author: HOOD, Judge.

text:
    Judy Belle V. Millet, wife of Lester J. MILLET, Jr. v. Lloyd B. JOHNSON, Individually and as Sheriff of St. John the Baptist Parish.
    No. 10765.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.

      Louis R. Koerner, Jr. and Terry A. Bell, New Orleans, for plaintiff-appellant.
    Carville & Edrington, LaPlace, Richard L. Edrington and Bernard J. Rice, III, La-Place, for defendant-appellee.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   HOOD, Judge.

This is a defamation suit instituted by Mrs. Judy Belle Millet against a number of defendants, one of whom is Lloyd B. Johnson, individually and as Sheriff of St. John the Baptist Parish. In response to a motion filed by Johnson, a summary judgment was rendered by the trial court dismissing plaintiff’s suit. Plaintiff appealed. We reverse.

The issue presented is whether a genuine issue of material fact exists, and thus whether the trial judge erred in rendering a summary judgment.

LSA-C.C.P. art. 966 provides that a motion for summary judgment shall be allowed if the pleadings, depositions, admissions on file and affidavits show “that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” The summary judgment remedy is not a substitute for a trial. The mere likelihood that the mover will succeed following a trial on the merits, or the belief that the opposing party is unlikely to prevail despite a genuine issue as to a material fact, is not a sufficient basis to warrant the rendition of a summary judgment depriving the litigant of a trial. The burden of proof rests on the party seeking the summary judgment to show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. All doubts concerning the use of such a procedure must be resolved against the granting of a summary judgment and in favor of a trial on the merits. LSA-C. C.P. art. 966, Hobbs v. Firemen’s Fund-American Insurance Cos., 293 So.2d 608 (La.App. 3rd Cir., 1974); Mandella v. Russo, 294 So.2d 598 (La.App. 4th Cir., 1974). Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4th Cir., 1976). Parker v. South Louisiana Contractors, 340 So.2d 322 (La.App. 1st Cir., 1976).

The pleadings, the admissions on file, the deposition of Robert M. Becnel, the affidavits, and the other receivable evidence in the record, including letters and documents, show that plaintiff is the wife of Lester J. Millet, Jr., who served as Sheriff of St. John the Baptist Parish for several months prior to January 30, 1976. Defendant Johnson defeated Millet in the latter’s bid for re-election as Sheriff in 1975, and Johnson was sworn in as Sheriff of that Parish during the early part of 1976. After the election, but before Millet went out of office, the regular bookkeeper for the Sheriff’s office resigned, and Millet employed his wife, the plaintiff in this suit, to be the bookkeeper for that office.

On or about August 17, 1976, after Johnson had been sworn in as sheriff, he submitted to the Police Jury of St. John the Baptist Parish a written report of the expenditures made by the Sheriff’s Office during the preceding fiscal year, as required by LSA-R.S. 42:283. In that report, he showed that his predecessor, Millet, while serving as Sheriff, paid to plaintiff, his wife, the sum of $3,000.00 for employment for “Vz month.” Under a heading entitled “St. John Parish Sheriff Salary Fund, Salary Expenditures for period between July 1, 1975 and January 30, 1976,” the report includes the following listing:

“Judy Belle V. Millet Vz month $3,000.00”

That report was submitted to the Police Jury and thereafter it was published in “L’Observateur,” the official journal of the Parish of St. John the Baptist.

Mrs. Millet learned about the above listing some time prior to the time the report was published. She thereupon informed de-. fendant Johnson and all members of the Police Jury, by letter, that the report was incorrect. In that letter she advised that she had been employed to work in the Sheriff’s Office for a period of three months, beginning November 1, 1975, and ending January 30, 1976, at a salary of $1,000.00 per month, and she requested that the report be corrected to show that fact before it was published. She stated that if the report should be published as originally submitted by Johnson, showing that her husband paid her $3,000.00 for working only V2 month, she intended to institute suit against Johnson and all members of the Police Jury. Mrs. Millet also called attention in that letter to an error in the report relating to the payment of a telephone bill by the Sheriff’s Office.

Defendant Johnson received the letter which Mrs. Millet wrote to him. He also received another letter from the Secretary-Treasurer of the Police Jury, dated August 31, 1976, advising him of the alleged discrepancy pointed out by Mrs. Millet, and asking him if there were to be any changes in the financial report which he had submitted to the Police Jury. Johnson replied by letter that “there are no changes to be made in the Salary Fund Records with reference to Mrs. Millet.” He added a footnote to the report, however, explaining the error relating to the telephone bill.

After Johnson informed the Police Jury that there would be no changes in the financial report, Mrs. Millet then sent a mail-gram to each member of the Police Jury which reads:

“I HAVE BEEN ADVISED BY MY ATTORNEY TO PUT YOU ON NOTICE THAT THE AUDIT REPORT OF SHERIFF LLOYD B. JOHNSON OF SAINT JOHN THE BAPTIST PARISH STATING I RECEIVED $3,000.00 FOR ONE HALF MONTH WORK IS UNTRUE. UNLESS I AM ALLOWED TO DEFEND MYSELF BEFORE THE REPORT IS PUBLISHED TO READ $3,000.00 FOR 3 MONTHS WORK OF WHICH I HAVE SUBSTANTIAL PROOF THAT I DID WORK 3 MONTHS I WILL HAVE NO ALTERNATIVE BUT TO SUE YOU PERSONALLY FOR ' DEFAMATION OF CHARACTER. I AM USING THIS TELEGRAM AS MY OFFICIAL NOTICE THAT YOU WILL BE SUED PERSONALLY IF THIS REPORT IS PUBLISHED IN IT’S PRESENT FORM
JUDY BELLE V. MILLET”

Despite these notices and requests, the financial report was published as originally submitted by defendant Johnson, except for the footnote which was added to explain the error contained therein relating to the payment of a telephone bill.

The record contains affidavits of three former employees of the Sheriff’s Office, all of whom declared that Mrs. Millet worked as the bookkeeper in the Sheriff’s Office for three months, during November and December, 1975, and January, 1976. Also in the record is an affidavit executed by Mrs. Millet stating that the financial report filed by Johnson contains an erroneous entry relating to her employment, that she attempted to have Johnson correct the error but he “refused to investigate the error or correct same,” and that the report was published in a paper of general circulation in St. John the Baptist Parish “at the insistence and with the approval of defendant Johnson; all in complete disregard of affiant’s notices that an error had been committed.” The affidavit further recites that “Johnson had reason to know of the falsity of the report,” and that “he had the necessary motive and intent to maliciously publish the defamatory report.”

Defendant Johnson submitted with his motion for summary judgment two affidavits, one signed by him and the other signed by an employee of the Sheriff’s Office, both stating, in effect, that according to the records of that office the information contained in Johnson’s financial report relating to the salary paid to Mrs. Millet is true. He also attached to his motion an affidavit signed by the President of the Police Jury reciting that the decision to publish the financial report was made by the Police Jury, and that “Johnson was not a party to that decision.”

Johnson also contends that Mrs. Millet is a “public official,” or a “public figure,” or a “public person,” or that she is a “private figure involved in public debate,” or that the question presented in this case is a “matter of public concern.” He argues that in view of those circumstances Mrs. Millet cannot prevail in the instant litigation based on defamation, unless she satisfies the burden of proof which was set out by the United States Supreme Court in New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and the many cases which are the progeny of that decision, including Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Although Johnson concedes that states now may apply their own standards with regard to defamation, subject to the limitations set out in Gertz, supra, he argues that the courts of this state have applied the New York Times rule to private persons who are involved in an event of public or general concern, citing Francis v. Lake Charles American Press, 262 La. 875, 265 So.2d 206 (La.1972); and Wilson v. Capitol City Press, 315 So.2d 393 (La.App. 3rd Cir., 1975).

Defendant’s argument is that in order for plaintiff to recover in this defamation suit she must satisfy the following four elements of proof:

1) Falsity of the statement;
2) Actual or implied malice;
3) Publication of the statement; and
4) Injury.

The .trial judge made no finding (1) as to whether Mrs. Millet was a “public figure,” or (2) as to whether defendant Johnson defamed her. Although he did not find, it necessary to label Mrs. Millet as a “public figure,” he commented in his reasons for judgment that the taking of evidence would be necessary before such a-finding could be made. He concluded that under Louisiana jurisprudence the New York Times rule should be applied here even though plaintiff is a private individual, and that she thus, must satisfy the four elements of proof above listed. His ultimate conclusion was that “the publication in question . does not in itself show actual or implied malice under present law, nor in my opinion could the plaintiff prevail in such an attempt during a trial on the merits,” and that “under present law, the facts as set out by either party require a judgment in favor of Lloyd B. Johnson, both as an individual and as Sheriff of the Parish of St. John the Baptist.” A summary judgment thus was rendered dismissing plaintiff’s suit.

