, as the employee’s exclusive remedy, and it matters not which theory is applied insofar as the employee is concerned. However, as between the general employer and the special employer, contribution is due where compensation liability exists independent of LSA-R.S. 23:1061 under a special employer-employee relationship, and indemnification by the general employer to the principal is applicable only where compensation liability is based solely on Section 1061.

Because Pyatt was the special employee of defendant Paramount, the provisions of Section 1061 do not come into play. Plaintiff is entitled to contribution from the defendant of one-half of the compensation benefits paid and to be paid.

For the reasons assigned, the judgment of the district court is affirmed at defendant-appellant’s costs.

Affirmed.

      . “Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      “Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

      .“Art. 2103. When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi-contract, an offense, or a quasi-offense, the debt shall be divided between them. If the obligation arises from a contract or a quasi-contract, each debtor is liable for his virile portion. If the obligation arises from an offense or a quasi-offense, it shall be divided in proportion to each debtor’s fault.
      “A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce contribution, if he is cast, against his solidary co-debtor by making him a third party defendant in the suit, as provided in Article 1111 through 1116 of the Code of Civil Procedure, whether or not the third party defendant was sued by the plaintiff initially, and whether the defendant seeking to enforce contribution if he is cast admits or denies liability on the obligation sued on by the plaintiff.”

      . “Art. 2104. If one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each.
      “If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent codebtors and him who has made the payment.”

      . “Art. 2106. If the affair for which the debt has been contracted in solido, concern only one of the co-obligors in solido, that one is liable for the whole debt towards the other codebtors, who, with regard to him, are considered only as his securities.”


text:
    J. W. HARRIS, Plaintiff-Appellant, v. GEORGIA-PACIFIC CORPORATION, Defendant-Appellee.
    No. 14415.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    Thomas & Dunahoe by Edwin Dunahoe, Natchitoches, for plaintiff-appellant.
    Colvin, Hunter, Brown, Plummer & Means by Robert E. Plummer, Mansfield, for defendant-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Plaintiff filed a petition under LSA-R.S. 23:1333 seeking to accelerate all weekly workman’s compensation benefits due him under a total and permanent disability judgment because of defendant’s failure to pay six successive installments as they became due. Finding that defendant’s failure to pay was not willful and that plaintiff failed to prove prior demand on the defendant, the trial court rejected plaintiff’s demands. We affirm.

On appeal plaintiff specifies that the trial court erred in failing to make the entire amount of the judgment due and exigible and, particularly, that the trial court erred in placing an undue burden of proof on the plaintiff in his effort to establish that a demand letter written by his attorney was received by the defendant.

Judgment was rendered July 12, 1979 ordering defendant to pay to the plaintiff total and permanent disability benefits in the sum of $140 per week. Defendant, who is not insured, paid the weekly benefits regularly through the payment due March 12, 1980. When no subsequent payments were received by plaintiff’s attorney, to whom payments were ordinarily mailed, the attorney had his secretary type a letter addressed to defendant in which he requested payment of the past due compensation benefits. The letter, a carbon copy of which was filed into evidence, was dated April 24, 1980 and was correctly addressed to defendant’s Crossett, Arkansas office. The attorney testified he signed the letter and had his secretary mail it. When no response was received, the petition in this action was filed on May 9,1980 and the rule was tried on May 19.

The evidence established that the failure to pay compensation benefits after March 12 was due to a clerical error. Defendant’s compensation payment records were maintained on weekly diary cards and a temporary employee inadvertently failed to pull the plaintiff’s card on March 19. Consequently, compensation was not paid on that date and the card was not diaried for the following week. The error would normally have been discovered on April 19, but that date fell on a Saturday when the office was closed, so the card was not pulled. The error would have been discovered on May 19, the date this suit was tried.

An employee in defendant’s workman’s compensation department testified the demand letter from plaintiff’s attorney was not received in her office. She further testified that a search was conducted for the letter but it was not found. Her first knowledge that payments had not been properly made came after this suit was filed and defendant was served.

LSA-R.S. 23:1833 provides:

“If the employer against whom a judgment awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; but if the employee or his dependent is adequately protected by insurance and receives payments thereunder this right shall not accrue.”

Because of the harsh nature of the penalty imposed by this statute and under the rule that forfeitures are not favored in the law, two requirements limiting the effect of the statute have been added by cases interpreting the statute. First, the cases have required that the employer’s failure to pay the installments must be a willful refusal to pay. Second, the cases have required the employee to make demand on the employer for past due payments before the penalty can be invoked. See Lytell v. Strickland Transportation Company, Inc., 373 So.2d 138 (La.1979); Crawford v. T. Smith & Son, Inc., 183 La. 103, 162 So. 814 (1935); Mason v. Costanza, 166 La. 323, 117 So. 240 (1928); Bennett v. St. Louis Hotel, 341 So.2d 642 (La.App. 4th Cir. 1977); Kirby v. Crystal Oil Refining Corporation, 14 La.App. 115, 129 So. 385 (La.App. 2d Cir. 1930); Eisel v. Caddo Transfer and Warehouse Company, 11 La.App. 408, 123 So. 496 (La.App. 2d Cir. 1929).

As previously stated the evidence clearly establishes that defendant’s nonpayment of weekly installments was due to a clerical error and was not willful. As the trial court noted, defendant’s system of payment is antiquated and does not have sufficient safeguards against error, but there was no willful refusal to pay.

The thrust of plaintiff’s argument on appeal is that the trial court erred in failing to hold that there was sufficient proof of defendant’s receipt of the attorney’s demand letter, and that defendant’s failure to pay after receiving the letter amounted to a willful refusal to pay.

The attorney testified he dictated ^nd signed the letter and that his secretary mailed it. However, the secretary did not testify. It was not established by direct evidence that the letter was properly stamped and placed in the mailbox. It was not established that it was the secretary’s custom to mail office correspondence and that she followed the custom on April 24 when the letter was prepared. Under these circumstances the presumption of receipt of a mailed letter did not arise. See Di Rosa v. Bosworth, 225 So.2d 42 (La.App. 4th Cir. 1969). Even if the evidence were sufficient to give rise to the presumption of receipt, that presumption was overcome by the testimony of defendant’s employee who denied receipt of the letter. The trial court correctly held that plaintiff failed to prove receipt by the defendant of demand for payment.

The judgment of the district court is affirmed at the cost of plaintiff-appellant.

Affirmed.


author: JASPER E. JONES, Judge.

text:
    Raymond SEPULVADO, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 14416.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.

      Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for third party defendant-appellant.
    Warren D. Ponder, Baton Rouge, for defendant-appellant Dept, of Highways.
    James B. Wells & Associate by James B. Wells, Bossier City, for plaintiff-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Defendants, the Department of Transportation and Development and J. T. Richardson, Co., Inc., appeal a judgment against them in solido in favor of plaintiff, Raymond Sepulvado, for damages sustained by plaintiff when he collided with an incomplete and unbarricaded bridge. The trial court found the accident was due to the concurring negligence of appellants and that plaintiff was not guilty of contributory negligence. We find that the plaintiff’s negligence contributed to the accident and reverse the judgment and reject plaintiff’s demands.

The accident occurred on US Hwy. 171 in DeSoto Parish, La. at a point where Richardson was building a bridge over Rambin Bayou pursuant to a contract awarded Richardson by the Dept, of Transportation. Richardson had commenced the work of replacing the bridge at the accident site in September, 1976. In 1977 a detour had been constructed in US Hwy. 171 around the bridge construction site. Richardson had placed, as directed by the Dept, of Transportation, a series of signs warning traffic approaching the construction site of the hazardous condition there existing. These signs were located both north and south of the construction site. The first of these signs located south of the construction site facing traffic proceeding north on Hwy. 171, which was the direction from which plaintiff approached the accident site, was located 2000 feet south of the bridge. This sign stated “Road Construction Ahead” and had installed thereon a flashing yellow light. At a point 1500 feet south of the bridge was a sign reading “Road Construction 1500 Feet”. At a point 1000 feet south of the bridge was a sign which read “Detour 1000 Feet”. There was located 750 feet south of the bridge a sign which read “25 MPH” on which was imprinted a zigzag emblem indicating a detour was being approached. Appellants herein also maintained directly across each end of the bridge, construction of which was nearing completion at the time the accident occurred, a barricade with a sign stating “Detour” with an arrow directing traffic to the detour.

On Sunday morning February 12, 1978, plaintiff left Shreveport traveling south on US 171 enroute to visit his mother in Zwolle. The bridge where the accident occurred is between Shreveport and Zwolle and plaintiff had his accident on his return trip to Shreveport from Zwolle. Plaintiff testified he observed a barricade located on the north end of the bridge as he proceeded south through the detour on the drive to his mother’s home, but that he did not notice whether there was also at this time a barricade located across the south end of the bridge.

At approximately 7:00 p. m. February 12, while returning to Shreveport from his visit with his mother in Zwolle, plaintiff, traveling north on US 171, crashed into the south end of the incomplete bridge. In this collision he sustained personal injuries and his vehicle was a total loss.

The trial judge found there was no barricade across the south end of the bridge at the time of the accident because it had been blown down by heavy winds which had occurred on Sunday, the date of the accident, or the night before, and the evidence supports this factual finding. The trial judge also found there were other signs located on the shoulder at other points but concluded the only effective warning was the barricade across the end of the bridge which had been blown down. The trial court found that appellants were jointly in control of the bridge and the barricade, and they were negligent in failing to maintain the barricade across the end of the bridge; and for this reason they were liable in soli-do to plaintiff for his damages; the court also found plaintiff was guilty of no contributory negligence. There is substantial evidence in the record to support the trial judge’s conclusion that appellants were in joint control of the bridge and barricade, and that they were negligent in failing to maintain the barricade. However, our view of the evidence is that it also establishes that plaintiff is guilty of negligence.

Plaintiff, a resident of Bossier City, testified that he visited his mother in Zwolle once a month. For this reason we conclude he had been passing over the detour alongside the defective bridge at least twice each month for many months before the accident occurred. The record does not establish exactly when the detour was constructed, but it does establish that Richardson commenced to replace the old bridge in September, 1976, and that before the new bridge could be constructed it was essential that the detour be first constructed, and the detour was constructed in 1977. At the time of the accident construction of the new bridge was practically complete. A reasonable inference from this evidence would be that plaintiff had been traveling upon the detour for approximately 10 to 12 months before the accident occurred.

Plaintiff acknowledged that just before the accident he was traveling north toward the site of the detour and observed the sign located 1500 ft. south of the detour with the words “Road Construction” written upon it. Plaintiff stated at this point he was traveling 50-55 MPH and that he made no effort to reduce his speed. The investigating trooper found that plaintiff had left 209 feet of skid marks prior to the time his vehicle came to rest upon the bridge and that 88 ft. of these skid marks were located south of the bridge. These facts establish that though it was dusk, or very near dark, plaintiff observed the existence of the defective bridge in his headlights at a point far enough south of it to have activated his brakes when he was 88 ft. from it. While plaintiff denied seeing anything other than the 1500 ft. construction sign, the evidence establishes that there exists a sign requiring him to reduce his speed to 25 MPH only 750 ft. south of the bridge, and another sign warning him of the detour 1000 ft. south of the bridge.

This court in the decision of Weinberg v. State, Department of Highways, 220 So.2d 587 (La.App. 2d Cir. 1969), after discussing the failure of a motorist to observe and heed warning signs similar to those in place along US 171 south of the defective bridge, made the following statement:

“Such failure to observe these warnings and give them proper attention was clearly an omission of duty and constituted contributory negligence which bars recovery.” Id. at 592.

In our recent decision of Morrow v. State, 377 So.2d 430 (La.App. 2d Cir. 1979), wherein we found a plaintiff who ran into a hole with which she was familiar that was probably located on the highway right-of-way was guilty of contributory negligence, we reviewed many of the more recent cases from this Circuit which held that though a motorist is entitled to assume the road to be safe for traveling he is not entitled to indulge in this assumption when he has actual knowledge of a hazard in the roadway. The court’s discussion is as follows:

