author: MELYYN J. PEREZ, Judge Pro Tern.

text:
    Dave POWELL v. TAC AMUSEMENT COMPANY.
    No. 5-196.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Silvestri, Marinaro & Massicot, Anthony L. Marinaro, New Orleans, for plaintiff-appellant.
    Lawrence L. Lagarde, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL and GAUDIN, JJ., and PEREZ, J. Pro Tern.
   MELYYN J. PEREZ, Judge Pro Tern.

On March 23, 1976, Dave Powell, plaintiff-appellant, age 53, sustained a fracture of his right foot while in the employ of Tac Amusement Company. He alleges he was helping unload pool tables from the company truck when the table fell and struck him.

The plaintiff-appellant was paid workmen’s compensation benefits and all medical expenses through October, 1976 when he was released for light duty. He returned to work briefly, then alleged he was still in substantial pain and could not work at all. He was offered another job by Tac, but he claims that he is totally disabled and seeks further compensation.

The plaintiff-appellant had been employed by Tac Amusement for approximately 14 years and was being paid a regular salary of $125.00 per week and also did clean-up work occasionally for Tac for which he was paid a nominal amount.

In addition to the workmen’s compensation suit that plaintiff-appellant filed, there was a tort action against Tac Amusement in proceedings No. 197-021 and styled “Dave Powell vs. Tac Amusement Co., Inc., et al”. He was unsuccessful in those proceedings, and plaintiff-appellant and defendant-appellee jointly moved the Court to decide the workmen’s compensation suit on the basis of the transcript and testimony adduced from the tort action. No treating physician or other medical expert testified at the trial. The trial judge read the same transcript that we read, and therefore the usual rule that the trial judge was in a better position to evaluate the credibility of these witnesses than we are now, is not applicable in this workmen’s compensation case, and the question before the Court was whether the plaintiff-appellant could return to work based on the medical testimony obtained during the trial. The actual credibility of the plaintiff-appellant also became an issue in this matter.

Benefits of workmen’s compensation act are liberally interpreted in favor of the claimant though he is still required to prove his claim by a fair preponderance of the evidence and to a legal certainity. Powell v. Patterson Truck Lines, Inc., 228 So.2d 254 (La.App.1969).

It is also true that rules and procedures are construed liberally in favor of the claimant in workmen’s compensation actions and the claimant’s testimony may be entitled to more weight on same issues than is normally the case, though it must be supported and corroborated by the surrounded facts and circumstances. Freeman v. Standard Materials, Inc., 246 So.2d 258, writ denied, 248 So.2d 334.

To determine whether or not the plaintiff-appellant proved his claim by a fair preponderance of the evidence, we must look to the medical testimony of the numerous physicians who treated him.

After his injury on March 23, 1976, Dave Powell was first seen by Dr. Ralph McDo-nough. His diagnosis was that the plaintiff had abrasions along the medial side of his right leg from below the knee and including the right foot. There was also swelling and tenderness over the upper portion of the foot. Dr. McDonough saw him again on March 26, 1976 and advised Dave Powell to seek the services of an orthopedic doctor.

He then saw Dr. George Berkett that same day and the doctor concurred in Dr. McDonough’s findings.

Dave Powell then visited Dr. McDo-nough’s office on April 9, 1976 when a plastic cast was placed on his foot and removed with no complications several weeks later.

Dr. Berkett then had occasion to write to Dr. McDonough in May, 1976 and advised the doctor that the foot was moving normally.

Dr. McDonough’s testimony indicated that the abrasions and fractures of the foot were all healed the last time he saw him on June 17, 1976.

Dave Powell was then treated by Dr. Claude Williams who hospitalized him for a very short period of time and removed plantar fascia module from the sole of his foot, and advised plaintiff-appellant to return to work on September 22, 1976.

Dave Powell testified that in his opinion his leg had not healed and he was advised to see a psychiatrist. He was then treated by Dr. C.B. Scrignar, phychiatrist, from November 1,1979 to June 16,1980. Dr. Scrig-nar’s opinion contradicted that of the other physicians and he indicated that Dave Powell was not able to return to work and that said inability to return to work was due to a “conversion reaction”. Dr. Scrignar describes this “conversion reaction” as a complex series of events and of Dave Powell’s reactions to those events. He claims that Mr. Powell, having very little education, became frustrated and actually believed that he was paralyzed in that leg. Dr. Scrignar felt that Dave Powell had been told or was led to believe by other physicians that nothing more could be done for him, and that he reacted to this belief, either rightfully or wrongfully. Dr. Scrig-nar stated that this confusion and anxiety on the part of Dave Powell elicited a “conversion reaction”. In addition, Dr. Scrignar felt that Dave Powell’s current condition was directly related to the accident which occurred on March 23, 1976.

Several other treating physicians spoke of this “conversion reaction”, and Dr. Claude Williams and Dr. William Albert Martin stated there was no medical basis for linking the alleged nerve damage to plaintiff’s foot because it only manifested itself some seven (7) months after the accident. Both Dr. Williams and Dr. Martin stated that any alleged nerve damage to Powell’s foot was not caused by the accident since Powell made no complaints of same until some seven months after the accident.

In addition thereto, we have the testimony of Dr. Herman Colomb who examined the plaintiff on one occasion and felt that any alleged “conversion reaction” could not be traced back to Mr. Powell’s accident.

The overwhelming weight of the medical testimony indicates that Dave Powell could return to work. The. trial judge, in his reasons for judgment, felt that based on the testimony of Drs. William, Martin and Co-lomb, plaintiff was able to return to work. In October, 1976, the trial judge found further that there was insufficient medical evidence to support an alleged “conversion reaction”, and that there was no medical basis for linking the nerve damage to plaintiff’s foot to the accident itself. The trial judge also took note of the testimony of Dr. Co-lomb and Mr. Elmo Bienvenu and Anthony Taffaro regarding Dave Powell’s spry movements when he was unaware that anyone was observing him. Therefore, the credibility of the witness himself was taken into consideration by the trial judge.

We also have the records of Charity Hospital that were introduced into evidence, and a notation therein indicated that Dave Powell was malingering. Plaintiff-appellant cited the case of Muse v. Sentry Insurance Co. 269 So.2d 609, which stated that compensation awards are allowed for disability resulting from neurosis caused by an injury in the course of employment and that there is no necessity that there be physical disability.

However, taking into consideration all of the medical testimony adduced, the great majority of the treating physicians, who were numerous, felt that there was no connection between the nerve damage experienced by Dave Powell some seven months after the accident and resulting diagnosis of and a “conversion reaction” thereto. For the above and foregoing reasons, the judgment of the lower court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: DUFRESNE, Judge.

license: Public Domain

text:
    MAJESTIC FLOOR COVERINGS, INC. v. Michael K. LAWSON.
    No. 5-317.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      C. Lee Drake, Metairie, for plaintiff-appellant.
    George Scariano, Metairie, for defendant-appellee.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This appeal comes to us from a suit to recover money owed on an open account. Majestic Floor Coverings, Inc. (plaintiff) instituted suit against Michael K. Lawson, (defendant) to enforce the payment for flooring materials delivered to defendant and for charges for installation. At trial the defendant argued that the merchandise was sold to a corporation which he merely represented as an agent, namely, Orleans Maintenance Company, Inc. (Orleans) and as such, defendant contended that he could not be held personally liable for the indebtedness. The plaintiff argues that at all times when dealing with the defendant, the plaintiff’s president, Peter Oddo, believed he was negotiating with the defendant personally, only doing business as Orleans Maintenance, a noncorporate proprietorship. The trial court concluded that the plaintiff failed to prove its case by a preponderance of the evidence against the defendant, and thereby ruled in favor of defendant and against the plaintiff. From this judgment the plaintiff appeals.