We like the trial judge, find it unnecessary to determine whether the plaintiff in this suit is a “public figure,” or whether the New York Times rule should be applied. We differ with the trial’judge, however, in his conclusion that a summary judgment can or should be rendered in this case. In our opinion, plaintiff’s petition states a cause of action against defendant Johnson, whether she is or is not held to be a “public figure,” • and whether the New York Times rule is or is not applied. We find that there are several genuine issues of material fact. If plaintiff is able to establish the facts which she alleges, then we think that evidence would be sufficient to justify findings by. the trier of fact which may satisfy the requirements of the New York Times rule.

According to the receivable evidence which is in the record there are genuine issues of fact as to (1) whether the statement in the financial report filed by defendant Johnson to the effect that Mrs. Millet was paid $3,000.00 for working Vz month is true; (2) whether defendant Johnson acted with actual or implied malice in including the above statement in his report; and (3) whether Johnson was responsible in any way for the publication of the above financial statement. The record does not contain a discussion of the injury which plaintiff may have sustained as a result of the alleged defamatory publication, but we assume that there is a genuine issue of fact as to that item.

If it should become necessary at the trial to show that plaintiff is a public figure, or that the publication of which she complains related to an event of public or general concern, then a genuine issue of fact exists at to those matters.

It is apparent, therefore, that genuine issues of fact exist as to all of the conceivable elements of proof required of the plaintiff. Under those circumstances we conclude that the trial judge erred in rendering a summary judgment dismissing plaintiff’s suit.

Defendant argues, further, that the summary judgment procedure is an appropriate method of giving the constitutional protection of the First and Fourteenth Amendments in defamation cases. In support of that argument, he cites Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (U.S.App.D.C., 1967); Cerrito v. Time, Inc., 302 F.Supp. 1071 (N.D.Cal., 1969); F. & J. Enterprises, Inc. v. Columbia Broadcasting Systems, Inc., 373 F.Supp. 292 (N.S. Ohio, 1974); Ragano v. Time, Inc., 302 F.Supp. 1005 (M.D.Fla., 1969); and United Medical Laboratories v. Columbia Broadcasting Systems, 404 F.2d 706, 713 (U.S. 9th Cir., 1969). He also points out that in Kidder v. Anderson, 354 So.2d 1306 (La., 1978) our Supreme Court indicated that summary judgment might have been a proper remedy in that case, although the case had been tried on its merits and the decision was rendered following such a trial.

We are aware of the jurisprudence which recognizes that the summary judgment procedure is particularly appropriate in some defamation cases. We note, however, that the Court of Appeal, First Circuit, affirmed the judgment of the trial court in rejecting a motion for summary judgment in such a case. See Batson v. Time, Inc., 298 So.2d 100 (La.App. 1st Cir., 1974). Also in Guam Federation of Teachers Local 1581 AFT v. Ysrael, 492 F.2d 438 (U.S. 9th Cir., 1974), a judgment was rendered by the trial court directing a verdict for defendant in this type of suit, and that judgment was reversed on appeal. The appellate court compared the motion for directed verdict to a motion for a summary judgment, and concluded that such a judgment was unwarranted in that instance. And, in Carson v. Allied News Co., 529 F.2d 206 (U.S. 7th Cir., 1976), a summary judgment dismissing a libel- suit filed by “public figures” was reversed and the case was remanded.

In the instant suit plaintiff has alleged a cause of action, and there exist some genuine issues of material facts. The evidence in the record is conflicting, and we cannot make a determination of the true facts from that evidence. Under those circumstances we feel that it was error to render a summary judgment dismissing the suit.

The judgment appealed from is reversed, and judgment is hereby rendered rejecting the demand of defendant Johnson for a summary judgment. The case is remanded to the trial court for further proceedings consistent with the views herein expressed. The costs of this appeal are assessed to defendant Lloyd B. Johnson.

REVERSED AND RENDERED, REMANDED.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Jon J. DAVIS v. Earnest and Opal MOREAU and Allstate Insurance Company.
    No. 10805.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.

      Robert J. Caluda and James E. Shields, New Orleans, for Jon J. Davis, plaintiff-appellant.
    Daniel R. Hynes, Robert F. Lakey, Porteous, Toledano, Hainkel & Johnson, New Orleans, for Earnest Moreau, Opal Moreau and Allstate Ins. Co., defendant-appellees.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment maintaining an exception of no cause of action. Appellant puts at issue both error in maintaining the exception and alternatively permission to amend. We affirm.

Plaintiff, John J. Davis sued Earnest and Opal Moreau and their insurer, Allstate Insurance Company for personal injuries and damages caused by his being shot on the Moreau premises. His petition alleges: . That the Moreaus are the owners of 2503 Claire Ave., Gretna, Louisiana, and Allstate insured them under a Home Owners Liability policy; that plaintiff, an off-duty police officer for the City of Gretna was summoned to the premises by a resident named Merrill Simmons and was shot by Simmons; that the Moreaus allowed Simmons to reside at the premises and that they were negligent “for allowing a person of unruly characteristics, suicidal tendencies and a weapon to be in defendant’s premises *

The defendants filed the peremptory exception of no cause of action (C.C.P. Article 927) which the trial judge sustained, dismissing plaintiff’s suit. C.C.P. Article 934. It is basic that the validity of the exception stands upon the allegations of the petition and no evidence may be introduced in connection with the exception. C.C.P. Article 931.

The liability of the landowner in this case is based on the concept of fault under Articles 2315 and 2316 of the Louisiana Civil Code. The principles regulating the determination of that liability are succinctly set out in the case of Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976). The proper test to be applied is “whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others”. In its further consideration of the duty owed by the landowner under the duty-risk approach, the court further stated at p. 410:

“In making this determination, the following inquiries must be made: (1) What, if any, duty was owed by the landowner to the plaintiff? (2) Was there a breach of this duty? (3) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?”

Under the allegations detailed above, we cannot see any special duty owed by the Moreaus to Davis because of simply allowing a person with unruly characteristics, suicidal tendencies and a weapon to be on their premises, in the absence of any showing of a special relationship between the Moreaus and Simmons, or extraordinary circumstances which may indicate that the Moreaus knew or should have known that Simmons may shoot Davis. We would thus agree with the trial judge’s maintaining the exception of no cause of action, and now pass to a consideration as to whether dismissal was proper, or whether the ground of the objection may be removed by amendment under C.C.P. Article 934.

To support amendment, the appellant would offer the following facts. Prior to the incident, Opal Moreau permitted Merrill Simmons and her daughter to gra-tuitiously reside with her. On the day in question, Simmons attempted to take his own life and began discharging firearms in the Moreau residence. Consequently," police were called to the scene and surrounded the residence in an effort to subdue Simmons and avert further damage. Plaintiff Davis, a Gretna policeman who was off duty, resides across the street at 2502 Claire Avenue. After the police were called, Simmons requested that Davis be brought to the site so that he may speak with him. Wishing to assist, Davis complied with Simmons’ request and prudently attempted to talk Simmons into surrendering; while attempting to persuade Simmons to cease the disturbance, Davis was shot. Additionally, plaintiff would add that Opal Moreau knew that Simmons had attempted suicide previously, that he had an extensive record of violent criminal activity, and that he maintained his firearms at her residence.

Under this set of facts, it would appear obvious that the shooting would, not have occurred on the premises had Simmons not been on the premises or if he had no weapon. At the same time, there is no contention that Simmons was attempting to harm anyone other than himself in his suicidal attempt. At the time action became necessary, the landowner did what his duty required, that is, called the police. Davis came in response to a summons from Simmons, not from the landowner. There was no hidden hazard or trap of which the landowner was aware, and the plaintiff was not aware. We are impressed with the statement in Shelton v. Aetna Casualty & Surety Company, supra, at page 410:

“The duty- of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner.”

• Accordingly, we conclude that even under the allegations of fact offered in amendment of the petition, there would be no breach of duty on the part of the landowner, and we affirm the dismissal of plaintiff’s petition.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    David CHAMBERS, III v. UNITED CAB COMPANY et al.
    No. 10851.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Reis, Stanhope & McKay, David C. Stan-hope, New Orleans, for plaintiff-appellee.
    Bernard, Cassisa, Babst & Saporito, B. Frank Davis, Metairie, for defendants-appellants.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiff-appellee, David Chambers, III, sues United Cab Company and Thomas C. Moody for property damages and physical injuries that he sustained as a result of an accident involving plaintiff and Moody, a driver employed by the United Cab Company, on April 21, 1977.

After a trial without jury, judgment was rendered in favor of Chambers and against United Cab Company and Thomas C. Moody, in solido, for the following:

General damages $4,000.00

Medical expenses 1,125.25

Damage to automobile 1,051.00

Loss of use of automobile 300.00

Total $6,476.25

with interest from judicial demand and all costs of the proceedings.

In his reasons for judgment, the trial judge denied recovery for car rental because he said he did not believe the plaintiff had paid this sum; but he allowed loss of use of his vehicle for a period of time in which it reasonably should have been repaired. He added that in the absence of an explanation for the extended delay, he allowed loss of use for 30 days at $10 per day.