“A motorist ordinarily has the right to assume that the highway on which he is traveling is clear and free from hidden defects. When he knows, however, that there is a dangerous defect or hazard in the roadway ahead which should be avoided for his own safety, he can no longer assume that the highway is safe for his travel. Coker v. Illinois Central Railroad Company, 267 So.2d 781 (La. App. 2d Cir. 1972); Rodgers v. State of Louisiana, Department of Highways, 376 So.2d 1295 (La.App. 2d Cir. 1979); Spain v. Caddo Parish School Board, 331 So.2d 497 (La.App. 2d Cir. 1976); Barr v. State through Louisiana Department of Highways, 355 So.2d 52 (La.App. 2d Cir. 1978); Ardoin v. State, Department of Highways, 333 So.2d 412 (La.App. 3d Cir. 1976); and Hailey v. LaSalle Parish Police Jury, 302 So.2d 668 (La.App. 3d Cir. 1974).
We held in Coker, supra, for instance, that the plaintiff was barred from recovery by his own contributory negligence in driving his automobile over a water-covered public street, which crossed a dangerous railroad spur track, with the result that a front wheel of the car struck a steel rail on the track and caused him to sustain personal injuries. The evidence showed that the plaintiff was familiar with that route, that he knew that the street was rough, particularly where it crossed the track, and that it was necessary for him to cross that spur track even though it was practically concealed from his view by the water.
Recently, in Rodgers, supra, we concluded that the surviving son of a deceased motorist could not recover damages for his father’s death, because of the contributory negligence of his father in running off the paved portion of a highway. The evidence showed that the decedent was a long-time resident of the area, that he had traveled that highway frequently, having traveled over it at least twice on the day of the accident, and that he was aware of the fact that the shoulders were low and thus were hazardous along that stretch of the highway.
In Spain, supra, we rejected plaintiff’s claim for damages for injuries to his minor son, because we found that the son was negligent in allowing his car to strike a manhole cover located in a field covered by high grass. Although the grass concealed the manhole cover from the view of the driver, the evidence showed that the young driver knew that the manhole cover was in the field and that it was located close to the route he was traveling.
And, finally, in Barr, supra, we said: ‘Paul Spurlock, because of his familiarity with the location of the narrow bridge and knowledge that it was unsafe for two vehicles to pass on it simultaneously, should have approached the bridge at a slow rate of speed so that he could have brought his vehicle under control in the event he met traffic approaching from the other direction. Spurlock was not entitled to assume the road was safe to travel because he had actual knowledge of the hazardous bridge. Martin v. State, Dept. of Highways, 322 So.2d 827 (La. App. 3d Cir. 1975). His failure to maintain control of his vehicle under these circumstances was negligence which contributed to the accident.’ ” Id. at 432.

Plaintiff here failed to maintain a proper lookout and observe all four of the warning signs that existed as he approached the detour. He saw one sign out of the four which advised him of the construction 1500 feet ahead and then took no action to reduce his speed and approach the construction site with caution. In addition to plaintiff’s failure to heed the posted warning signs, evidence establishes his familiarity with the detour and the hazards created by it because of his numerous trips upon it, including one trip which occurred only a few hours before the accident. All of these circumstances compel the conclusion that plaintiff was guilty of negligence which contributed to the accident.

We REVERSE the judgment in favor of plaintiff and now reject his demands at his cost.

      . We note the possible application of the doctrine of strict liability and LSA-C.C. art. 2317 as construed by the supreme court in Jones v. City of Baton Rouge, Etc., 388 So.2d 737 (La. 1980), could place liability upon appellants as custodians of the defective bridge even though they were guilty of no negligence in connection with the failure to maintain the barricade. Appellants, however, would not be liable to plaintiff on a cause of action asserted under LSA-C.C. art. 2317 if plaintiffs injuries were caused by his fault.
      In Jones, supra, the court after outlining the elements of strict liability (custodian of a defective thing which causes plaintiff’s injury) which must be proved set forth the defenses to strict liability as follows:
      “Once these elements are proved, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.” Id. at 740 [our emphasis].
      If Jones is here applicable, the failure of plaintiff, who was familiar with the hazard, to maintain a proper lookout, see the warning signs and react to them and prevent the accident, constitutes fault of the victim and a defense to strict liability. Jones applied strict liability and found the City of Baton Rouge and East Baton Rouge Parish liable for damages sustained by plaintiff when she stepped upon a defective catch basin cover. The Jones rule may not apply to the appellants here who had in their possession an incomplete and defective bridge as an essential part of the Department of Transportation’s duty to maintain and improve state highways.


author: PRICE, Judge.

text:
    SHREVEPORT PRODUCTION CREDIT ASSOCIATION, Plaintiff-Appellant, v. The BANK OF COMMERCE, Defendant-Appellee.
    No. 14417.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    Writ Granted May 1, 1981.
    Nelson & Achee by Roland J. Achee, Shreveport, for plaintiff-appellant.
    Schober, Clawson & Brabham by John L. Schober, Jr., Shreveport, for defendant-ap-pellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Shreveport Production Credit Association has appealed from the judgment rejecting its demands against The Bank of Commerce for recovery of the sum of $31,894.14, together with interest and attorney fees. Plaintiff was the payee of a check in this amount drawn by Dr. W. L. Ryder, on his checking account with the defendant bank. The check was issued by Ryder to remit the proceeds to plaintiff of a sale of cattle on which plaintiff had a chattel mortgage. On the same date (March 31, 1978) that the defendant bank received Ryder’s deposit of several checks of the Mansfield Livestock Auction Company, drawn on a Mansfield bank, totalling $31,894.14, Ryder’s check to plaintiff in the amount of $31,894.14 was presented to it for payment through regular banking channels.

Payment of plaintiff’s cheek was refused for the reason that it was drawn on uncollected funds. On the next banking day, April 3, 1978, defendant notified the Federal Reserve Bank in Dallas by telephone of the check’s dishonor and reason therefor and returned the check through the Federal Reserve System. On April 4, 1978, defendant completed collection of the several checks from the Mansfield Bank and Ryder’s account balance then exceeded $34,-000.00. On this same date notice of the dishonor of plaintiff’s check was given by telephone by the Federal Reserve Bank in Dallas to the First National Bank of Shreveport and the regional check processing center that presented the check for payment for Louisiana Bank and Trust Company, plaintiff’s depository bank. The actual return of the dishonored check to Louisiana Bank was not completed until April 10. On this date (April 10) defendant debited Ryder’s account for the sum of $26,-088.76 to pay the balance of principal and interest past due on a note owned by defendant on which Ryder was an endorser. Also on this same date a Louisiana Bank official called defendant to request a markup against Ryder’s account to expedite payment of plaintiff’s check which had just been returned. This request was denied and the reason given to the person making the request was that there was insufficient funds in the account for payment of the check. Plaintiff learned two days later on April 12 through further inquiries that the account had become insufficient for payment of its check because of the defendant’s action in exercising its alleged right of offset against the funds in the Ryder account which were for the most part generated from the proceeds of the cattle auction checks.

Plaintiff then filed this suit against defendant alleging numerous theories of recovery for the amount of Ryder’s check.

We find the principal basis on which it seeks recovery is as follows:

(1)That the defendant bank’s offset of the Ryder account was illegal because Ryder had not given express authority to the bank to exercise such a right of offset.
(2) That the offset was also improper because the defendant bank had agreed, in December 1977, to give Ryder, who was in serious financial difficulty, a one-year moratorium to work out his financial problems.
(3) That defendant bank’s officers and employees were or should have been aware of plaintiff’s interest in the disputed funds and that plaintiff is entitled to recover these funds under a “trust fund” theory.
(4) That defendant bank is liable either in tort or by estoppel because of the actions of its officers and employees in selecting a method of returning the dishonored check which resulted in undue delay and in giving misleading information which was the cause of plaintiff not having payment stopped on the checks for the cattle sales which were deposited by Ryder or to have the Ryder check re-presented for payment prior to the offset against his account.