The resolution of this appeal can be found in the determination of the following issues:

(1) Whether the evidence adduced at trial sufficiently supports the findings of the trial court, that the defendant was not acting personally, rather through his agency status representing a corporate entity and;
(2) Assuming that the defendant was acting through the existence of a corporation, was this artificial being a mere shell, allowing the court to pierce the corporate veil to find defendant individually liable.

As we have stated in innumerable opinions, the trial court is granted much discretion in its determination of facts and its conclusions will not be disturbed unless the record shows that manifest error has been committed. Canter v. Koehring Company, 283 So.2d 716 (La.1973). This legal principle of “manifest error” means the trial judge must be “clearly wrong” in his resolution of the case. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

A full review of the record does not show the trial court was clearly wrong. The record here is clear and contains sufficient evidence to establish the existence of a corporation and as a result, the defendant was acting within the limits of his agency status relative to this corporate entity.

After concluding that a corporation did exist, was it such that it constituted a mere shell or sham, thereby allowing the court to “pierce its corporate veil” and find the defendant personally liable?

The fundamental legal principle is that a corporation is a distinct legal entity, separate from the individual (or individuals) who comprise it. LSA-C.C. art. 435, 437; LSA-R.S. 12:93(B). There are a few limited situations in which a party can reach an individual shareholder by “piercing the corporate veil”, thus making the individual liable for debts incurred by the corporation.

This can be done when a shareholder practices fraud upon a third person through the corporation or disregards the corporate entity to such an extent that the individualities of the corporation and shareholder cease to exist; the corporation no longer exists as an individual distinguishable from the shareholder. Whether this doctrine of “piercing of the corporate veil” is to be imposed is determined by the totality of the circumstances. Smith-Hearron v. Frazier, Inc., et al., 352 So.2d 263 (La.App. 2nd Cir.1977). Furthermore, if individual liability will be assigned to a shareholder (or shareholders) is primarily a factual finding to be made by the trial court Liberto v. Villard, 386 So.2d 930 (La.App. 3rd Cir.1980), and Smith-Hearron v. Frazier, Inc., supra.

Finally, the law is clear in Louisiana, that the concept of the corporation as a separate entity is felt to be beneficial and is disregarded only in exceptional circumstances. Kingsman Enterprises v. Bakerfield Electric Company, 339 So.2d 1280 (La.App. 1st Cir.1976).

This issue was not presented to the trial court, however, our review of the entire record does not support or give us grounds to “pierce the corporate veil”. Only in exceptional circumstances should the corporate entity be disregarded. Kingsman Enterprises v. Bakerfield Electric Company, supra.

The record fully reveals that in the transaction with the plaintiff, Michael K. Lawson at all times indicated he was acting on behalf of Orleans Material Company, Inc. and was not acting in a personal capacity.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Odeal A. ALEXIS, Phyllis G. Alexis and Cheryl Alexis Parquet v. LUMBERMENS MUTUAL CASUALTY COMPANY.
    No. 5-296.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Robert R. Faucheux, Jr., Reserve, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Joseph J. Lowenthal, Jr., New Orleans, for defendant-appellant.
    Before CHEHARDY, BOWES and DU-FRESNE, JJ.
   DUFRESNE, Judge.

The sole issue to be resolved here is whether the carrier of an uninsured motorist automobile policy is liable under that policy for damages suffered by the insurer when the tortfeasor has adequate liability insurance to respond to all damages, but the insured’s right to recover from the tort-feasor has prescribed. We conclude that the carrier is not liable under these circumstances- because uninsured motorist coverage applies only where the tortfeasor is uninsured or underinsured. It does not apply where prescription bars recovery against an adequately insured tortfeasor.

Plaintiffs-appellants, Phyllis Alexis, the insured, and two passengers in her car, all claim to have been injured in an automobile accident. The Alexis car was struck by a rental car owned by Budget Rent-A-Car System, Inc., and driven by its lessee, Stephanie Prunty.

Plaintiffs originally filed suit against Budget and Prunty claiming total damages of $35,000. Because that suit was filed more than one year after the accident, recovery was barred and the suit was dismissed.

Thereupon, plaintiffs brought suit against Lumbermens Mutual Casualty Co., the carrier of uninsured motorist coverage on the Alexis car, and defendant-appellee here. They again sought damages of $35,-000.

Lumbermens moved for summary judgment on the grounds that the owner and driver of the offending car carried liability insurance applicable to the accident in the amount of $125,000, that there was thus no uninsured or underinsured owner or driver involved, and therefore that Lumbermens’ uninsured motorist coverage did not apply to this accident. These facts being shown by admissions and affidavits of the parties, and there being no genuine issue as to any other material facts, summary judgment in defendant’s favor was granted. It is from this judgment that plaintiffs bring this appeal.

The Louisiana Uninsured Motorist Statute, La.R.S.A. 22:1406(D)(1)(a), provides that coverage under its provisions is

“[F]or the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles. (Emphasis added)

Plaintiffs do not contend here that the Budget car was not the one that struck them, or that this motor vehicle was uninsured or underinsured. Rather, they contend that because prescription bars recovery, that Budget and Prunty should be considered as uninsured, and therefore that recovery should be permitted them under the uninsured motorist coverage provided by Lumbermens.

While this issue is res nova, we do not hesitate in rejecting plaintiffs claims. The statute is clear that uninsured motorist coverage applies only where the offending motor vehicle is uninsured’ or underinsured. Here, the Budget car was insured for $125,-000, over three times the aggregate amount sought in the petition. If plaintiffs had sued Budget and Prunty in time and proved liability, they would have recovered. That they failed to do so cannot now be urged as grounds to extend the uninsured motorist coverage beyond the limits mandated by statute.

The court is not insensitive to plaintiffs’ plight. Sympathy, however, does not permit us to allow them recovery against an insurer whose statutorily regulated policy does not apply where the tortfeasor is adequately insured, simply because they or their attorney inadvertently allowed prescription to run against the tortfeasor.

Because we conclude that plaintiffs have no legal right to recover from Lumbermens under the uninsured motorist coverage on the Alexis car, no other issue raised on appeal need be considered here.

For the foregoing reasons, the judgment appealed from is affirmed.

AFFIRMED.


author: CURRAULT, Judge.

text:
    Betty Gail PRICE, as Tutrix of and on Behalf of the Minor Tikisha PRICE v. AIRCO, INC., et al. Laura Mae PRICE, et al. v. AVONDALE SHIPYARDS, INC.
    Nos. 5-345, 5-346.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Jan. 17, 1983.

      Claude D. Vasser, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant.
    Kenny M. Charbonnet, Jack J. Charbon-net, Charbonnet & Charbonnet, Paul A. Bo-nin, New Orleans, for plaintiffs-appellees.
    Before CHEHARDY, KLIEBERT, and CURRAULT, JJ.
   CURRAULT, Judge.