At the trial on the merits Chambers testified that, although the vehicle he was driving at the time of the accident was registered to his mother for insurance purposes, he was the owner of the vehicle and had purchased it himself. He also testified that he was employed at the time of the accident, making approximately $1,000 per month, although he was living at home with his widowed mother and his brothers and sisters.

No evidence contrary to the above was presented by the defendants.

In regard to the damage and subsequent repairs made to the vehicle he was driving, plaintiff testified that the steering wheel was shaking and making a lot of noise and it was not usable at night because the lights would not open up. He also testified he sometimes used the damaged car during the day for work and that for a while there was another car available to him which belonged to a friend of his mother’s. This friend later demanded the return of her vehicle, he further testified, and on August 9, 1977 he took the damaged car out to Bailey Lincoln-Mercury, where Moody had asked him to take it for the repairs. Chambers also testified that the car then remained at Bailey until December 21, 1977. From August 9 to December 21, plaintiff would call Bailey periodically, but would be advised that they did not have the parts yet.

When the car was finally repaired, Bailey Lincoln-Mercury presented him with a bill for $1,000. Chambers testified that he borrowed the money to pay for the repairs to his car from a homestead and offered as proof a cancelled promissory note for $1,129.32. Other than this testimony by plaintiff and the cancelled note, no other evidence was offered to prove the extent of physical damages to the car or the amount of dollar damages. The defendants presented no contradictory evidence.

Plaintiff testified that on the advice of Moody he rented a car from a relative when his attempts to rent a car from several commercial establishments were without success. Although the plaintiff testified that he paid rent to his cousin for the use of an automobile, the trial judge in his reasons for judgment stated that he did not believe plaintiff paid any sum for car rental.

The issues presented in this case are:

1. Did the trial court err in finding ' that the plaintiff had standing to recover for property damage to a vehicle which he testified that he had bought and paid for, and was, indeed, the owner of, in spite of the fact that the vehicle at the time of the accident was registered to his now-deceased mother?
2. Did the trial court err in finding that the damages to the automobile in question amounted to the sum of $1,051?
3. Did the trial court err in awarding $300 for loss of use of the vehicle?

In the case of Ford Motor Credit Company v. Soileau, 323 So.2d 221, 223 (La.App.3d Cir. 1975), the court said: “We recognize that the Certificate of Title is not conclusive proof of ownership, and that proof showing different ownership is admissible.”

The court in Scott v. Continental Insurance Company, 259 So.2d 391, 394 (La.App.2d Cir. 1972), stated:

“The registration of sales of motor vehicles under the Vehicle Certificate of Title Law is an administrative proceeding which does not bear any essential relationship to contracts of sale of motor vehicles. Transportation Equipment Co. v. Dabdoub, 69 So.2d 640 (La.App., Orl. 1954—writs denied). Consequently, failure to comply with the administrative regulations prescribed by the statute with respect to the sale of motor vehicles does not invalidate sales consummated under the aforesaid codal provisions. Hamner v. Domingue, 82 So.2d 105 (La.App., 1st Cir. 1955—writs denied); Bedsole v. Lee, 78 So.2d 434 (La.App., 1st Cir. 1955). In this regard, we had occasion to observe in Whitten v. Travelers Insurance Company, supra, 141 So.2d 40, 42 [La.App.]:
‘The Vehicle Certifícate of Title Law clearly does not make the sale of a motor vehicle void if the transfer is not executed in conformity with that statute. * * *

Appellants argue that there was no documentary evidence to establish Chambers as owner of the vehicle. A review of the record bears this out; however, plaintiff testified that he was the owner of the vehicle, that he had paid for it himself, that he was working and had an income of approximately $1,000 a month at the time of the accident, and that the vehicle had been registered in his mother’s name solely to reduce his insurance premiums.

Chambers also produced a cancelled note at the trial, of which he was the sole signer, and he also testified that the loan represented by this note was made for payment of the repairs on this particular vehicle.

The trial court was not in error in deciding that Chambers was the actual owner of the vehicle, and, therefore, had procedural capacity to recover for the damages to it. There is not that manifest error needed to disturb the trial court’s finding. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The defendants’ next contention is that the trial court erred in finding that damage to the automobile amounted to $1,051. They argue that there were no photographs of the damage presented at trial, no invoice from a repair service, no estimates, nor were there presented any cancelled checks evidencing payment to a repair service. Furthermore, defendants argue that the plaintiff failed to present any evidence regarding the nature of the damages sustained by the vehicle or establishing the quantum of those damages.

The trial court, obviously, did not agree. One of the plaintiff’s exhibits was, as noted previously, a cancelled' note representing money borrowed to pay for the repairs. The- plaintiff also testified that the exact amount of the repair bill was $1,051, the amount of the judgment awarded for the damages. Moreover, at the trial the defendants produced absolutely no evidence to contradict the plaintiff’s testimony regarding the connection between the note and the repairs. Finally, plaintiff testified that he had had the damage appraised at Louisiana Auto Appraisal at Moody’s request, and io is therefore not unfair to presume that defendant, through Moody, had knowledge of the amount of the repair appraisal and would have cross-examined plaintiff on this point if that appraisal were lower.

We find that the record does furnish a reasonable factual basis for the district court’s finding that plaintiff is entitled to damages for repairs to his automobile in the amount of $1,051.

Defendants also argue that the trial court’s allowance of $300 for loss of use of ■ the plaintiff’s car was error because the record is totally devoid of any evidence upon which to ground its conclusion.

In regard to the issue of compensation for loss of use of property, the court said in Chriss v. Manchester Insurance & Indemnity Co., 308 So.2d 803, 806 (La.App.4th Cir. 1975):

“The normal measure of damages for loss of use is the rental value of similar property and perhaps necessary incidental expenses. It is not necessary, however, that a plaintiff actually rent substitute property in order to recover damages due for loss of use. Rental (which accomplishes the substitution of the use of similar property for that of the injured property) does not determine entitlement to damages, but only provides a fair measure of damages in appropriate cases.”

The appellants on the other hand cite two other cases in support of their argument. In Sherwood v. American Ry. Express Co., 158 La. 43, 103 So. 436, 438 (1925), the Court stated:

“The little to be added to the foregoing is that article 1935, R.C.C., cited above, is not entirely applicable. Certainly it is applicable from the time when plaintiff’s automobile should or might have been repaired. ■ But it was then, and then only, that plaintiff’s right ceased as to damages other than interest on the amount due; for ‘where through an injury to property, plaintiff is temporarily deprived of its use, the measure of his damages is the amount of the injury to the property together with the value of its use during the time required by the exercise of proper diligence to secure its repair,’ 17 Corpus Juris, p. 878, § 184, note 28. Such is the rule in other jurisdictions, and we think it is no different in this. See Reisz v. Kansas City Southern R. Co., 148 La. 929, 88 So. 120, citing, inter alia, 8 Ruling Case Law, 493.
“But we have searched the record in vain for any evidence as to how long it would have required to repair plaintiff’s automobile, and since we cannot notice judicially the time which would be required for that purpose, we are constrained to refuse plaintiff an increase, and must let the judgment stand.”

Although the plaintiff in the above case was denied recovery for loss of use of his vehicle, that casé is distinguishable on the facts from the present case. In Sherwood, supra, the car had not yet been taken for repair at the time of trial, nor was there any estimate presented regarding the time which would be required for the needed repairs. In the present case, however, plaintiff had already had the car repaired; moreover, he testified that it took not one month but more than four months (from the time the car was actually taken to the repair establishment in August, 1977 until the release of the car in December, 1977) to have the repairs completed.

The defendants also cite the case of Holleman v. Viola, 330 So.2d 627, 629 (La.App.4th Cir. 1976), which stated:

“The period of compensatory loss of use. is the time required to have the damaged property repaired when due diligence is exerted. See Chriss v. Manchester Insurance & Indemnity Co., 308 So.2d 803 (La.App.4th Cir. 1976). In the instant case the evidence establishes the plaintiff did all that could be reasonably expected to complete the repairs as expeditiously as possible.”

In the Supreme Court’s recent decision of Reck v. Stevens, 373 So.2d 498 (1979), the Court said that the initial inquiry of an appellate court on the issue of quantum must always be directed at whether the trial court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact’s “much” discretion or “great discretion” in the award of damages as established by LSA-C.C. art. 1934(3).

In his Reasons for Judgment, the trial judge stated:

“I do not believe plaintiff paid any sum for car rental and is entitled only for loss of use of his vehicle for a period of time in which it reasonably should have been repaired. In the absence of explanation for the extended delay, I allow loss of use for 30 days at $10.00 per day.”

We can find no such abuse of this discretion on the part of the trial court’s award for loss of use of Chambers’ vehicle.

Accordingly, the trial court’s judgment is affirmed in all respects, appellants to pay all costs of this appeal.