We shall discuss these issues in the order as presented above.

(1) VALIDITY OF THE OFFSET

The indebtedness for which the defendant bank exercised its alleged right of offset against the Ryder account arises from the endorsement by Ryder of a promissory note of First Medical Investors, Inc., dated September 20, 1976, for $25,000.00, which was secured by chattel mortgage. Ryder executed the note and mortgage on behalf of the corporation as its president. He also endorsed the note in his personal capacity. The note did not contain a provision authorizing the right of offset by the bank of the maker’s and endorser’s accounts for non-payment. The mortgage identified with the note did contain the proper authorization for offset. Plaintiff contends the offset was therefore not expressly authorized by Ryder as he did not sign the chattel mortgage personally but only as president of the corporation. While there is some confusion in the jurisprudence on this question, we do not find it necessary under the circumstances presented to address this issue. Whether the offset was properly authorized is an issue between the bank and its depositor. Ryder is not a party to this action and plaintiff has no standing to raise this issue on behalf of Ryder in this suit. The cases cited by plaintiff in brief on this issue are all concerned with actions brought by depositors directly against banks and are therefore inapplicable to this situation.

(2) WAS A MORATORIUM AGREED TO BY DEFENDANT

The trial court, although it gave no written reasons for judgment, dictated several findings of fact into the record at the conclusion of trial. The court found that the defendant bank had never given a firm commitment to a moratorium proposal. Plaintiff contends such an agreement was made at a meeting of a representative of the American Bank and Trust Company, Ryder, and J. Harper Cox, president of the defendant bank, in December 1977. American was the principal creditor of Ryder and was most interested in helping Ryder work out his problems. A former officer of American testified that he was under the impression that Cox agreed to such a plan if the other banks were also willing. Cox admits a discussion took place, and that he gave it some consideration. However, he denies that any firm commitment was ever made to Ryder. This version is substantially corroborated by the testimony of Ryder himself who admits Cox stated “let’s take it further and formalize it more.” We find the preponderance of the evidence to support the trial court’s finding that no agreement for a moratorium was made by defendant.

(3) LIABILITY UNDER “TRUST FUND” THEORY

Plaintiff contends that the defendant bank was aware or should have known under the circumstances that the $31,894.14 sum deposited by Ryder on March 31 was derived from the sale of mortgaged cattle, and that plaintiff had a beneficial interest in this deposit. Plaintiff stresses that officers of the defendant bank knew of Ryder’s deposit of a substantial sum from checks issued by a livestock auction company and of plaintiff’s presentment of a check in the same amount on the same date. As defendant had previously been furnished a financial statement by Ryder two years earlier showing a chattel mortgage indebtedness to plaintiff, and as defendant knew plaintiff regularly provided financing for agricultural products, plaintiff argues that defendant should have been on notice that the check was issued to it by Ryder for credit against a mortgage indebtedness.

In support of this theory of recovery, plaintiff relies principally on the decision of the Supreme Court in Merchant’s & Farmers’ Bank & Trust Co. v. Hammond Motors Co., Inc., et al, 164 La. 57, 113 So. 763 (1927). In that case the bank attempted to exercise a right of offset for notes owed by Hammond Motors against an account which was created by an attorney for the special purpose of paying certain creditors from the proceeds of a sale of Hammond Motors’ assets. The account was opened as “Hammond Motors, Escrow” which the court found placed the bank on notice of its special purpose, and the bank was therefore precluded from offsetting against the account under these circumstances. The court pivoted its decision on the fact that “the deposit formed no part of the general checking account of Hammond Motors Company, but partook of the nature of a trust fund .... ”

Plaintiff also cites and relies on the Federal District Court case of Swift & Co. v. Hammond Farmers’ Ass’n. Ltd., et al, 22 F.2d 166 (5 Cir. 1927), in which the court denied the bank the right to exercise an offset against funds collected by agents for fertilizer companies. The funds in question clearly belonged to the principals and were placed in the agents’ general accounts. The court found the evidence too conflicting to determine whether the bank had knowledge or notice of the true ownership, but decided the case on a finding that the banks had not in any way changed their position or acted to their detriment because of the deposit of the special funds in the general account of the agents.

There are several distinguishing factors of the instant situation from the above cited cases. The funds Ryder received from the cattle auction and deposited in his general account with defendant bank were his funds and not the funds belonging to a third party. The evidence shows that Ryder had an understanding with plaintiff that he could sell whatever cattle he desired at any place or time, with the agreement that he would pay the full amount received against his chattel mortgage indebtedness on the cattle. He was therefore not acting as an agent for plaintiff or in a fiduciary capacity. Furthermore, the checks issued by the livestock auction company contained the following endorsement: “This check issued to the payee for livestock, and by the endorsing same, the payee guarantees he is the sole and unconditional owner of such livestock and there are no liens and/or chattel mortgages on same.”

This endorsement, which was on the checks deposited in Ryder’s regular checking account, renders it difficult to cast the defendant bank officials with actual or constructive knowledge that plaintiff had a beneficial interest in these funds.

It should be noted that plaintiff took no precautions which obviously were available, to protect its interest in the sale proceeds. Instead it gave Ryder an unrestricted right to sell the cattle and to remit the sum for which the cattle were sold through his general checking account.

We can find no authority to hold that the defendant bank was under a duty to have made further investigation into the source of the funds deposited by Ryder to determine if the funds belonged to a third party or whether he intended to have such funds deposited for a special purpose under the circumstances presented. We do not find plaintiff had shown it is entitled to recover under the “trust fund” theory in this instance.

(4) LIABILITY OF DEFENDANT FOR ALLEGEDLY CAUSING DELAY IN RE-PRESENTMENT OF CHECK

Plaintiff contends primarily that defendant, for reasons it has not satisfactorily explained, routed the dishonored check bank back through the Federal Reserve Bank of Dallas, knowing that this method would result in a much longer delay for plaintiff to have access to the check for re-presentment. Plaintiff contends the more reasonable method of returning the check, since all banks involved were local, would have been to return the check directly to the depository bank of plaintiff.

We find defendant did present evidence to satisfactorily explain that it followed an approved procedure in returning the check through the Federal Reserve. The testimony of a Federal Reserve official shows that defendant followed the recommended federal reserve procedure for returning a dishonored check of this amount. Other testimony shows that should defendant have sent the check back directly to the depository bank, and that bank had insisted it be sent through normal channels, then defendant would have held the check more than 24 hours, and under banking regulations, would be solely responsible for its validity.