Defendants, Avondale Shipyards, Inc. and Liberty Mutual Insurance Company, have suspensively appealed judgments of the Twenty-Fourth Judicial District Court, Division “B”, wherein the Honorable Frank V. Zacearía cast defendants liable jointly and in solido for the full sum of $274,500.

The deceased, Preston Ealy, was employed by Aireo, Inc., as a truck driver, and on May 27, 1977, he was making a delivery of liquid oxygen to Airco’s customer, Avon-dale Shipyards, Inc., at Avondale’s Bayou Black Shipyard. After unloading the liquid oxygen into the storage tanks, Mr. Ealy was proceeding to disconnect the delivery hoses running irom the truck to the fill lines. While disconnecting the delivery hoses at the junction with the fill lines, an undetermined amount of liquid oxygen spilled. The spillage ignited, engulfing Mr. Ealy, and causing third degree burns to approximately 75 percent of his body. He was taken to Baton Rouge General Hospital where he died the following day.

Suits were brought on behalf of the illegitimate minor children of the deceased, Preston Ealy. Named as defendants were the deceased’s employer, Aireo, Inc., Avon-dale Shipyards, Inc., and Liberty Mutual Insurance Company. Aireo, Inc. was dismissed from these proceedings because of the exclusiveness of liability provision of the Louisiana Workmen’s Compensation Act. Because of a contract between Aireo, Inc. and Avondale Shipyards, Inc., Airco’s insurer, Liberty Mutual, in effect became the insurer of Avondale for any liability arising out of this accident.

The trial court concluded that the explosion and fire were ignited by a spark emanating from a fracturing water pipe as the result of the spillage of liquid oxygen onto the water pipe. The court further concluded that the placing of the water pipe, or the allowing of the water pipe to remain underneath the liquid oxygen pipes was a danger and should have been obvious to anyone with any knowledge or experience in the delivery of liquid oxygen. The trial court then held Avondale Shipyards, Inc. liable for allowing such a dangerous situation to exist. The trial court rendered judgment in favor of Betty Gail Price, individually and as tutrix of the minor, Tikisha Price, in the amount of $135,000, and in favor of Laura Mae Price, individually and as tutrix of the minor Courtney Tremon Price, in the amount of $139,000. The defendants cast in judgment were Avondale Shipyards, Inc. and Liberty Mutual Insurance Company. From that judgment, these defendants have suspensively appealed.

FACTS

Airco’s liquid oxygen storage facility at Avondale’s Bayou Black shipyard was erected in 1966. Aireo and Avondale contractually agreed that Aireo was solely responsible from the inspection and maintenance of this facility. However, there was no prohibition against Avondale personnel entering the site. In fact, some of Avondale’s employees were required to periodically enter the site to read the various gauges. This reading would determine when Avondale would call Aireo for delivery.

When delivery was made, a driver would back his truck up to the site. Then the driver would connect the delivery hose from the truck to the intake fill line. Once the storage tanks were filled, the driver would shut off both the delivery valve from the truck and the intake valve from the storage tank. A bleeder line valve would then be opened to allow any excess liquid oxygen to be released. The lines would be disconnected and removed and delivery would be completed.

Aireo had unobstructed access to their facility at Bayou Black from 1966 until 1968, when Avondale laid three pipelines across the site. These pipelines ran within ten to fifteen feet of Airco’s intake line and storage tanks and carried water, argon and natural gas. Avondale subsequently enclosed the facility including portions of its own pipelines by erecting a chain-link fence. Avondale conducted these actions without consulting Aireo or seeking their permission.

With Avondale’s pipelines and fence obstructing their entry, Aireo drivers found it necessary to use two hoses connected together in order to reach the storage tank intake line. To remedy this, Aireo extended the intake line out ten to fifteen feet from the storage tank. As a result of the extension, the intake line was situated approximately six inches away from Avon-dale’s pipelines. Because of the length of the extended intake line and filling hose and the distance to the storage tank, it was not possible for the delivery driver to completely empty the connecting hose and intake line. Thus, there would always be some spillage of liquid oxygen even if the bleeder line were employed.

On the day of the accident, Preston Ealy stopped at the residence of Betty Price for a brief rest and shower. Collins Price, the brother of Betty Price, left with Preston Ealy to make the delivery to Avondale’s Bayou Black facility. They arrived at approximately 8:00 p.m. and secured passes to enter the facility. Mr. Ealy then backed his truck up to the Aireo storage tanks, connected the hoses and began the process of transferring the liquid oxygen from the truck to the storage tanks. The transfer was approximately an hour and forty-five minutes.

Mr. Ealy approached the rear of the truck and began the disconnecting process. Mr. Price remained in the truck and testified he heard a hissing sound lasting approximately ten (10) minutes. He then joined Ealy at the rear of the truck and watched as Ealy disconnected the hose from the truck. Ealy then attempted to disconnect the hose from the intake line by hand but was unsuccessful. He then secured his brass hammer and tapped the connection. An explosion of sorts ensued and Ealy was set ablaze.

Collins Price made several attempts to extinguish the flames, but was unsuccessful. A fire extinguisher was brought to the scene and the fire was put out.

Ealy remained at Avondale approximately thirty (30) minutes before medical assistance arrived. During this time, Ealy mumbled to Price but he was unable to understand him. Price accompanied Ealy in the ambulance as he was brought to Baton Rouge General Hospital where he died the following day.

SPECIFICATION OF ERRORS

By appellants:

that (I) The trial court erred in holding that Avondale Shipyards, Inc. was negligent; that

(II) The trial court erred in failing to find the plaintiff either solely at fault or at least guilty of contributory negligence; and that

(III) The award of damages by the trial court, particularly with respect to child support, was excessive based on the earnings of the deceased.

By appellee, Betty Price, tutrix of the minor, Tikisha Price:

that (I) The trial court erred in awarding only $135,000 in damages to a child, four years of age, at the time of her father’s death.

APPELLANTS’ ARGUMENT

I. LIABILITY OF AVONDALE

Appellants assert the trial court erred in holding Avondale negligent.

In a negligence case against the owner of a thing actively involved in the causation of the injury, the claimant must prove (A) that something about the thing created an unreasonable risk of injury that resulted in the damage; that (B) the owner knew or should have known of that risk; and that (C) the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. The knowledge, whether actual or constructive, gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk. No responsibility is placed on the owner who acted reasonably, but nevertheless failed to discover that the thing presented an unreasonable risk of harm. Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982).

A. The Water Pipe Created an Unreasonable Risk of Injury that Resulted in the Damage.

The trial court concluded that allowing the water pipe to remain in such close proximity to the liquid oxygen intake line created a dangerous situation. This conclusion is supported by the record.

Testimony was heard from two expert metallurgists. One, Dr. John H. Tabony, Jr., was retained by Avondale directly; the other, Dr. Courtney G. Busch, was engaged by appellee.

Appellee’s expert characterized the placing of the intake line so close to the water and other pipes as “exceedingly dangerous.” Avondale’s metallurgical engineer testified that “as an engineer, you probably would not put the water lines at that location.” Dr. Tabony felt that the greater the distance from the coupling of the intake line to the water pipe, the better. He testified that ten feet (unlike the five to seven inches between the intake line coupling and the water pipe) would be adequate protection.

Preston Ealy died as a result of burns he received when liquid oxygen he was handling ignited; however, the source of that ignition was sharply contested. The trial court concluded it was the cracking of the water pipe when the liquid oxygen fell upon it causing a spark to emanate and cause instantaneous flaming.