AFFIRMED.


text:
    Mary Margaret Forry, wife of/and William H. BESNARD v. DEPARTMENT OF HIGHWAYS, State of Louisiana and the City of New Orleans.
    No. 10856.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.

      Dodd, Barker, Boudreaux, Lamy & Gardner, Harold J. Lamy, New Orleans, and James W. Armstrong, III, Covington, for plaintiffs-appellees.
    Philip K. Jones, Norman L. Sisson, Marshall W. Wroten, Baton Rouge, Jesse S. Guillot, New Orleans, for State of Louisiana, Dept, of Transp. & Development, defendant-appellant.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiffs-appellees, Mary Margaret For-ry, wife of/and William H. Besnard, filed suit against the Department of Highways, State of Louisiana, and the City of New. Orleans for injuries she sustained as a result of an automobile accident.

The case was tried in Civil District Court for the Parish of Orleans before John M. Holahan, Commissioner and Judge ad hoc. Based on the Commissioner’s written report, Judge Henry J. Roberts, Jr., rendered judgment in favor of the plaintiff and against the defendant-appellant Louisiana Department of Highways for $120,323.29, together with interest from judicial demand .and all costs of the proceedings, including expert witness fees. The plaintiff’s suit against the City of New Orleans was dismissed.

The accident occurred on May 21, 1976, at about 7:15 a. m., on Chef Menteur Highway in the City of New Orleans between Cerise and Camelot Streets. Plaintiff Mary Bes-nard, who at the time was 23 years old, was driving her Chevrolet Nova at 40 to 45 miles an hour on Chef Menteur Highway. There was traffic in front, to the left and behind plaintiff’s automobile. The two-lane median-divided highway on Chef Menteur, proceeding east to west, was bordered by a shell shoulder until the highway approached Cerise Street. At that point a paved bus stop extended out northward from the travel lane of the highway. The white line painted on the right side of the highway, extended past the bus stop, headed west. At that point a curbing at Cerise Street confronted the driver. The white line appeared to lead traffic in the right lane into the curbing and shoulder at Cerise.

Mrs. Besnard testified that:

“I was travelling west bound on Chef Menteur Highway in the right hand lane and there was a soft shoulder on the right hand side and right before Cerise Street the Chef Menteur widens to accommodate a bus lane. Beyond that on Cerise Street the curb in the road narrowed. I remained in the right hand lane of traffic because I couldn’t make it over into the left lane of traffic because there were cars over there, but I pulled further to the left because the road had narrowed. As I pulled further to the left Chef Ment-eur Highway then starts to swing back over to the right and as I pulled to the left they were blocking me so still within my lane of traffic I pulled further to the right.”

She added that, when she pulled to the right, she hit an object or obstruction and lost control of her car; that she did not' know what she had hit; did not see anything in the roadway before she struck it; was looking ahead in the traffic but was concerned with traffic in the left hand lane which appeared to be pulling into her lane causing her to pull to the right.

The evidence establishes that at the point of impact with the broken piece .of curbing that extended into the roadway, plaintiff struck her head, became dazed and, despite her attempts, could not control her car. Plaintiff’s car entered the shoulder of the highway and violently struck a utility pole, causing her to suffer extensive personal injuries.

On cross-examination defendants’ witnesses testified that this portion of Chef Menteur Highway was of unsafe design; was misleading and confusing to the motoring public; that the broken and protruding curbing when struck could cause a vehicle travelling at 40 miles an hour to lose control; and that the broken curbing should have been fixed without delay to avoid a wreck.

The preponderance of the evidence clearly establishes that the broken protruding curbing struck by plaintiff had been in need of repair for at least two to five years prior to the accident and that at least on one occasion prior to the accident the proper authorities had been notified. Numerous previous accidents had occurred at this particular location caused by automobiles striking the curbing, blowing tires, losing hub caps and on several occasions meeting with serious upsets.

A reading of the record and testimony substantiates the Commissioner’s following description of the area of and the approach to the scene of the accident:

“Prior to the intersection of Cerise Ave. and Highway 90, the sides of U.S. 90 remain unenclosed by curbings of any sort. At periodic intervals bus lanes were created in order to facilitate transit passengers. These bus stops were located three or four blocks apart from one another. One of these bus stops was located at the northeast intersection of Cerise Ave. and U.S. 90. Immediately across Cerise Ave., in direct alignment with the bus stop the Department of Highways built an upright curbing approximately 6-7 inches high which traversed the entire arc formed by a radius of the intersection and formed the traveled right-of-way along the north side of U.S. 90.
“At a point on this curbing, where the radius of the intersection meets with the straight curbing, a defect in the highway developed. The curbing at this point is made of concrete which forms not only the upright part of the curbing but the horizontal bed of the roadway for approximately 12 inches. A section of this curbing and gutter formation approximately 3-4 feet long had become displaced, and this section of concrete was elevated and projected into the roadway for several inches. The vertical displacement was approximately six inches and the horizontal displacement about the same. Such displacements did not affect the roadbed or the lane widths except to the limited area involved.
“Because the roadway itself is shifted to the right immediately after this intersection, there is a tendency of oncoming traffic to anticipate such by giving way to the right.
“The highway, at this point, according to the evidence, is highly traveled, and approximately 35,000 cars per day pass the intersection involved on U.S. 90. Evidence showed that the curbing, at points along the arc formed by a radius, was heavily damaged by vehicles which had overrun the curbing after they had entered the bus stop lane and were confronted with the curbing.” (Emphasis ours.)

There was substantial testimony as to whether a hazardous condition did exist at the collision site and whether the Highway Department had actual or constructive notice of such a defect.

Susan Stubenrauch, a resident of New Orleans East for the past 13 years and presently living on Camelot Street, testified that she saw Mrs. Besnard’s car hit the broken curbing, go out of control and hit a telephone pole; that the tire of Mrs. Bes-nard’s car was caught in between the broken curbing; and that plaintiff was trying to control the car but she could not. Miss Stubenrauch added that she had been living in the same location for 10 years before the accident, just a few blocks from the accident site; that the broken curbing had been there for three years; and that she had also seen other cars hit the curbing and .blow out tires. She admitted, however, on cross-examination, that she saw plaintiff hit the curbing and had only assumed plaintiff hit that particular spot.

Madeline D. Stubenrauch, Susan’s mother, testified that on the day of the accident, the curbing in question was broken and a chunk of concrete abutted out about a foot, and that this condition had existed for at least five years. She said she has never hit the curbing herself because she was familiar with it.

Vickie McBrayer, a passenger in Miss Stubenrauch’s car, said she was not looking at first because the sun was in her eyes; however, when she heard Susan scream she said she turned around and Mrs. Besnard’s car was already on the grass. She added that at that point Mrs. Besnard was grasping the wheel trying to turn to the left to get back on the road and she then hit the post. She also testified that although she had never hit the curbing in question, she had come close and had seen other drivers come close to hitting the curb, swerve, and almost hit another car. To avoid the curbing a car in the right hand lane would have to go into the left hand lane, she said.

Ms. Joseph Gastaver, who lives on Chef Menteur Highway between Cerise and Camelot, said, when shown a photograph of the accident site, that the broken curbing had been that way two or three years. Ms. Gastaver also testified that since 1972 she had been finding hub caps between the shoulder of the road and her fence two or three times a week. When she had a full trunk of them, she took them to a junkyard and sold them. She admitted that she had never seen any accidents and that many of the cars turning on Cerise onto the Chef could have been hitting the curb there. She also. admitted that although she used the Chef Menteur Highway regularly she never called to report this curb to anyone.

Percy Dillon was working at an Exxon service station on Chef Menteur Highway across the street from the accident site and had worked there a number of years before ■the accident. Shortly after he arrived at work, at 7 a. m., he was pumping gas when he saw a car hit the curbing on the side of the highway, go out of control and hit the post 14 or 15 feet in front of it. He said the car was in the right hand lane going west, then he heard the car hit the curb where a piece of concrete sticks out and it went off the highway and hit the post. Later he said he didn’t actually know what the car hit, but when he heard the noise he saw the car going toward the post. He said nothing he saw indicated the car was going over the speed limit. He also said that over the years he had seen quite a few people hit the broken curb and he would repair the damaged tires once or twice a month.

Joseph Nunez, a resident of Camelot Drive, said that the broken curbing was sticking out, creating a hazard that had existed since 1972. He added that he saw three or more accidents in connection with it, with cars having one or two blowouts, and one lady losing control of her car and wrecking it in 1975.

The deposition of Colonel Michael W. Glassinger, a resident of Camelot Drive from 1972 until his death, was read at the trial. He had testified that he personally called the City and the State Highway Department prior to May of 1976 to complain about the accidents in connection with this curbing. He had also reported the problem to the Castle Manor Civic Association, whose spokesman said he would take action on the problem.

He said as a result of one of the previous accidents that he had personal knowledge of, an iron retention band had been left standing straight in the air and after six months the City had come out and cut it down. He also said that approximately one year after he moved to his home on Camelot Drive another car crashed into the same curbing. He explained that although he had not seen either accident happen, he had inspected the aftermath.