The testimony also shows the defendant bank did not have a correspondent relationship for clearing house purposes with the First National Bank of Shreveport, and therefore it could not have routed the check back through the same channel that it followed for original presentment.

Whatever may have been defendant’s motive or intent in routing the check through the Federal Reserve, it apparently was in accord with approved banking regulations and no further duty can be owed plaintiff in this regard.

Plaintiff also contends the officials or employees of the defendant bank gave misleading or erroneous information in response to various inquiries on the status of the Ryder check which lulled plaintiff and its depository bank into a false sense of security concerning payment of the check on re-presentment, and that defendant should now be estopped from retaining the disputed funds under its alleged right of offset. Plaintiff also claims these same actions by defendant’s employees constitute tortious conduct for which defendant should be liable for its damages.

Plaintiff’s basic position is that had accurate information been received to the series of inquires made on its behalf regarding the payment of the check, it would have taken immediate steps to either request the Mansfield Auction Company to stop payment on its checks to Ryder and to reissue the checks directly to it, or it would have requested Ryder to issue another check which could have been presented for payment pri- or to defendant’s offset of the account on April 10.

The misleading information contended by plaintiff was allegedly given in response to inquiries made by Ryder’s secretary, who handled his banking affairs, and by personnel of plaintiff’s bank, Louisiana Bank and Trust Company, on April 4 and April 7. According to the testimony of these several persons, an employee of the bookkeeping department and a branch manager of the defendant bank gave erroneous or misleading information on these dates as to the status of the Ryder account. The thrust of plaintiff’s argument in this regard is that there was an inference in the responses made to the inquiries that the checks making up the $31,894.14 deposit by Ryder continued in the “uncollected funds” status throughout this period of time although they’were actually collected on April 4.

Admittedly there is some contradiction and confusion in the responses alleged to have been made by defendant’s employees. However, there is not sufficient evidence to show that any one of defendant’s employees deliberately gave any misleading or untrue information which was intended for the purpose of causing damage to plaintiff.

We do not find the evidence sufficient to sustain plaintiff’s plea of estoppel or its claim for damages in tort.

For the foregoing reasons, the judgment appealed is affirmed. Costs of this appeal are assessed to appellant.

      . John D. Holliman and Robert McArthur, both assistant vice presidents of credit for Shreveport Production Credit Association in 1978, attested to this in deposition.


author: FRED W. JONES, Jr., Judge.

text:
    Fayella A. KEEN et al., Plaintiffs-Appellants, v. PEL STATE OIL COMPANY, INCORPORATED et al., Defendants-Appellees.
    No. 14418.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    En Banc. Rehearing Denied March 27, 1981.

      Hargrove, Guyton, Ramey & Barlow, Joseph L. Shea, Jr., Shreveport, for plaintiffs-appellants.
    Wilkinson & Carmody by John S. Odom, Jr. and Arthur R. Carmody, Jr., Shreveport, for defendant-appellee, SWEPCO.
    Bodenheimer, Jones, Klotz & Simmons by C. Gary Mitchell, Shreveport, for interve-nor-appellee, Melton Truck Lines, Inc.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.

      . Affirmed by us in Keen v. Pel State Oil Co., 332 So.2d 286 (La. App. 2d Cir. 1976).

   FRED W. JONES, Jr., Judge.

The widow and children of Kenneth Keen filed a wrongful death action against Fountain, the driver of a vehicle with which Keen had collided in his fatal accident, Fountain’s employer, the latter’s insurer, and Southwestern Electric Power Company (SWEPCO). Upon the sustaining of a motion for summary judgment, the suit was dismissed as to Fountain’s employer and its insurer. A jury trial was held as to the remaining defendants and, pursuant to the verdict rendered therein, the trial judge signed a judgment in favor of plaintiffs against Fountain for $450,000, but dismissed the claim against SWEPCO.

Plaintiffs appeal this judgment, contending that the case should be remanded for a new trial on the claim against SWEPCO because the trial judge committed reversible error in ruling inadmissible (1) evidence relating to the cause of Keen’s death and (2) evidence relating to the foreseeability of this type of accident by SWEPCO.

We affirm.

Context Facts

At about 5:00 A.M. on November 5,1973, Keen was driving a tractor-trailer rig south on Hearne Avenue in Shreveport. At the same time Fountain was driving a pickup truck west on Hollywood Avenue, which intersects with Hearne Avenue. Both are four lane thoroughfares. As Keen, facing a green light, entered the intersection, his truck was struck by the vehicle operated by Fountain, who had run a red light. The impact of the collision forced Keen’s rig into a SWEPCO utility pole located near the southwest corner of the intersection. The pole was sheared off and three energized distribution lines fell, two landing on the street surface and one on Keen’s truck. Keen was killed as a consequence of his involvement in this accident.

Ruling on Evidence Relating to Cause of Death

Trial on the merits was held during the week of February 4, 1980.

Pursuant to the provisions of La.R.S. 33:1561 B plaintiffs introduced into evidence Keen’s death certifícate which had been completed and signed by the Caddo Parish Coroner. Under the section of the certificate dealing with cause of death, the following information was given:

“IMMEDIATE CAUSE
(a) Electrocution
DUE TO OR AS A CONSEQUENCE OF
(b) Thermal burns from diesel fuel fire
DUE TO OR AS A CONSEQUENCE OF
(c) Collision with truck and electric pole.”

Later, in the presentation of their evidence plaintiffs called as a witness Dr. John Valiulis, a plastic surgeon. After being accepted by the trial court as an expert witness, Dr. Valiulis was shown photographs taken of the deceased Keen immediately after the accident, told that Keen had stepped out of his truck near a high voltage wire and was seen to jerk, and was asked to express his opinion as to the immediate cause of death. Upon objection by defendants, the trial judge ruled that Dr. Valiulis would not be permitted to answer this question because it was an attempt on the part of plaintiffs to impeach the death certificate, which had been filed on their behalf. In a proffer made by plaintiffs it was stated that Dr. Valiulis’ answer to the question would have been that Keen died from electrocution.

Impeachment of a witness is an attack upon the credibility of that witness. Subject to limited exceptions, one may not impeach his own witness. La.R.S. 14:487. However, presenting the contrary testimony of other witnesses does not constitute the impeachment of one’s own witness. La. R.S. 15:489.