The trial court faced two theories explaining the ignition. One was the spark caused by the cracking of the water pipe. The other was that the deceased had upon his person some combustible substance or that he failed to clear the immediate area of all such combustible materials.

The record contains twenty-six (26) photographic exhibits. In no less than twelve (12) of these photographs, the crack in the water pipe is clearly visible. Three photographs visibly demonstrate that the distance from the intake line coupling down to the crack on the pipe below is only some five (5) to seven (7) inches. Dr. Busch’s report was introduced by stipulation and it was his professional conclusion that the liquid oxygen was ignited because of the presence of an ignition source (i.e., most probably, a spark from the broken water pipe). Avondale’s metallurgist’s testimony did not, when taken as a whole, contradict Dr. Busch; in fact, his testimony was consistent with and corroborative of Dr. Busch’s opinion.

Dr. Tabony testified he found the broken water line close to the hose coupling and that for this type fracture to occur, liquid oxygen would have had to come out of the line going to the tank. Dr. Tabony concluded that in his opinion the breaking of the metal water line could generate a spark. He testified further that it was “possible” that the accident was caused by the liquid oxygen dropping on the water pipe. Though Dr. Tabony insisted at first that the most probable source of ignition was contact with a combustible substance (e.g., oil, asphalt), and not the fracture of the pipe, upon further questioning, he summized that the liquid oxygen would ignite either from the carbonaceous material or from the water pipe. In addition, he did not find any evidence of such combustible material. In fact, he testified he did not conduct a cursory inspection of the premises in order to substantiate the possibility of identifying any material that might have served as the source of the ignition.

The trial court, faced with two possible sources of ignition, found sufficient evidence to conclude that the spark emanated from the fracturing water pipe. We are of the opinion that the trial court was correct in finding that the spark emanated from the fracturing of the water pipe and served as the source of ignition.

B. Avondale Knew of the Dangerous Situation

Avondale placed the water pipe in its location in 1968. Not until 1976 did this pipe’s position take on significance because of the extension of the liquid oxygen intake line to within six inches of it. When that occurred, no less than three employees of Avondale with responsible positions knew of the new proximity of the liquid oxygen intake line to the water pipe. Avondale’s purchasing agent observed the relationship of the line and pipe within two weeks after the construction. In addition, both Avon-dale’s safety inspector, Tony Maranda, and Avondale’s gauge reader, Gilbert Arcen-eaux, had observed the new physical set up. It is undoubtedly evident Avondale knew of the dangerous situation.

C. Avondale Failed to Render the Thing Safe

The fatal accident occurred in May, 1977, almost a year after the hazardous situation was created. There is no evidence that Avondale took any steps to prevent the damage caused by the water pipe. The fact that the accident occurred is evidence enough to demonstrate Avondale failed to render the water pipe safe.

Appellants additionally argue that they are relieved of any liability because Aireo had exclusive control and custody over the area in which the accident occurred. Appellants further point out that they had contractually relinquished all responsibility to Aireo. We are of the opinion, however, that there was joint custody in that both parties exercised control over the area. Neither party demonstrated exclusive custody or control.

Avondale’s vice-president and manager of the Bayou Black facility where the incident happened was explicit that the fenced area was the sole responsibility of Aireo. However, this contention is contradicted by testimony of the appellant’s other witnesses.

Avondale’s purchasing agent, Lee Shelton, testified that Avondale, not Aireo, owned and maintained the water pipes exclusively even though a portion was within the fenced area. He further testified that Avondale personnel would routinely enter the area to take gauge readings.

Mr. Meade Willis, a former Aireo employee who was called as Avondale’s witness, also contradicted the vice-president of Avondale concerning responsibility within the fenced in area. He testified that upon approaching the pad, if combustible materials were showing in the area or on the pad, it would be the duty of the driver to inform the people receiving delivery, to either clean the area or straighten it out.

The trial court held Avondale liable as owner of the fractured water pipe. Avon-dale stipulated to its ownership, and we believe this is a sound ruling. Even if we were to find Aireo had exclusive control or custody of the area, that does not alter the fact that Avondale owned the fractured water pipe and allowed that pipe to remain in a place where it created an unreasonable risk of injury.

II. LIABILITY OF PRESTON EALY

Appellants contend the trial court erred in failing to find Preston Ealy either solely at fault or at least guilty of contributory negligence. Appellants, however, do not relate any facts to support their contention that the trial court erred in finding Ealy free of any negligence. Instead, appellants argue that Ealy failed to follow prescribed safety procedures and that because Ealy was the one who spilled the liquid oxygen, his negligence contributed to the accident. This argument is wholly unsupported by the record.

Appellants’ witness, Mr. Willis, had trained Mr. Ealy and had worked alongside him. He described Mr. Ealy as “one of the best” students and characterized him as a good worker. Later in the trial this witness testified that after he began working, Ealy gave due regard and attention to the safety procedures. There is not one iota of evidence that Mr. Ealy was negligent in his delivery of liquid oxygen.

The appellants rely upon two other facts to prove that Mr. Ealy failed to follow procedure and was, therefore, negligent: a bent gasket and a drain valve.

Appellants have contended that Mr. Ealy was using a defective gasket at the time. It is their contention that one can observe the distorted contour of the gasket from two of the photographs. By using this gasket, appellants contend, Ealy contributed to the leakage.

Again appellant’s own witness contradicts its theory of the case. In viewing photographic Exhibit D3, Mr. Willis stated that Mr. Ealy would have been unable to determine from sight whether the gasket was defective. Only after he started pumping the liquid oxygen would it become apparent he was using defective equipment. If the gasket was defective, the liquid oxygen would have been leaking at the beginning of the unloading. The combustion would have occurred almost ninety minutes earlier had Ealy negligently used a defective gasket.

All positive evidence pointed to the fact that the combustion did not take place until after the liquid oxygen had been discharged. Further, Dr. Tabony concluded that Ealy had completed the work he was doing and that the valve on the truck was shut off. Collins Price’s testimony was that they had been at the facility for approximately one hour and forty-five minutes, the time it takes to unload; and Mr. DeCuir, who arrived later in the morning, observed at that time that the trailer tank was empty-

Appellants next contend that had Ealy properly used the drain valve, the combustion would never have occurred. Several witnesses positively contradicted that allegation, and the appellants did not produce one witness to affirmatively state that the drain valve would or did prevent the residual leakage.

Three of the witnesses testifying had experience in the delivery of liquid oxygen: DeCuir, Willis and Brown. As to the Bayou Black site, they all testified that despite the presence and use of a drain valve there would still be some spillage from the mouth of the intake line. The spillage would occur because of the extension of the intake line and the distance between the shut-off valves and the storage tanks. Further, the only eyewitness to the accident, Collins Price, stated he heard a hissing sound like the releasing of pressure which indicates Ealy had employed the drain valve.

The burden was upon appellants to prove by a preponderance of the evidence that Ealy was contributorily negligent. Dofflemyer v. Gilley, 384 So.2d 435, 439 (La.1980). In the absence of evidentiary support in this case, appellants failed in their burden. Thus, we find no contributory negligence on the part of the deceased.