Boyd L. Gautreaux, an employee of the Louisiana Department. of Transportation and Development and a traffic engineer, testified that the breaks in the subject curbing could have been due to busses or traffic striking it. He said that he had seen the broken curbing jutting out three or four inches, but when shown pictures admitted that it looked a lot more severe than he recalled.

Leon Robert Blandían, Maintenance Superintendent for the Louisiana Department of Transportation and Development, stated that he knew of no complaints that were called into the department regarding this site, but that no actual records were kept of complaints called in. He did say, however, that if he had been aware of the condition of the curbing; he would not have let it go for weeks, although some other problems might have been given immediate priority over this one.

Robert Jackson, a foreman stationed at the Gentilly office of the Department of Transportation when the accident occurred, testified by deposition that part of his and his crew’s duties was to look for hazards and report them and put up barricades until they are repaired. He said if he had seen this curbing he would have reported it to Blandían, who would have certainly told him to fix it at least temporarily “before somebody had a wreck.”

Frank Heroy, Assistant Chief Location and Design Engineer, Office of Highway Transportation, said that the highway at the point of the accident conformed to the standards in existence at the time it was built, and that there is no record of the bus stop being added or any reconstruction, so there was no necessity for the Highway Department to upgrade the highway to current standards. He said that if a motorist were coming from east to west, the curbing at Cerise Street gives such an appearance that drivers normally tend to move to the left, but as they near the curbing the road begins to swing to the right, so they would move back to the right. He also said that the gutter in the photographs sticks out 18 or 24 inches, well into the permissible area of travel.

James Armstrong, an attorney, testified that he visited the roadway on June 12, 1976. He testified that he and Mr. Besnard measured the broken curbing and how far it protruded out into the roadway. He testified that his picture marked P-15 showed that the curbing extended at least 12 inches out into the roadway from the normal curbing. He also measured the vertical upset or rise of the highway caused by the broken pavement. He testified that the inside portion of the broken curbing measured 6 inches in height and the outside portion of the broken curbing measured 3 inches in height. He further testified that there was no white striping along the shoulder where the broken curbing existed.

Felicien Perrin, a registered civil and mechanical engineer with experience in street design and layout, testified that the white striping on the right hand side of the roadway definitely leads traffic into the curbing at Cerise; that there was, in fact, a narrowing of the roadway; that traffic in the left lane tends to go straight rather than take advantage of some widening of the left hand lane just past Cerise; that traffic narrows down toward the right; and that the left hand lane of traffic moves to the right as it approaches Cerise due to the curve in the traffic to the right shortly past Cerise.

In Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), and Willis v. State ex rel. Louisiana Department of Highways, 321 So.2d 819 (La.App. 1st Cir. 1975), the courts established that shoulders are included in this duty of maintenance of the highway department. Certainly curbings must also be maintained.

“It is generally accepted that ‘the Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The Department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the Department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it’ * * *.” (Emphasis ours.) Breaux v. Louisiana Dept. of Highways, 347 So.2d 1290 (La.App. 1st Cir. 1977), at p. 1293.

The evidence preponderates that, whether or not the Highway Department (Louisiana Department of Transportation and Development) had actual knowledge of the broken curbing, the condition had existed for years and the Department should have known of the situation and corrected it.

Regarding the question of when constructive knowledge of a dangerous condition exists, the court said in Gayle v. Department of Highways, 205 So.2d 775, 780-81 (La.App. 1st Cir. 1967):

“One is presumed to have constructive notice of a defect or dangerous condition when it is shown to have existed for such a long period of time that knowledge thereof can be presumed, or that it can be said that one ought to have had knowledge of the condition.”

The decision of whether a condition of a highway actually is a dangerous and hazardous one to an ordinary prudent driver is a factual one, and the court should consider physical aspects of the roadway, frequency of accidents at that place in the highway and testimony of expert witnesses in arriving at this factual determination.

In determining whether the plaintiff in a case of this sort is contributorily negligent, the court said in Reeves v. State, 80 So.2d 206, 210 (La.App. 2d Cir. 1955):

“The general rule is also well established and recognized in the jurisprudence of this state that a motorist using a pub-. lie highway has a right to presume and to act upon the presumption that the highway is safe for the usual and ordinary traffic, either in daytime or at night, and that he is not required to anticipate extraordinary danger, impediments or obstructions to which his attention has not been directed.
Blashfield’s Cyclopedia of Automobile Law and Practice, Volume 5A, 387, ‘Highways’, § 3320, states such rule as follows:
‘In the absence of notice to the contrary, there are certain assumptions which may be indulged by a motorist as to the condition of public streets and highways, whether he be traveling by day or night. Among these are: (a) That .the way is reasonably safe for travel and free from defects and unlawful obstructions; (b) That those charged with the duty of keeping it so have exercised a proper degree of diligence in so doing; (c) That it will not be obstructed unlawfully or in such a manner as to cause an injury to him while he is in the exercise of due and reasonable care; * * ”

In Rue v. State, Dept. of Highways, 372 So.2d 1197, 1199 (La.1979), the Court said:

“Under a simple ‘but-for’ analysis the accident would not have occurred had either the Highway Department not been negligent in failing to maintain the shoulder or the plaintiff not been negligent (and for present purposes we. assume her inadvertent meandering was negligence) in moving the vehicle onto the shoulder. But this does not conclude the inquiry. Focusing on plaintiff’s ‘substandard’ conduct the question is whether the risk of injury from striking an unexpected, negligently maintained highway shoulder was a risk reasonably related to plaintiff’s failure to drive entirely on the paved portion of the highway. We conclude that it was not. A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely the Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself travelling on or partially on, the shoulder.
“We conclude that plaintiff’s conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder. * * * ”

In Hudson v. State Department of Highways, 289 So.2d 505 (La.App. 3d Cir. 1974), plaintiff’s judgment against the Department of Highways was affirmed on appeal. In this case plaintiff attempted to pass another vehicle as it moved toward him, crowding in the passing lane. In order to avoid a possible impact, he veered to the left and went on to the “rollover” curbing on the south side of the paved portion of the highway. Shortly after climbing the “rollover” curb, the plaintiff’s left front and rear wheels struck a solid blunt concrete curbing which caused him to lose control of his truck. Both left tires blew out and rims of both left wheels were severely damaged in the way that could only be caused by a solid blunt object. The court concluded that the defect in question was hazardous and should have been repaired by the Highway Department and that it had either actual or constructive knowledge of its condition. The court further found that the plaintiff was not contributorily negligent.

In Parfait v. State Department of Highways, 334 So.2d 549 (La.App. 1st Cir. 1976), the plaintiff recovered a substantial judgment against the Department of Highways in excess of $300,000. The facts of this case revealed that the plaintiff was driving north at about 45 miles per hour when an oncoming south bound vehicle pulled into his lane, forcing him to take to the shoulder of the road to avoid a collision. While on the shoulder of the road, plaintiff’s vehicle, after driving along on the shoulder for some distance, struck a hole in the shoulder. The hole in the shoulder of the road measured from 6 to 12 inches deep. When plaintiff’s wheels struck one of these holes, he lost control of his car, ran across the highway and struck a large tree on the opposite side of the roadway. The trial court and the court of appeal found that plaintiff was not guilty of contributory negligence and that the Highway Department failed in its duty to properly maintain the shoulder of the road which resulted in a defect which proximately caused the accident. Though actual notice of the hole was not proven, the testimony of a resident of the area established that the holes had been there for sometime before the accident and that the only maintenance carried out by the Highway Department was to put shovels full of shell into the holes occasionally.

A complete reading of the record and the evidence does not disclose any error in the finding of fault by the Commissioner and Judge ad hoc, much less that manifest error essential if this court is to disturb the finding of the trial court. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We agree with the following observation by the Commissioner in his finding for the plaintiff:

“From the testimony adduced the Court is convinced that the projection and defect in the curbing existed on the date of the accident and for an indeterminate but substantial period of time preceding the date of the accident. It is also found that such amount of time is far in excess of the amount of time necessary for the highway department to have made itself aware of the existence of the defect, and to have properly repaired such.
“According to the testimony, U.S. 90, at the location of the accident, was used by the maintenance superintendent, the foreman, and maintenance crews on almost a daily basis. Because of such the Department, of Highways is charged with notice of the existence of the defect.
“The Court was unable to reach a conclusion with respect to how the displacement of the curb took place. It would seem from evidence shown that the displacement grew progressively worse after the accident. Similar conclusions could be reached for the time prior to the accident. In any event the degree of displacement had reached the point of perceivable danger months prior to the accident.
“The Department of Highways argues that the safe passage of 35,000 cars per , day is convincing evidence that the design, construction and repair of the highway at this point was adequate. The physical evidence refutes this. The curb-ings on the arc were shown to be overrun by vehicles to the extent that the elevations of the curbings were reduced. The design of the intersection with the bus stop lane deceptively invites driver to enter such lane presupposing that the highway was widened to the three lanes visible ahead. Instead, after entering such lane, a driver is immediately confronted with the first upright curbing constructed on the incoming highway. Thus it was shown that the design, construction and failure to maintain were all elements present at the time of the accident.
“The unexpected confrontation with these elements are not the risk of the driver, Mrs. Besnard. The duties of the Department of Highways, spelled out in the law, were not performed, and, as a consequence, it must respond in damages.”