In this case the Coroner listed the immediate cause of Keen’s death as electrocution. Dr. Valiulis’ testimony would not have contradicted this. However, the Coroner proceeded to state that the electrocution was due to “thermal burns from diesel fuel firing.” This was obviously ambiguous and apparently an attempt to specify an alternate cause of death. As a consequence, Dr. Valiulis’ testimony would simply have been an attempt to resolve this ambiguity rather than contradict the death certificate. Be that as it may, in view of the cited statutory provision, even if Dr. Valiulis’ testimony had been contrary to the death certificate that would not have constituted an impeachment of the document. For these reasons we find that the trial judge erroneously excluded the testimony of Dr. Valiulis relating to the cause of Keen’s death.

However, after examining the entire record, we conclude that this was harmless error since the evidence would have been largely cumulative. There is ample evidence in the record showing that Keen was electrocuted. One eyewitness stated that Keen “lit up like a Christmas tree” when he stepped from the truck. Larry Phillips, another eyewitness, testified: “I knew he was being electrocuted. I could see him jerking.” Steve Robert stated that he started to open a door on the tractor-trailer rig and was shocked even before he touched it. On the other hand, no evidence at all was presented of a diesel fire. Both Dale Martin and Tommy Canella, who investigated the accident on behalf of the Shreveport Fire Department, testified that a tarpaulin covering some shingles on the trailer bed was on fire, but saw no indication of a diesel fire.

Not only did the jury have for its consideration the statement in the death certificate that the immediate cause of Keen’s death was electrocution, it also had the testimony of these witnesses. Therefore, the trial judge’s erroneous ruling that Dr. Valiulis’ testimony on this question was inadmissible did not deprive the jury of an opportunity to hear critical testimony. It is for this reason that we characterize the error as harmless.

Ruling on Evidence Relating to Foreseeability of Accident

Plaintiffs contend that the trial judge committed reversible error by ruling inadmissible evidence pertaining to the frequency with which vehicles struck electric utility poles in Shreveport, arguing that they were thus precluded from proving that SWEPCO should have foreseen the likelihood of this kind of accident and taken appropriate measures to protect those involved from falling energized wires. In his ruling the trial judge restricted plaintiffs to the offering of evidence as to the frequency with which vehicles in Shreveport struck utility poles and the lines fell.

Evidence of prior accidents is admissible for the purpose of proving notice of defects or physical conditions which are dangerous. Cassanova v. Paramount-Richards Theatres, 204 La. 813, 16 So.2d 444 (1943); Carriere v. Aetna Casualty Co., 146 So.2d 451 (La.App. 4th Cir. 1962). However, to be admissible that evidence must be closely related in circumstance to the hazard at issue. Miller v. Employers Mutual Liability Ins. of Wisconsin, 349 So.2d 1353 (La.App. 2d Cir. 1977).

In this case the “hazard at issue” was the danger of a vehicle striking a utility pole and thereby causing energized wires to fall to the ground. The evidence tendered by plaintiffs, considered by us in the form of an offer of proof, pertaining simply to the number of times that vehicles in Shreveport have struck utility poles, is not closely related to the “hazard at issue.” This evidence was irrelevant because the mere showing, that vehicles in Shreveport frequently collide with utility poles would not in itself serve to forewarn SWEPCO that this would likely result in the fall of energized wires. Consequently, the trial judge correctly held that this evidence was inadmissible.

On a related matter, plaintiffs also complain that the trial judge erred in excluding for purposes of rebuttal the deposition of Robert Baker, offered pursuant to La.C. C.P. Article 1450(2).

In response to a question as to how frequently vehicles in Shreveport struck utility poles and thereby caused energized wires to fall, Charles Cook, a SWEPCO officer, stated that this had occurred only three times in 25 years. To refute this testimony plaintiffs attempted to offer in rebuttal the discovery deposition of Baker, another SWEPCO employee, which contained testimony that accidents of this nature happened “occasionally.” The trial judge ruled that this was inadmissible because Baker’s statement did not actually contradict that of Cook and, further, that this testimony should have been introduced by plaintiffs when they were presenting their case in chief. For these reasons the trial judge also refused plaintiffs’ request to have an instanter subpoena issued for Baker to testify at the trial, which was nearing its conclusion.

The record does not establish that Baker was a SWEPCO officer, director, managing agent, or one designated under Article 1442 or 1448 to testify on behalf of SWEPCO, as required under La.C.C.P. Art. 1450(2) for his deposition to be used as proposed by plaintiffs. If Baker did fit into one of those categories, the trial judge erred in excluding the use of his deposition by plaintiffs for rebuttal purposes. Whether his testimony did in fact contradict that of Cook would have been an issue for determination by the jury.

However, even if the deposition had been admitted into evidence, or if Baker had testified in person and repeated his deposition statement on this point, and if plaintiffs had established that SWEPCO should have foreseen the likelihood of this kind of accident, the record does not show proof by plaintiffs that SWEPCO was negligent in that it failed to employ reasonable safety measures in connection with the installation and maintenance of this particular electrical circuit.

According to the record, the conductors in question were bare wires, carrying some 12,000 volts of electricity, extending laterally across Hollywood Avenue and elevated 27 feet above the ground. Although this span was characterized as being on a standby basis because it did not directly serve customers, the wires were kept in an energized state for immediate use in the event of a power outage in the area. This circuit was installed in 1958.

Plaintiffs sought to prove the negligence of SWEPCO through the testimony of two expert witnesses, both highly qualified engineers, the thrust of whose testimony was that SWEPCO was negligent in either of the following respects: (1) In not de-ener-gizing the span in question, since it was on stand-by and not in continual use; (2) in not insulating the wires over the street; or (3) in not placing those wires underground.

SWEPCO’s expert witnesses, equally well-qualified, addressed each of these contentions, explaining:

(1) If this span had been de-energized, before use in the event of an emergency it would have been necessary to send out a crew to check the wires for defects, with the resultant delays. During that time hazards would probably be created, with traffic lights out, home lights out, and a municipal pumping station served by the circuit without power to function.

(2) Insulation is normally used where space between wires is restricted, not in a situation such as this. The average life of an insulated conductor is between seven and ten years. It may start to deteriorate within four years, and that deterioration can cause a failure in the line. When an insulated line breaks, the insulation usually snaps back away from the end of the wire, leaving it bare. Therefore, the disadvantages of insulation on a span such as that in question outweigh any advantages.

(3)Running wire through underground cables at busy intersections would be extremely hazardous to the public because it would be necessary to bring the wire down a pole where it could be readily exposed to casual contact, particularly near bus stops. Furthermore, the danger from vehicles striking exposed wires on these poles would be greatly increased. In addition, the connection between the overhead wire and the cable would be extremely vulnerable to lightning.