III. DAMAGES

Finally, appellants contend the trial court erred in awarding damages, particularly with respect to child support. The trial court awarded each child Twenty-Five Thousand Dollars ($25,000) for the loss of love and affection. Additionally, each child was awarded support in the full amount of Six Thousand Dollars ($6,000) per year, the trial court noting that this would be a reasonable amount to expect a father to spend on a child. Tikisha Price was only four years old at the time of her father’s death. She was awarded thirteen years of support, totalling Ninety-Eight Thousand Dollars ($98,000). Courtney Tremon Price, born on July 19, 1976, was awarded seventeen years of support, totalling One Hundred Two Thousand Dollars ($102,000). Appellants argue that with a salary of $15,760 earned in 1976 by Ealy, it is unreasonable to assume the deceased would have spent $12,-000 in child support.

Appellants seek to attack the trial court’s decision on the basis that $6,000 a year for each of two children would have exhausted decedent’s expendable income. The argument at first appears to have merit because Ealy had gross earnings the prior year of $15,760. However, had Ealy lived the remainder of 1977, he would have earned at the same job approximately $19,749. This figure is calculated on his earnings as of May 27, 1977, in the amount of $8,229.

The trial court’s $500 per month, or $6,000 per year estimate, was obviously an average over the years. Under the trial court’s judgment, Ealy would have been paying $500 a month in 1994, as well as 1977. The trial judge reasonably considered the increased financial burden of children as they grew older and merely used the $6,000 amount as a reasonable average sum. That Mr. Ealy would have contributed $6,000 per year in support of each of his children during their minority is not an unreasonable finding. The record does not clearly reveal that the judge abused his much discretion in finding that Ealy would contribute that amount to the support of his children.

Appellants additionally argue that the award was especially unreasonable when there was no evidence whatsoever of any monetary support by Ealy for the child, Courtney Tremon Price. However, this argument is contrary to the record.

Mrs. Odeal Lewis testified that Preston Ealy gave her the money to buy the clothes for Courtney so that he could come home from the hospital. Ms. Laura Mae Price, Courtney’s mother, testified, without even cross-examination, that Mr. Ealy had purchased medicine for her while she was pregnant. He directly purchased baby food and Pampers diapers and helped with other food. In addition, every other week he would give her $100.

The record is replete with testimony demonstrating that Ealy willingly and generously gave whatever was needed for the support of his ten month old son.

Before a court of appeal can disturb an award made by a trial court, the record must clearly show the trier of fact abused his much discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). We cannot find such an abuse with regard to the awards for child support and loss of love and affection.

APPELLEE’S ARGUMENT

I. DAMAGES

Appellee, Betty Price, contends that the award of $25,000 awarded to Ealy for pain and suffering was error by the trial court and such award should be $75,000. Ealy received severe burns over 75 percent of his body. After receiving these burns, Ealy lived approximately fifteen hours. Factors to be considered in assessing quantum for pain and suffering are the severity and duration thereof. Buckley v. Exxon Corp., 399 So.2d 1225 (La.App. 3d Cir.1981). After reviewing the facts, we cannot find that the trial court abused its discretion in the award because of the severity and duration of the deceased’s injury preceding his ultimate death. Following the mandate of Coco v. Winston, supra, therefore, we affirm the trial court’s award of damages.

For the reasons discussed above, the judgment of the district court is affirmed. Appellants are to pay costs of this appeal.

AFFIRMED.


text:
    Peter S. FALLO v. TUBOSCOPE INSPECTION, INTRACOASTAL PIPE REPAIR & SUPPLY COMPANY, INC., Intracoastal Terminal, Inc., Intracoastal Pipe Lines, Inc. and John Doe.
    No. 5-314.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Jan. 17, 1983.

      Joel P. Loeffelholz, New Orleans, for plaintiff-appellant.
    Thomas L. Gaudry, Jr., Gretna, Brad G. Theard, Edward L. Lebert, Jr., Young, McMahon & Levert, New Orleans, for defendants-appellees.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   CURRAULT, Judge.

This is an appeal by plaintiff, Peter S. Fallo, from judgments dismissing his suit against certain defendants on their motions for summary judgment.

Plaintiff, a day laborer, was sent by P & M Oilfield Services, Inc., a labor pool supply company, to the Harvey yard of Intracoas-tal Pipe Repair & Supply Company, m response to a request for temporary help by AMF Tuboscope, Inc. Tuboscope is in the business of inspecting and testing pipes used in the oilfield industry.

Fallo reported for his first day of work at 7:30 a.m., and at 3:30 that afternoon was involved in an accident which occurred while he was standing in a dangerous position. Two of the Tuboscope employees rushed to his aid, but in doing so neglected to turn off the conveyor belt. As a result, pipe rolled off the belt and plaintiff’s leg or ankle was crushed between two pieces of pipe.

Plaintiff was paid workmen’s compensation benefits by P & M and thereafter brought this suit in tort against various defendants. We are concerned here only with corporate defendants AMF Tuboscope, Intracoastal Pipe Repair & Supply Company, and Intracoastal Terminal.

These defendants filed motions for summary judgment; all of which were granted in judgments rendered October 9, 1981. The Intracoastal Companies’ claims are based on allegations that plaintiff was not an employee of either of them, and Tubo-scope asserts that plaintiff’s only remedy against them is in workmen’s compensation.

In support of their motions, defendants rely on the pleadings, answers to interrogatories and depositions of plaintiff, and Douglas Hervey, field supervisor for Tubo-scope.

It is clear plaintiff has no claim against the Intracoastal Pipe Repair & Supply Company and Intracoastal Terminal, Inc., as plaintiff was not an employee of either company. Thus, their motion for summary judgment was properly granted. (We note that plaintiff has apparently abandoned his claim as to them since his brief is directed only to his claim against Tuboscope.)

It is appellant’s position that his claim against Tuboscope is not limited to compensation benefits because his injury was intentionally caused by the Tuboscope employees.

In support of his argument, appellant cites us to the landmark case of Bazley v. Tortorich, 397 So.2d 475 (La.1981), and to Hurst v. Massey, 411 So.2d 622 (La.App. 4th Cir.1982).

In Bazley, supra, the Supreme Court interpreted R.S. 23:1032, as amended by Act 147 of 1976, to mean that if an employee is to be exempted from the exclusive remedy of workmen’s compensation, the injury must have been caused by an intentional act as one where the tort-feasor consciously desires to bring about the physical result of his act, or the belief that the result of his act was substantially certain to follow from his conduct.

Intent, the court points out, is not limited to consequences which are desired. If the actor knows the consequences are certain, or substantially certain, to result from his act, and he still goes ahead, he is treated by the law as if he had in fact desired to produce the result.

After a review of the record and the law, it is our opinion that a determination of the requisite intent as defined by Bazley, is a factual matter to be properly adjudicated at a trial on the merits.

For the reasons assigned, therefore, the judgment in favor of Intracoastal Pipe Repair & Supply Company, Inc. and Intracoas-tal Terminal, Inc. is affirmed. The judgment in favor of defendant, AMF Tubo-scope, Inc., is reversed and it is now ordered that the matter be remanded to the district court for further proceedings in accordance to law and with the views expressed herein.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


text:
    Donald SCHEXNAYDER v. Kristen Campbell SCHEXNAYDER.
    No. 5-289.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Adelaide Baudier, Metairie, for plaintiff-appellant.
    Emile R. St. Pierre, Destrehan, for defendant-appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment of divorce silent on the issue of fault and which awarded $2600 in past due alimony.