It is our opinion that a dangerous or hazardous condition existed at the accident site; that the condition was the proximate cause of the accident; that plaintiff was free from contributory negligence; and that the Highway Department (Louisiana Department of Transportation and Development) violated their duty to maintain the curbings in a reasonably safe condition.

Further we find that the defective condition of the curbing which was dangerous to motorists existed on the date of the accident and for at least two years prior to the date of the accident and that the Highway Department should have known of the defective condition and repaired same. •

We next consider the damages allowed plaintiff by the trial court. Plaintiff Mary Besnard suffered severe pain and permanent injuries from the accident. She was unconscious when she was taken to Methodist Hospital where it was determined that she had either a fractured sternum or a severely injured costochrondral area, an abnormal EEG and what had appeared to be a coronary contusion. A plastic surgeon successfully performed surgery, but still, on close viewing, there is some visible pulling of the skin and some lines which are slightly apparent.

She also incurred a fracture of her right ankle, left knee and elbow. Mrs. Besnard was treated by Dr. H. L. Colcolough for shock, concussion, the abnormal EEG and contusion of the heart and left lung. After extended surgery she remained in the hospital from May 21, 1976 to June 19, 1976. After leaving the hospital she received physical therapy at home.

Mrs. Besnard had sustained a comminut-ed fracture of the right elbow (interarticu-lar fracture of the distal humerus). The splintered bone in the fractured joint was set back in place under open reduction, pinned in place and then put in a cast.

Plaintiff has residual and painful disability resulting from the fractures. She has stiffness in the elbow after activity and changes of weather. She has pain on the use of the arm, particularly as the result of repeated motions. Mrs. Besnard testified that she cannot, for example, peel a potato without her elbow hurting. In addition, she wakes up at night with pain in her elbow and stiffness of the joint. She cannot pick up anything heavy as it places strain on the injured elbow. Dr. Alain F. Cracco, the orthopaedic surgeon, further indicated that the elbow lacks 25 degrees of full flexion and 30 degrees in extension, and that further surgery may be necessary to reset the radial head. If this were done Mrs. Bes-nard would require one week of hospitalization and six weeks of treatment after surgery. Although surgery was not indicated at this time, Dr. Cracco suggested that because of her prolonged period of pain and discomfort and presence of traumatic arthritis in the elbow fracture, future surgery is not unlikely. He attributed arthritic changes in the elbow to the accident and estimated the permanent, partial disability to the right elbow at 50%. There is also a wide scar on the elbow, stretched in appearance, very visible and measures 3 to 4 inches.

Dr. Cracco also estimated the permanent partial disability at 45% of the left knee and 10% of the right ankle. Also plaintiff has a long, noticeable disfiguring scar on her left knee approximately 9 inches in length. Plaintiff, a young married woman, is very sensitive to her scars and as a result will not wear a dress or shorts.

Dr. Kenneth M. Dieffenbach, a plastic surgeon, testified that even with additional corrective surgery to repair the scars, they would still remain visible and bear a disfiguring mark.

Plaintiff testified that she tires easily when walking any distance; cannot stand for long periods of time; cannot go up stairs without difficulty; and cannot play volley ball, tennis, bowl or ski — all of which she enjoyed prior to the accident. Several pins and screws also remain in plaintiff’s injured joints. Mrs. Besnard’s physician also testified that she suffered great emotional upset as a result of having to send her child to Colorado to be cared for by her parents subsequent to the accident.

The Commissioner’s report, adopted by the trial court, recommended:

“For all of the pain and suffering and the residual impairment of physical functions to this twenty-six year old lady the Court recommends an award of $100,-000.00. The medical expenses were shown to be $14,939.29 to the date of trial. Lost wages for the period from the date of the accident, May 21, 1976 to March 14,1977 was shown to be $5,160.00. Additional time was lost when the hardware was removed from her body and she lost $224.00 working time. There being no showing made of an absolute need and/or desire for future medical attention, no award should be made for such.”

Under the Louisiana Supreme Court’s latest directives on the issue of quantum, as articulated in Reck v. Stevens, 373 So.2d 498, 501 (1979), the Court said:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
“In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) ‘similar’ injuries, see Coco [v. Winston Industries, Inc.,] at 341 So.2d [332] 334 [La.1977].
“However, absent an initial determination that the trial court’s very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314 (La.1979).”

We find that the trial court has not abused the “much discretion” allowed in its finding of facts and the making of its award of damages, and we affirm the judgment of the trial court. The defendant-appellant is to pay all costs of this appeal.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Hilda FACIANE v. Janice CARTER, New Orleans Public Service, Inc., and Southeastern Fidelity Insurance Company.
    No. 10861.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Darleen M. Jacobs, . New Orleans, for plaintiff-appellee.
    A. R. Christovich, Jr., New Orleans, for defendants-appellants.
    Nelson, Nelson & Lombard, Ltd., Irving H. Koch, New Orleans, for defendant-appellant Southeastern Fidelity Ins. Co.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

In this personal injury suit arising out of an accident between an automobile and a New Orleans Public Service, Inc. bus, the trial judge awarded a judgment in favor of the plaintiff-automobile passenger for the following amounts:

Past pain and suffering. $ 50,000.00

Future pain and suffering. 100,000.00

Past lost income & benefits .... 16,332.34

Diminished earning capacity & loss of retirement benefits . . . 50,000.00

Medical expenses . 18,988.16

TOTAL. $235,320.50

Based on an apparent finding of concurrent negligence, New Orleans Public Service, Inc. and Southeastern Fidelity Insurance Company (the liability insurer for the driver of the automobile) were cast in judgment in solido, subject to Southeastern’s liability limit of $5,000.00.

New Orleans Public Service, Inc. (NOP-SI), appealing, claims the trial judge erred in finding negligence on the part of the bus driver. Alternatively, NOPSI complains the award is excessive. In a cross-appeal, plaintiff complains of the inadequacy of the award.

Between 6:00 and 6:30 p. m. on April 7, 1977, plaintiff was riding in the right-front seat of an automobile owned by her but being driven by Carleen Jacobs in a westerly direction on Chef Menteur Highway. The NOPSI bus was also traveling on this highway in a westerly direction. The highway, as it approaches the Industrial Canal bridge, has three westerly traffic lanes and three easterly traffic lanes, separated by a median. The three lanes merge into two lanes in each direction crossing the bridge. The automobile was traveling in the left traffic lane. The bus, traveling in the extreme right traffic lane, was merging left in order to cross the bridge in the right lane of the two bridge-traffic lanes. While crossing the bridge, the left front bumper of the bus struck the middle of the right door of the automobile, apparently near where plaintiff was seated. The automobile damage amounted to $280.16. Of the three occupants of the automobile, only plaintiff was injured.

According to plaintiff’s version of the accident, as the automobile was entering the bridge, the bus driver, attempting to merge left while approaching the bridge, crossed over into and invaded the automobile’s lane of traffic, thereby striking the right door of the vehicle. Plaintiff’s version is supported by her own testimony and by that of the driver and the other passenger of the automobile. According to defendant NOPSI’s version of the accident, as stated by the bus driver, when the two vehicles reached the middle of the bridge the bus was traveling in the right lane of the two bridge-traffic lanes. The driver testified the automobile (traveling in the left traffic lane) in an attempt to avoid heavy traffic traveling in the opposite direction, came into and invaded the bus lane of traffic, striking the left front bumper of the bus.

The bus driver had been employed by Public Service for approximately five weeks at the time of the accident. A trainee, she was accompanied on the route by her trainer, who was sitting directly behind her when the accident occurred. Although the bus driver testified, the trainer did not. Unexplained is whether there were passengers on the bus at the time of the accident or whether the trainer was unavailable to testify. When we consider the testimony of the automobile driver and its occupants, together with the testimony of the bus driver, as well as the physical surroundings of the merger to the left of the three traffic lanes into two, we are led to conclude it is more probable than not that the Public Service bus invaded the automobile’s lane of traffic. We find no manifest error in the judgment .in favor of the plaintiff and against New Orleans Public Service, Inc.

QUANTUM

At the outset, NOPSI makes no claim that the medical expenses in the sum of $18,988.16 were erroneously awarded. Nor is it seriously contended that the award for past lost income and benefits, in the sum of $16,332.34, is an abuse of the trial court’s discretion. Suffice it to say that Lilly Mae Jarrell, who is responsible for the payroll and payroll records at Southeast Memorial Hospital (where plaintiff had been employed at the time of the accident), testified that plaintiff’s lost wages and benefits total $16,332.34. An economist witness computed the total lost wages, health insurance and life insurance benefits up to the date of the trial at $15,180.04. We cannot say the trial judge erred when he accepted the lost wages and benefits as determined by the representative from the hospital, plaintiff’s employer.