Therefore, in view of our conclusion that plaintiffs have not proven the negligence of SWEPCO even if the accident was foreseeable, we hold that any error committed by the trial judge in excluding from the jury’s consideration the deposition of Baker, or his testimony in person, was harmless error.

Conclusion

For the reasons given we affirm the judgment of the trial court dismissing the suit as to Southwestern Electric Power Company, at appellants’ costs.

      . The cause of death, the manner or mode in which the death occurred, as rendered by the coroner and incorporated in the death certificate filed with the Office of Vital Records of the Division of Health shall be the legally accepted manner and mode by which the deceased came to his or her death and shall be the legally accepted cause of death; unless the court of the parish in which the death occurred, after a hearing, directs the coroner to change his decision as to the cause, mode or manner of death... .

      . At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
      * * * * its *
      (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Article 1442 or 1448 to testify on behalf of a public or private corporation, partnership, or association, or governmental agency which is a party may be used by an adverse party for any purpose.


text:
    Daniel L. GIBBS, d/b/a Dan Gibbs Dozer Contractor, Plaintiff-Appellee, v. BERNARD McMENAMY CONTRACTOR, INC., Defendant-Appellant.
    No. 14421.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    En Banc. Rehearing Denied March 27, 1981.

      Paul Henry Kidd, Monroe, for plaintiff-appellee.
    Davenport, Files, Kelly, Marsh & Graham by Thomas W. Davenport, Monroe, for defendant-appellant.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Defendant, Bernard McMenamy Contractors, Inc., appeals a judgment against it in the amount of $110,000 in favor of plaintiff, Daniel L. Gibbs, for dirt allegedly placed in a levee by Gibbs pursuant to a contract with appellant. The judgment which was pursuant to a jury verdict also rejects appellant’s reconventional demand. We amend the judgment and reject plaintiff’s demands, and as amended affirm.

In July of 1974 appellant was awarded a contract by the Corps of Engineers to enlarge a levee located along the east side of the Ouachita River south of Monroe, La. In August of 1976, after appellant had put in place on the south end of the levee project 66,439 cubic yards of dirt, it subcontracted the addition to the levee on the south end of the levee enlargement project to plaintiff. The subcontract was a unit price contract and provided that appellant would pay to plaintiff $1.35 per cubic yard for each yard of dirt placed in the levee structure in accordance with the plans and specifications of the Corps as contained in the contract between appellant and the Corps. The contract between the Corps and appellant was made a part of the subcontract by reference. The subcontract provided that plaintiff would make monthly draws based upon the work he completed .and for which appellant had collected from the Corps. The Corps contract provided that the monthly progress payments would be made by the Corps only for the dirt put in place in the levee structure in accordance with the plans and specifications as established by a cross-section survey of the levee and computations based upon the survey; and it was upon this basis by the terms of the subcontract and the Corps contract that plaintiff should have received his monthly progress payments. The Corps and appellant waived the method required by the contracts for establishing the amount of monthly progress payments to be paid to plaintiff for the months of August, September and October. Plaintiff was paid for cubic yards as determined by a truck-load count in the month of August. He was paid for the number of cubic yards as determined by a survey of the dirt removed from the bar-pit from which he was excavating for the month of September; and he was paid for cubic yards of dirt based upon a truck-load count for the month of October.

Following the month of October, the Corps refused to make further payments except for dirt established to have been properly placed into the levee structure by a cross-section survey of the structure. A cross-section survey of the structure completed December 15, 1976 established that plaintiff had put in place upon the levee in accordance with the plans 132,033 cubic yards of dirt. The total of cubic yards for which plaintiff had been paid in the months of August, September and October was 150,886 cubic yards. He had therefore been overpaid to the extent of 18,853 cubic yards, or in an amount of $25,451.55. Because the survey established plaintiff’s overpayment, appellant refused to pay any progress payments for the months of November and December, and plaintiff moved his equipment from the job and refused to continue with the subcontract.

Plaintiff instituted this suit alleging that he had put into place upon the levee during the months of November and December 81,619 cubic yards of dirt for which he had not been paid. He alleged that the yardage was determined based upon a truck-load count calculated at 10.7 cubic yards per truck. He alleged that there was an agreement between him and appellant for him to receive $1.35 per cubic yard placed on the levee with the yardage so placed to be determined by a truck-load count calculated at 10.7 cubic yards per truck. The amount of plaintiff’s suit calculated on the alleged yardage put into place on the levee times $1.35 per cubic yard was $110,185, and the jury awarded him $110,000.

The subcontract provided that appellant was to pay on behalf of plaintiff, plaintiff’s monthly payroll, taxes and insurance, and withhold the amount so paid from plaintiff’s monthly progress payments. Appellant paid these items on behalf of plaintiff for the months of November and December in an amount totaling $24,339.18, and because plaintiff received no progress payments for these months appellant was not reimbursed for these payments.

Appellant initially reconvened for the amount of the overpayment as established by the December 15th survey and the amount of the payroll, taxes, and insurance advanced for November and December for which it was not reimbursed, and for substantial other damages allegedly sustained by virtue of plaintiff’s failure to complete the contract. In brief before this court appellant has now reduced its claims asserted in the reconventional demand to the sum of $25,451.55 allegedly overpaid plaintiff for dirt in place, and for the sum of $24,339.18 which was advanced for plaintiff’s November and December payroll, taxes and insurance expenses.

The issues are (1) was there substantial evidence presented to the jury to support the judgment in favor of plaintiff? and (2) should the jury have made an award to appellant on the reconventional demand?

Plaintiff’s contract required him to excavate from a bar-pit the material to be used in the levee enlargement and to haul it to the levee and then place it into the levee structure in the manner required by the plans of the Corps. He was only entitled under the contract to be paid $1.35 for each cubic yard of dirt put in its proper place upon the levee. The dirt which was removed from the bar-pit contained about 25% moisture after its excavation and had to be placed alongside the levee to dry before it could be incorporated into the levee structure. It therefore is apparent that the cubic yards loaded upon the trucks and moved to the levee site are probably 25% less than the cubic yards of dirt actually incorporated in the levee structure.

Though plaintiff alleged in his petition that there was an agreement that he was to be paid $1.35 per cubic yard based upon a truck-load count calculated at 10.7 cubic yards per truck, he offered no evidence to support these allegations. The contract between appellant and the Corps and the subcontract between appellant and plaintiff both conditioned payment to the cubic yards of dirt properly put in place on the levee structure. Plaintiff admitted at trial that the final payment under his subcontract was to be made only upon the yards of dirt put in place in the levee structure.