Donald Schexnayder and Kristen Campbell Schexnayder were married on February 5,1972. No children were born of the marriage. On December 16, 1977, appellant Donald Schexnayder filed a suit for separation a mensa et thoro on the grounds of cruel treatment. Appellee, Kristen Schex-nayder, responded with a reconventional demand based on abandonment and subsequently filed a rule for alimony pendente lite.

All issues were scheduled for hearing on November 21, 1978, however at that time the trial court continued the action for separation. In a judgment rendered December 6,1978, the trial court merely issued certain orders not pertinent to this appeal, took the alimony rule under advisement and suggested that the parties collaborate on a consent judgment for separation. The alimony was subsequently set at $30 per week in a judgment dated February 28, 1979. Finally, on March 2, 1979, a consent judgment for separation was submitted by the parties, approved by the trial court and made part of the record.

Following appellant’s failure to pay alimony as ordered in the judgment of February 28, 1979, another judgment was issued on October 14, 1980, making the arrearage of $1960 executory, and ordering him to pay an additional $40 per month to be applied to the amount past due.

On February 6, 1981, appellant filed for divorce on the grounds of living separate and apart for more than one year under the provisions of LSA-R.S. 9:301. The appellee reconvened asking for an award of permanent alimony, and shortly thereafter filed a rule to increase alimony and for contempt.

A trial of the divorce and rules was held, and on October 16, 1981, the trial court rendered a judgment of divorce granted solely on the parties having lived separate and apart for one year from date of judicial separation. The judgment further denied an increase in alimony, declared the alimony arrearage to be $2600, and ordered appellant to pay $50 per week to be applied to the arrearage only.

Appellant appeals portions of the judgment related to fault and the amount of past due alimony.

The following issues are presented for our consideration:

(1) The trial court erred in failing to find mutual fault in its divorce judgment pursuant to language used in a judgment dated December 6, 1979; that

(2) The trial court erred in not holding that post-divorce alimony was precluded because both parties were at fault in causing the separation; and that

(3) The trial court erred in its computation of the balance owed on past due alimony.

Clearly a finding of mutual fault at the time of separation would bar a subsequent claim for post-divorce alimony by either party. LSA-C.C. art. 141. Pursuant to that article, in order for the court to find mutual fault, each party’s fault must constitute an independent fault ground for separation under LSA-C.C. art. 138; Adams v. Adams, 389 So.2d 381 (La.1980).

The record clearly reflects, contrary to appellant’s assertions, that mutual fault was neither litigated nor determined in the separation proceedings. The trial judge stated in the transcript of the proceedings attendant to its December 6,1978 judgment that the separation issue was continued. No evidence was introduced or offered as to fault at that time, and the sole issue litigated was the alimony pendente lite request.

Following that trial, the court rendered a judgment taking the alimony issue under advisement. However, the judgment also contained the following language indicated by appellant as evidence of a determination of mutual fault:

“In the opinion of the Court, sufficient evidence has been shown for either party to move for Judicial Separation at this time.”

We do not agree that the statement indicates fault since it could easily imply as well that the parties had been living voluntarily separate and apart for the prescribed period under LSA-C.C. art. 138(9). Further, the statement in a judgment, which did not grant the separation, was followed by a suggestion that the parties collaborate on a consent judgment for separation. The parties did so and the consent judgment approved by the court failed to mention fault. Therefore, we find no merit in appellant’s claim of a pre-divorce finding of fault.

[4] Appellant argues alternatively that the trial court erred in failing to hold that post-divorce alimony was precluded since both parties were at fault in causing the separation. The question to be resolved is whether appellee, as the party requesting alimony, is entitled to such pursuant to LSA-C.C. art. 160. That article requires that the spouse requesting post-divorce alimony be free from fault, and further demonstrates that he or she does not have sufficient means for support. Both elements required by this article must be proven by the claimant spouse. Moore v. Moore, 393 So.2d 822 (La.App. 2d Cir.1981); Volker v. Volker, 398 So.2d 134 (La.App. 3d Cir.1981); Lauro v. Lauro, 399 So.2d 1297 (La.App. 4th Cir.1981). Fault in this context is conduct violative of the marital duties and responsibilities, and it “must be serious and an independent contributory or proximate cause of the separation.” Pearce v. Pearce, 348 So.2d 75, 77 (La.1977).

The record herein is deficient in that the trial court failed to articulate any definitive statement regarding fault of the parties. For the purpose of clarification on the issue of appellee’s entitlement to permanent alimony, we therefore remand the case and order an evidentiary hearing to determine: (1) whether appellee is free from fault under LSA-C.C. art. 160; and, if so, (2) whether appellee can demonstrate need pursuant to LSA-C.C. art. 160.

The third and final issue presented for our consideration is whether the trial court erred in calculating the amount of past due alimony owed by appellant at date of trial.

The record discloses that in calculating the total owed, the trial judge relied on a running tabulation of payments made by appellant which was provided by appellee. Appellant sought to prove an additional $280 payment absent from that list; however, the trial judge accepted only $80 of that amount lacking sufficient proof of the extra $200 payment. He concluded that in addition to the $1960 unsatisfied from the prior judgment, an additional $640 was owed, totalling $2600. Our review of the evidence does not reveal that the trial court incorrectly assessed the total arrearages, therefore, we affirm the judgment as to the amount of past due alimony.

For the foregoing reasons, the judgment appealed from is remanded on the issue of fault for proceedings consistent with the opinion herein; but affirmed on that portion of the judgment assessing past due alimony. Each party to pay its own costs of this appeal.

AFFIRMED IN PART REMANDED IN PART.

      . The article further provides that, “In determining the entitlement and the amount of alimony after the divorce, the court shall consider the income, means and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability in light of all other circumstances. This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”


text:
    Beverly C. DALY v. CITY STORES COMPANY and Travelers Insurance Company.
    No. 5-237.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Ferdinand J. Kleppner, Metairie, for plaintiff-appellant.
    Marvin L. Schwartz, New Orleans, for defendant-appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CURRAULT, Judge.

Plaintiff, Beverly C. Daly, filed suit for damages sustained as a result of her being stopped and detained by store detectives when an electronic alarm was triggered by a tag on merchandise she had purchased. Defendants, City Stores and Travelers Insurance Company, filed a motion for summary judgment which was granted dismissing plaintiff’s suit. Summary judgment was based on the rationale that defendant’s actions were sanctioned by LSA-C.Cr.P. art. 215.

On April 25, 1979, Mrs. Daly entered a Maison Blanche department store owned and operated by defendant City Stores and insured by Travelers Insurance Company. She purchased a blouse and, as the sales clerk registered the purchase, requested the electronic tag be removed. After completing the purchase, she took her package and proceeded to exit the department store. As she was exiting, the electronic alarm system sounded and she was stopped by a detective employed by Maison Blanche. While a number of people watched, she was forced to open her shopping bag and the tagged merchandise was discovered. Mrs. Daly was then detained while department store personnel ascertained whether the merchandise had been paid for. After it had been determined the merchandise was indeed paid for, she was released.

In support of their motion for summary judgment, defendants argued their actions were protected by LSA-C.Cr.P. art. 215. They additionally contend the instant case should be governed by Lindsey v. Sears, Roebuck and Company, 389 So.2d 902 (La.App. 4th Cir.1980).