The primary thr.ust of NOPSI’s attack on quantum is at the $50,000.00 award for past pain and suffering, the $100,000.00 award for future pain and suffering, and the $50,000.00 award for diminished earning capacity and loss of retirement benefits.

DIMINISHED EARNING CAPACITY AND LOSS OF RETIREMENT BENEFITS

At the time of the accident in which she suffered neck and back injury (hereinafter more fully discussed) plaintiff was fifty-four years of age. She had been employed by Southeast Memorial Hospital for thirteen and one-half years. According to Lilly Jarrell, the personnel record keeper at the hospital, Hilda Faciane would have been eligible for a $327.61 monthly pension after she had completed fifteen years of service. In addition, she would have received life insurance benefits and hospitalization, along with the pension, for the remainder of her life.

Plaintiff was employed at the hospital from March 2, 1964 until July 14,1975 as an attendant responsible for the care of mental patients. Her duties included lifting patients when necessary. In July 1975 she was promoted to a psychiatric attendant, which involved administering medication to the patients and accompanying the patients off the hospital grounds. This job also required lifting, pulling and pushing her patients, particularly when they became violent. Some overhead arm movement was also necessary. Subsequent to her injury, Mrs. Faciane was tranf erred to the job of a beautician; however, because of a neck brace, pain and restriction of movement resulting from the injury sustained in the accident, she was not able to continue with her employment. Plaintiff was paid through September 8,1977 and was granted a leave without pay from September 8,1977 until her termination of employment on December 28, 1977. Because of her loss of employment at the hospital caused by the injuries sustained in the accident, plaintiff was deprived one and one-half years short of qualifying for a fifteen-year pension.

Mrs. Faciane underwent surgery on two different occasions, the first for removal of two cervical discs and a fusion and the second for decompression of a compressed nerve caused by a displacement of a fused graft.. However, New Orleans Public Service, Inc. contends that plaintiff failed to show that she was unable to become reemployed as a beautician after her condition had improved. Indeed, NOPSI points out that plaintiff had reapplied approximately two months before the trial date (March 14, 1979) for a job as a beautician at the Southeast Memorial Hospital. Defendant also calls to our attention a report from plaintiff’s treating physician dated November 3, 1978, in which he states that on that date Hilda Faciane was completely free of pain down the left arm; that she continued to have some mild degree of limitation of motion of the neck; however, she had adjusted without much difficulty. In that report, the doctor further stated that plaintiff was happy with the obtained results, and he encouraged her to become more active. According to NOPSI, reemployment at the hospital as a beautician was within her physical capabilities, would result in the continued accrual of retirement benefits and would result in no loss of future income. We do not agree.

Dr. Amilear Correa, a neurosurgeon, was plaintiff’s treating physician and performed the disc removal and fusion operation, and the subsequent surgical decompression. of the nerve to free the compressed nerve root after a bone graft collapse. He testified, in deposition, that plaintiff had a 30% residual disability of the body as a result of the accident; that, when she raised her arms above her head, the nerve roots would become stretched and irritated, causing pain; and that plaintiff was advised to avoid any heavy lifting or elevation of the arms above shoulder level. According to the doctor, Faciane cannot carry out any duties as a nurse’s aid or any duties requiring heavy lifting of patients. He stated, finally, that plaintiff had reached “maximum improvement”.

In connection with the question of plaintiff’s possible reemployment, Lilly Jarrell stated that there were no job openings at the hospital for a beautician who had a 30% permanent disability of the body, who could not lift overhead with her arms or push or pull anything of greater weight than twenty pounds. This witness stated that such a person was just not capable of doing the work. She stated that while the hospital may be required to employ a person with a disability if a vacancy occurs, she does not feel that plaintiff is capable of doing the work. She added that when a vacancy occurs, persons working in the hospital have a preference for a job over persons who are outsiders, and plaintiff now is “an outsider.”

Dr. Philip W. Jeffress, an economist, computed plaintiff’s life expectancy at 26 years from the date of trial, and her work life expectancy at 10.2 years. Based on an annual income of $9,300.00, computed at monthly earnings in the sum of $711.00 at the time of the accident, and taking into consideration a 5% discount from the date of trial to the end of the work-life expectancy, plaintiff’s loss of income, according to the expert, would amount to $72,900.00. With a 3% inflation factor included, the figure for loss of future earnings, according to the economist, amounts to $82,800.00. From these figures the economist deducted anticipated minimum wage earnings from the date of trial to the end of plaintiff’s work-life expectancy. These deducted earnings, using the same 5% discount, amount to $25,800.00 and, adjusted by a 3% inflation ' factor, amount to $26,700.00. Based on this method of computation, according to the expert, plaintiff’s future loss of wages amounted to approximately $56,-000.00. Figured on a 26-year life expectancy, if plaintiff had continued to work for a fifteen-year period, her pénsion benefits (discounted at 5% and necessarily without the inflation factor) would amount to $57,-606.00.

Considering that the trial judge was confronted with the testimony outlined herein-above, relating to the probability of plaintiff’s inability to become employed at the hospital, as well as the testimony of the economist on future loss of retirement benefits, we cannot say that an award for diminished earning capacity and loss of retirement benefits in the sum of $50,000.00 constituted an abuse of the trial court’s discretion.

The economist’s error in basing his computations on age fifty-two for plaintiff rather than her correct age, fifty-four, was insignificant under the circumstances here and does not affect our conclusion.

PAST PAIN AND SUFFERING AND FUTURE PAIN AND SUFFERING

The total amount of this award is $150,-000.00. Subsequent to the accident plaintiff was seen by Dr. Lucas A. Di Leo and, after treatment for approximately six weeks, she was referred to Doctor Correa. He saw plaintiff on August 2, 1977. On this first visit she complained of neck and shoulder pain which had developed a few days after the accident. She had been treated by Dr. Di Leo with muscle relaxants and pain medications without improvement. According to Dr. Correa, plaintiff had mild arthritic changes of the spine and surgical region superimposed by the injury from the automobile accident. This caused either a cervical strain or some pre-existing degenerative changes to become symptomatic. The doctor was of the opinion that the automobile accident was the contributing or causing factor of plaintiff’s problem.

Plaintiff was hospitalized in Methodist Hospital on August 8, 1977 where conservative treatment with muscle relaxants, physical therapy and pain medication was administered. No improvement was exhibited. A discogram showed degeneration and abnormality at the C5, C6 disc. During hospitalization, Faciane complained “bitterly” of pain and on August 23, 1977 underwent a cervical discectomy at C5-6 and C6-7. Fusion at both levels was performed. She was discharged on September 2, 1977. However, within 30 days Mrs. Faciane developed neck discomfort and bilateral arm pain. Post-operative x-rays showed that the bone graft had partially collapsed and become displaced.

On a September 30, 1977 visit to Dr. Correa, plaintiff complained of pain in the neck and down both arms. A collar was recommended and muscle relaxant and pain medication prescribed. Complaints of pain persisted and plaintiff was again hospitalized on October 21, 1977 at Methodist Hospital. Physical therapy was employed, a rigid neck brace was used, and pain relievers and sedatives were prescribed. Because of plaintiff’s depressed state, she was seen by a psychiatrist at the hospital. On October 27, 1977 the psychiatric evaluation by Dr. Roger Anastasio was “adjustment reaction of adulthood with features of depression.” On November 7, 1977 she was discharged.

The neck brace plaintiff used during her second hospital visit was the second brace recommended and apparently afforded some relief from pain. However, an examination of March 10, 1978 indicated continued neck and arm pain. Plaintiff was advised to continue use of the brace. She was seen again on June 2, 1978. From x-rays taken at that time and plaintiff’s continued complaints of pain, Dr. Alain Cracco (an orthopedist who had been called in on consultation by Dr. Correa) and Dr. Correa were of the impression there existed a decompression of the nerve root which apparently became depressed by the collapse of the bone after the first surgery.

On September 5, 1978 plaintiff was admitted to Chalmette General Hospital where she underwent surgery to decompress or free the nerve root inbetween C3-4, C4-5, and C5-6 on the left. She was discharged from the hospital on September 21, 1978. On November 3, 1978 Mrs. Fa-ciane was seen as an outpatient and at that time appeared to be free of arm pain. She was advised to avoid heavy lifting and elevation of the arm over the shoulder level. However, she again complained of pain on February 6, 1979. Dr. Correa was of the opinion that plaintiff had sustained a 30% disability of the body and had reached “maximum improvement.” He was unable to determine how long the disability would exist.

It was Dr. Correa’s opinion that a causal relationship existed between the accident, the injury and plaintiff’s disability. It was Dr. Alain Cracco’s opinion also that the degeneration of the cervical spine was aggravated by the accident and injury. Dr. Cracco’s testimony of plaintiff’s pain, treatment and hospitalization substantially corroborates and supports the testimony of Dr. Correa.