The evidence establishes that the most reliable way to determine the number of yards of dirt located in a levee structure is by cross-section survey of the levee and calculation based upon the results of the survey. The prime contract which was made a part of the subcontract by reference required that the yards of dirt incorporated in the levee in the enlargement project be determined by cross-section survey. Plaintiff never made a cross-section survey for the purpose of determining the amount of dirt properly put in place by him in the levee structure. He offered no evidence to the jury of the amount of dirt placed by him in the levee as established by a cross-section survey of the levee structure. All of the evidence offered by plaintiff to establish his claim related to a truck-load count of material hauled from the bar-pit to the site of the levee during the months of November and December, 1976. There was therefore no evidence in the record to support the jury’s verdict in favor of plaintiff in the amount of $110,000 paying him for 81,619 cubic yards of dirt allegedly placed in the levee structure in the months of November and December, other than the truck-load count evidence.

Plaintiff does not deny that he had been paid for 150,886 cubic yards of dirt for the months of August, September and October. Appellant’s evidence establishes that in 1972 the Corps preparatory to proceeding with the enlargement project subject to this litigation had prepared a survey of the levee structure to be enlarged. Appellant, prior to executing the contract with plaintiff in August, 1976, performed a cross-section survey upon the levee to find out how many yards of dirt it had placed upon the south end of the levee in partial performance of its contract with the Corps, and this survey reflected appellant had put upon this point of the structure 66,439 cubic yards. Appellant’s survey completed December 15th reflected that 198,472 total yards had been properly placed upon the south end of the project covered by plaintiff’s subcontract. By deducting 66,439 cubic yards which appellant had placed before plaintiff commenced the execution of his subcontract, this survey established that plaintiff had placed 132,033 cubic yards of dirt, and under these circumstances, by the terms of the contract he had been overpaid for 18,853 cubic yards, or the sum of $25,-451.55.

It is significant that appellant’s survey completed December 15th reflected that there existed 47,974 cubic yards of dirt which had been hauled by plaintiff to the levee site which were out of place and for that reason appellant was entitled to no payment for it under the terms of the contract.

While the record is not totally clear, it appears that some of the out of place dirt was lying adjacent to the levee structure as it was involved in the drying process and that substantial amounts of the out of place dirt was incorporated in the levee structure in a manner contrary to the plans. This out of place dirt incorporated in the structure reflected an overbuilding of the levee.

Plaintiff could have returned to the job and properly incorporated all the out of place dirt into the structure and been entitled to payment therefor, but this he refused to do. Appellant completed the work which had been subcontracted to plaintiff and used the out of place dirt brought to the levee site by plaintiff in completion of the levee project.

The evidence establishes that in addition to the 47,974 cubic yards of out of place dirt disclosed by appellant’s survey, that plaintiff hauled 15,150 cubic yards of dirt to the levee site during the period between the completion of the survey on December 15th and the time plaintiff ceased working on December 31st. Reducing the amount of this yardage hauled to the levee site by 25% for its moisture content we find that in the last two weeks of December plaintiff, in a continuing effort to fulfill his contract, hauled a net total of 11,363 cubic yards of dirt to the levee site. We also note there is some small portion of dirt that may have been put in place in the levee by plaintiff during this time, but we are unable to determine from the record what the amount would have been.

We conclude that following plaintiff’s cessation of efforts to perform his contract, that there remained at the levee site dirt excavated and hauled by plaintiff, but not put in place by him, totaling 59,337 cubic yards. Appellant used this dirt but made no effort at trial to establish how much it cost to properly incorporate this dirt into the levee structure. Plaintiff testified that the 47,974 yardage shown out of place by appellant’s survey could be incorporated in its proper location in the levee structure for $6,000. A careful analysis of his testimony reveals, however, that he contemplated doing this work in 12-days and estimated the use of three bulldozers and one grader at a charge of $90 per hour working a 10-hour day, or a daily charge of $900, which would result in a 12-day charge of $10,800, which we conclude is the correct amount of plaintiff’s estimate to perform this work, but we find he could not have done the work in 12-days.

Appellant incorporated 59,337 cubic yards of dirt hauled by plaintiff into the structure, and this is only slightly less than V2 of the 132,033 cubic yards that plaintiff had properly incorporated into the structure during the 4-month period between August 14 and December 15, 1976. Because plaintiff’s dirt which appellant put into the structure was close at hand and some of it was incorporated in the structure, though at the wrong place, it could have been moved and put in the right place much faster than it could have been initially worked into the levee. We conclude that a fair estimate of the number of days required to place plaintiff’s dirt into the levee would be approximately 34-days, and based upon plaintiff’s claim of $900 per day cost we conclude that it would cost appellant approximately $30,600 to place the dirt hauled by plaintiff into the levee in its proper place.

If plaintiff had properly incorporated within the levee structure the 59,337 cubic yards of dirt hauled by him to the levee site, he would have been entitled to receive at the rate of $1.35 per cubic yard the sum of $80,104.95. We conclude that it cost appellant approximately $30,600 (or approximately 34-days work time based upon a cost of $900 per day as testified to by plaintiff) to incorporate plaintiff’s dirt into the levee site. This would therefore leave plaintiff entitled to $49,504.95 for the work performed by him in excavating the fill and hauling it to the levee site, even though he did not complete his contract. Defendant’s reconventional demand for the cost of 18,-853 cubic yards of dirt paid to plaintiff but not put into place as reflected by the December 15th survey, and the advance for plaintiff’s November and December payroll, insurance and taxes, is a total of $49,700. Though there is some small difference in the amount of $49,504.95 which we conclude plaintiff should be entitled for the dirt hauled by him but left out of place, and defendant’s established reconventional demand of $49,790, because of the estimations we have been forced to use to arrive at the amount of plaintiff’s claim, we find the respective claims of the litigants offset each other.

The jury award was obviously based upon a truck-load count for the reason that it is almost the exact amount sought in the petition which was calculated upon a truck-load count. Plaintiff is entitled to no sum under the terms of the contract with appellant calculated on this basis. The evidence establishes that plaintiff was paid by appellant for all dirt proven to have been properly put in place by him as required by the contract. We conclude that the jury verdict in favor of plaintiff in the amount of $110,000 is not supported by the evidence and is manifestly erroneous and for that reason the judgment based upon it is reversed and set aside and plaintiff’s demands rejected.

For the reasons assigned the judgment in favor of plaintiff is REVERSED and his demands are rejected, the portion of the judgment rejecting appellant’s reconven-tional demands is affirmed and we assess all cost below and on appeal equally between the litigants.

      . The trial judge denied appellant’s motion for new trial but in his written reasons for so doing made the following comment with regard to the evidence: “In our opinion the verdict in this case cannot reasonably be supported by the evidence.”