However, more recently in Allen v. Sears, Roebuck and Company, 412 So.2d 1095 (La.1982), the Supreme Court indicated that a summary judgment was not the appropriate procedural vehicle to determine an issue such as presented here.

We agree and accordingly reverse and remand this case to the district court for trial on the merits. Assessment of costs of this appeal is to await the final determination of this suit.

REVERSED AND REMANDED.


text:
    Elsworth C. STEVENSON, Jr. v. Roosevelt JENKINS, Sr.
    No. 5 — 232.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Olden C. Toups, Jr., New Orleans, for defendant-appellant.
    David Pick, Greenberg & Dallam, Gretna, for plaintiff-appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CURRAULT, Judge.

This case arises out of the petition for adoption filed by Elsworth C. Stevenson, Jr., applying for the adoption of his minor stepson Roosevelt Jenkins, Jr. This matter was tried before Judge Sol Gothard, Division “A”, the Juvenile Court for the Parish of Jefferson, wherein the adoption was granted pursuant to LSA-R.S. 9:422.1(1) and (3). The adoption was granted over the protest of the legitimate father defendant, Roosevelt Jenkins, Sr. The defendant has appealed.

The child’s mother was divorced from his father on February 15, 1979. On May 20, 1981, petitioner, the present husband of the mother, filed a petition for adoption pursuant to LSA-R.S. 9:422.1, more particularly, parts (1) and (3). At the time the petition was filed, Roosevelt Jenkins, Sr. was incarcerated in the Elaine Hunt Correctional Center. In fact, the defendant was continuously incarcerated from August of 1980 until and including the date of the hearing on October 2, 1981.

After a trial on the merits, judgment was rendered in favor of the petitioner stepparent, granting his petition for adoption. The legitimate father has appealed.

Appellant makes the following assignment of errors: that

(1) The Juvenile Court erred in its determination that the defendant has refused or failed to comply with a court order of support for a period of one year; that

(2) The Juvenile Court erred in its determination that the defendant has refused or failed to visit, communicate or attempt to communicate with the child without just cause for a period of two years; and that

(3) The Juvenile Court erred in refusing to grant a continuance due to the unavailability of a crucial defense witness.

Regarding the first contention, that the trial court erred in its determination defendant refused or failed to comply with a court order of support for one year, appellant argues that no court order of support was ever made part of the record. It is appellant’s position that none was in effect.

The Juvenile Court, however, correctly took judicial cognizance of an earlier Juvenile Court order commanding the defendant to pay child support in the full sum of $20 a week. The record showed defendant made three payments pursuant to this order: July 29,1976; September 1,1976; and September 15, 1976. The support order was subsequently amended in September of 1977, making the State of Louisiana the recipient of payments inasmuch as the mother was on welfare. Once the State was made the payee, the defendant made one payment on August 8, 1978. This was the final payment.

Judge Gothard correctly concluded that no payments had been made by defendant since August, 1978, thus satisfying LSA-R.S. 9:422.1(1). We find no error in these factual conclusions.

Appellant further argues that even if an order of support is found, the appellant’s failure to support is based on reasons beyond his control. Appellant cites Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir.1977), wherein it was held that a father’s incarceration is a just cause for his failure to comply with a court order of support. While this is a proper statement of law, it is not applicable in the instant case.

The record is clear that the last payment in accordance with the court order of support was made on August 8, 1978. The record is additionally clear that appellant was not incarcerated until August of 1980. This leaves a nonsupport period of two years prior to his incarceration. Appellant’s argument that his failure to pay was beyond his control is not persuasive.

Appellant additionally argues that the period of nonsupport must immediately precede the filing of the petition and that his incarceration during that period provides him with lawful justification for failure to support. LSA-R.S. 9:422.1(1) simply states that there need only be a failure or refusal to comply with a court order of support for a period of one year. The statute does not state that the one-year period must be the year immediately prior to the adoption proceedings. In State v. Jones, 373 So.2d 1331 (La.App. 4th Cir.1979), the court held that the statute is satisfied when such legitimate parent fails or refused to comply with a court order of support for a period of one year without lawful cause and that the year need not immediately precede the filing of petition for adoption. Appellant’s argument is meritless.

Appellant’s remaining arguments are centered around the court’s determination that appellant refused or failed to visit, communicate or attempt to communicate with his child and the court’s refusal to grant a continuance based on the absence of a defense witness who would testify to visits made by the appellant. The statute in question, however, requires that only one of its provisions be met in order to grant the adoption. The statute does not require that in addition to failure to comply with an order of support, a protracted period of neglect by the legitimate parent should also be a prerequisite. This interpretation would defeat the intent of the legislature in enacting the statute. In Re Jones, 337 So.2d 283 (La.App. 2d Cir.1976).

The juvenile court judge found the appellant had failed to comply with a court order of support for a period of one year complying with LSA-R.S. 422.1(1). He also found the adoption would be in the best interest of the child citing petitioner as a good man who has been truly rearing the child and providing the child with a good example for the three years prior to trial. Under LSA-R.S. 9:422.1(1), these findings are sufficient to grant the petition and such findings are amply supported by the evidence.

For the above stated reasons, the judgment of the Juvenile Court is affirmed at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 9:422.1 reads as follows:
      “If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child then the consent of the other legitimate parent es not necessary when the spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction, and if any one of the following conditions exist:
      (1) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year.
      (2) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.
      (3)The other legitimate parent has refused or failed to visit, communicate, or attempt to communicate with the child, without just cause, for a period of two years.”


author: CHEHARDY, Judge.

text:
    Margaret Smith DEVALL v. Ernest J. MORGAN, et al. Deborah K. RYBCZYK as Trustee of/and Government Employees Insurance Company v. Ernest J. MORGAN, et al. Deborah KRELLER, Widow of Rhys S. Rybczyk v. Ernest J. MORGAN.
    Nos. 5-277 to 5-279.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Jan. 17, 1983.
    Writs Denied March 4, 1983.

      Elsie B. Halford, Metairie, for Margaret Smith Devall, plaintiff-appellee.
    Wells & Breaux, John H. Wells, New Orleans, for Deborah K. Rybczyk as trustee of/and Government Employees Ins. Co., plaintiffs-appellees.
    Gordon Hackman, Boutee, for Ernest J. Morgan, defendant-appellant.
    Philip K. Jones, Marshall W. Wroten, Robert J. Jones, Doran & Kivett, William J. Doran, Jr., Baton Rouge, for State of La., Dept, of Transp. and Development, defendant-appellant.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

These cases were consolidated for trial in the district court and for argument here. They arise from a head-on collision between two uninsured automobiles on U.S. Highway 61 (Airline Highway) in that section known as the Bonne Carre Spillway Bridge. Casper A. Rigamer, driver of one of the automobiles, and his guest passenger Rhys Rybczyk were killed and Ernest L. Morgan, the owner-driver of the other automobile, was injured.

Suit No. 5-277 of our docket was instituir ed by Rigamer’s divorced wife Margaret Devall, as administratrix of the estate of the three minor Rigamer children, for loss of love and affection, pain and suffering and loss of their father’s support. The principal defendants in the suit, and the only ones with which we are concerned in this court, are Ernest Morgan and the State of Louisiana, Department of Transportation and Development (Office of Highways), hereinafter referred to as the Highway Department.

Morgan answered and reconvened for special and general damages, and the Highway Department answered asserting the defense of negligence and/or contributory negligence on the part of Rigamer and filed a third party demand against Morgan.