Plaintiff testified that she commenced to suffer neck and shoulder pain shortly after the accident that gradually became worse. She gave a history of continued pain from the date of the accident to the date of trial, March 14, 1979, a period of approximately two years.

In view of the prolonged and sometimes bitter pain suffered by plaintiff, accompanied by three periods of hospitalization requiring two operations and the use of neck braces and collars during this time, we conclude the $150,000.00 award for past and future pain and suffering was neither excessive nor inadequate.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . Southeastern also appealed the judgment. On the day of argument before this court, however, Southeastern filed a written motion requesting its appeal be dismissed with prejudice. We granted that motion, and therefore will pretermit discussion of Southeastern’s liability.

      . In addition to the driver and to plaintiff, Robert Jacobs, plaintiffs divorced husband and Carleen Jacobs’ father, was sitting in the rear seat.

      . This computation is based on plaintiffs age at 52 years on the date of the accident on April 7, 1977. In fact, plaintiff was 54 years on that date.

      . According to the income tax returns, plaintiffs 1976 earnings were $5,827. Her 1975 earnings were $6,088. According to plaintiff, her earnings were reduced because of extended illness resulting from hepatitis infection.

      . Use of 5% discount and 3% inflation factors is not inconsistent with recent jurisprudence. See Roundtree v. Technical Welding & Fabrication Co., 364 So.2d 1325 (La.App. 4th Cir. 1978), writ refused, La., 367 So.2d 389 (6% discount, 3'A% inflation); Robinson v. Graves, 332 So.2d 303 (La.App. 4th Cir. 1976), reversed on other grounds, La., 343 So.2d 147 (6% discount, 3% inflation); Morgan v. Liberty Mutual Ins. Co., 323 So.2d 855 (La.App. 4th Cir. 1975), application dismissed, La., 325 So.2d 282 (4.8% discount, 3.8% inflation); Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir. 1978) (6‘/s% discount, 3% productivity increase, no allowance for inflation); Johnson v. International Ins. Co., 347 So.2d 1279 (La.App. 1st Cir. 1977), writ denied, La., 350 So.2d 1225 (6% discount, 4% inflation, 3% productivity increase.)


text:
    Mrs. Judith Homes JOHNSON v. Norman L. JOHNSON.
    Nos. 10967, 11185.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.
    Reed & Reed, Floyd J. Reed and Bruce G. Reed, New Orleans, for plaintiff-appellant.
    Mmahat, Gagliano, Duffy & Giordano, Lucas J. Giordano, Metairie, for defendant-appellee.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

Judith Homes Johnson and Norman L. Johnson were divorced in 1975 and Mrs. Johnson was awarded the custody, by a consent judgment, of the three children, ages 12, 11 and 10 years. On July 27,1979, after a protracted hearing over several days, the trial judge transferred the custody of the children to the father. In November 1979 the trial judge denied the mother’s request to transfer custody to her. The mother appealed both judgments and the cases were consolidated before this court. We affirm.

On appeal, the mother contends the judge failed to apply the proper legal principles in transferring custody to the father and refusing to return custody to her. She contends he should have applied the principles recognized by the Louisiana Supreme Court in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) and Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979), that the criterion for the change of custody is a finding that the mother is unfit and that the children’s continued presence in the environment provided by the mother is so detrimental to the children as to justify removing them from the environment to which they have become accustomed. Further, under the Fulco rule, the party seeking the change must prove the environment would be better with the other parent.

The father, on the other hand, contends the heavy burden of the Fulco rule is inapplicable to this situation because the mother had custody by virtue of a consent judgment rather than a “considered decree.”

Our courts have held that the “double burden” rule does not apply except where there is a considered determination of custody, Gulino v. Gulino, 303 So.2d 299 (La.App. 1st Cir. 1974), and where there has been no considered decree, the test to be applied is what is in the best interest of the children. LSA-C.C. art. 157, as amended by Act 448 of 1977; Spencer v. Talabock, 370 So.2d 684 (La.App. 4th Cir. 1979); Hays v. Hays, 365 So.2d 563 (La.App. 1st Cir. 1978).

Nevertheless, we agree with the father’s contention that no matter whether or not the double burden rule was applied, the evidence presented shows that the transfer of custody from the mother to the father was proper. Although the major factors enunciated by the trial judge in changing custody would not mandate a transfer of custody, there is a plethora of other evidence in the record to support the custody change to the father. Accordingly, we affirm the judgment of the trial court.'

A summary of the trial judge’s reasons for judgment and of the evidence in the record is provided in an unpublished appendix to this opinion.

AFFIRMED.

      . The pertinent provision of Art. 157 reads, “In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or wife, in accordance with the best interest of the child or children.” We note, however, the jurisprudence has established a rebuttable presumption that the interest of the child will be better served by placing him in custody of the mother. Fulco v. Fulco, supra; Doyle v. Doyle, 371 So.2d 344 (La.App. 4th Cir. 1979). Art. 157 was amended again, by Act 718 of 1979, to add, after the phrase quoted above, “without any preference being given on the basis of the sex of the parent.” However, it is questionable whether this amendment would apply to this case, because it was not in effect at the time this rule was tried.


text:
    Warren LESTER v. REBEL CRANE AND SERVICE COMPANY and Insurance Company of North America.
    No. 11106.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.

      Harold L. Molaison, J. William Starr, Gretna, for plaintiff-appellant.
    Young, McMahon & Levert, Robert J. Young, Jr., New Orleans, for defendants-appellees.
    Before GULOTTA, BOUTALL and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff appeals from a trial court judgment maintaining an exception of prescription to plaintiff’s suit filed on February 28, 1979 for total and permanent weekly workmen’s compensation payments. An exception of prematurity to plaintiff’s suit for medical expenses was overruled.

Plaintiff-appellant, a dispatcher and assistant to the president of Rebel Crane and Service Company, was shot three times by an intruder when he entered the office of his employer on the morning of June 15, 1974. As a result he suffered a flesh wound of the back below the shoulder blade, a wound of the upper left arm and an abdominal wound which lacerated the bowel, perforated the stomach, liver, diaphragm and left lung — with collapse of the lung and a massive hemorrhage. He immediately underwent operations and by August 9, 1974 was released for full duty by his attending physician. Subsequently at various times between September 1974 and April 1978, Lester, had four additional incisional hernia operations.

Defendant Rebel Crane continued to pay plaintiff full salary at all times including time lost during periods of recovery, less any amounts received as workmen’s compensation payments. In March of 1977 and April of 1978, Lester had additional inci-sional hernia operations unrelated to the earlier incisional hernia operations. Although at these times of recovery plaintiff received no workmen’s compensation, his employer continued to pay his full salary. The last payment of workmen’s compensation was on May 5, 1975 and the last medical bills were paid on August 29, 1978.

The issue before us is whether or not plaintiff’s claim for workmen’s compensation benefits has prescribed. If the claim has prescribed then the court must determine if defendant’s continued payment of full salary after compensation payments stopped on May 5, 1975, even during plaintiff’s recovery time from operations in March of 1977 and April of 1978, was intended to lull Mr. Lester into a false sense of security thereby causing him to forgo prosecution of his claim for workmen’s compensation.

Plaintiff relies on Landry v. Ferguson, 279 So.2d 185 (La.1973), in support of his position that an employer who lulls an injured employee into a false sense of security thereby causing him to forgo timely prosecution of his claim for workmen’s compensation payments cannot then rely' on prescription as a defense to plaintiff’s claims. However, the trial court found Mr. Lester was not lulled into a sense of false security by any action of defendant Rebel Crane within the intention of Landry, supra. We do not find error in this conclusion by the trial judge. We might point out that the testimony established that it was company policy to pay permanent employees their full salaries when they were out ill, even when they were not entitled to workmen’s compensation benefits, and that since Mr. Lester was a permanent employee, he was always paid full salary for all injuries or illnesses, and, in this case, the amount of compensation benefits he received was simply deducted.

We further agree with the trial court’s finding that plaintiff’s claim had prescribed under the provisions of LSA-R.S. 23:1209, which states:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration' of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

The suit was brought more than two years after the accident occurred. In Bolden v. Georgia Cas. & Sur. Co., 363 So.2d 419 (La.1978), relied on by plaintiff, the injury had manifested itself within two years of the accident. In the instant case, the last compensation payment was made on May 5,1975 and suit for benefits was not filed until February 28, 1979. We agree that under the clear terms of LSA-R.S. 23:1209 plaintiff’s claim has prescribed.

The trial court maintained the plaintiff’s suit for medical expenses and this part of the judgment has not been appealed by the defendants, Rebel Crane and Service Company and Insurance Company of North America.

For the reasons assigned herein the judgment of the trial court is affirmed. Costs of this appeal are to be paid by plaintiff.

AFFIRMED.