Suit No. 5-278 of our docket was filed by Mrs. Deborah Rybczyk as trustee of/and Government Employees Insurance Company against Morgan, the Highway Department (and other defendants not pertinent here) for $50,000 which had been paid to Mrs. Rybczyk under the uninsured motorists provision of her own policy with that insurer following the death of her husband.

Morgan reconvened in this suit for his injuries and the Highway Department filed a third party demand against Morgan, alternatively seeking solidary liability along with Morgan in the event that department was found liable.

Suit No. 5-279 of our docket was filed by Mrs. Rybczyk against Morgan for the wrongful death of her husband. She named no other defendant. Morgan filed the same answer and reconventional demand as he had in the other suits.

Following trial on the merits judgment was rendered against only the Highway Department in the various suits as follows:

In Suit No. 5-277 there was judgment in favor of Margaret Devall as administratrix of the estate of the three minor Rigamer children in the sum of $50,000 each for general damages and additional special damages for each child for loss of support. (The latter awards were based upon a previous judgment for support rendered in the parents’ divorce action, figured until each child was 18 years of age. The children were all in their teens at the time of Ri-gamer’s death.)

Suit No. 5-278 relative to the $50,000 uninsured motorist claim of Mrs. Rybczyk, as trustee, and Government Employees Insurance Company was dismissed, as was Suit No. 5-279, Mrs. Rybczyk’s personal suit against Morgan.

The trial court dismissed all claims against Morgan, finding he was free of negligence and had in no way contributed to the accident. The court ruled that the sole proximate cause of the accident was the failure of the Highway Department to inspect and maintain the bridge, which was found to be too narrow for the volume of traffic.

Morgan filed a motion for a new trial in each suit and Mrs. Rybczyk, as trustee, and Government Employees Insurance Company filed a motion for a new trial in their suit. Morgan’s motion for a new trial was based upon his claim chat, because of procedural difficulties, his claims had not been joined against the state and that the court had orally ordered severance of his claims as plaintiff.

At a hearing on the motions, the judge rendered an amended judgment whereby Morgan’s claim for a bifurcated judgment was denied. He was found to be contribu-torily negligent to a sufficient degree so as to dismiss his cause of action, but not to such a degree as to be liable with the Highway Department.

The judgment was also amended in Suit No. 5-278, awarding Mrs. Rybczyk as trustee and Government Employees Insurance Company $50,000 against the Highway Department. As explained by the trial court in its reasons for judgment this claim had been denied in the original judgment because the court had overlooked the fact that the Highway Department was a named defendant in this suit and consequently entitled to a judgment. This inadvertence is explained inasmuch as the department was not a defendant in Mrs. Rybczyk’s individual suit and had been named a defendant in her suit as trustee for/and the insurer by means of a supplemental and amended petition.

As in the original judgment, the Highway Department was found to be the sole proximate cause of the accident. The awards for the Rigamer children were maintained and the motions for a new trial were denied.

Morgan suspensively appealed from the original and amended judgments in Suits Nos. 5-277 and 5-278, as did the Highway Department. No appeal was taken in those suits by any other parties, apparently due to the insolvency of the individual defendant, and Mrs. Rybczyk did not appeal in Suit No. 5-279.

FACTS

The accident occurred about 5:50 a.m. on Saturday, May 28, 1977. Morgan, the sole survivor, was travelling from his home in Reserve to his place of employment in Avondale Shipyards. Rigamer and Ryczyk, the decedents, were travelling from their home in New Orleans to go fishing on the other side of the spillway. The weather was patchy fog. The vehicles were travel-ling on Highway 61 approaching in opposite directions. The speed limit on the highway and the narrower spillway bridge was 55 miles per hour.

The bridge itself is a four-lane undivided roadway about one mile long with concrete guard rails on either side about 3 feet from the highway. There is an 18-inch-wide walkway on each side which forms a curb 16 inches high adjacent to the outside lane in both directions. Thus the total surface available to traffic is 40 feet. There is a double yellow line painted down the center of the 40-foot width. Located between the lines are reflective buttons % inches high by 4 inches square, 40 feet apart. Each direction of travel is divided by a dashed white painted line. These markings total 20 inches in width. Thus the effective width of travel in each lane averages 9 feet 7 inches.

On one side of the center line there are two lanes reserved for traffic travelling eastward (i.e. toward New Orleans), and on the opposite side of the center line two lanes are reserved for traffic travelling westward toward Baton Rouge.

Morgan’s version of the accident is that he was travelling 45 to 50 miles per hour as he approached the bridge from the highway. He slowed down for the traffic bump prior to entering the bridge and then resumed his speed. It was foggy but he was able to see the other automobile, a football field or a field-and-a-half away, cross over on an angle from the westbound lane into his lane. He was travelling in the eastbound lane closest to the bridge railing. Morgan moved into the opposite lane, blinked his lights, blew his horn, sped up and tried to pass, but the other vehicle swerved back, so he hit his brakes and closed his eyes because he knew it was going to be a head-on collision. He stated the accident took place in his eastbound lane.

Plaintiffs rely on the testimony of the investigating police officer, State Trooper Lynn P. Bertaut, Jr., Captain Wallace Fri-loux, Jr., of the St. Charles Parish Sheriff’s Office, and Herman Parish, an accident reconstruction expert, to establish their view that the accident occurred in the westbound lane of traffic.

Captain Friloux arrived at the scene about 10 minutes after the accident. He took 17 photographs at the scene which show in detail the damaged vehicles and their final resting places. The most severe impact was to the right front of both vehicles.

Bertaut testified the initial impact was in the middle of the left westbound lane. He arrived at this conclusion by observing fresh gouge marks in the concrete which were located in the left westbound lane 4 feet 10 inches north of the center stripe and 13 feet 6 inches south of the north curb.

Parish testified that immediately before the impact Rigamer was driving his automobile in a westerly direction in the left westbound lane of the spillway bridge. He further indicated the Morgan vehicle, travelling eastward, was straddling the center line prior to impact with at least one-half of the car in the wrong lane. He based these conclusions on the gouge marks in the left westbound lane, scuff (skid) marks of the Morgan car, and the photographic evidence showing the physical damage to each car, the debris, and the post-impact movement of the vehicles. He further explained in detail how he was able to establish by the law of physics (i.e., motion) that before the collision the Morgan vehicle was travelling approximately 10 to 15 miles per hour faster than the Rigamer car because the Ri-gamer car was pushed backward on impact and the Morgan car continued its forward motion.

NEGLIGENCE

Relative to Morgan’s negligence, or absence thereof, the evening before the accident he went to a few bars, had a couple of highballs, arrived home about midnight, got something to eat, slept two hours and then got up and went to work. As he described the accident, it happened in his lane of traffic. However, this is not supported by the physical evidence. As we have previously discussed, the physical evidence overwhelmingly supports the fact that the impact occurred in the lane that rightfully belonged to Rigamer. This being the case, it was incumbent on Morgan to exculpate himself from the inference of negligence. See Simon v. Ford Motor Company, 282 So.2d 126 (La.1973). Morgan failed to carry that burden. His negligence was clearly a proximate cause of the accident.

The claim of negligence on the part of the highway department is principally based upon the fact the spillway bridge, built in 1935, is obsolete under today’s standards. At the time it was built it conformed to all national standards and even excelled in some areas. However, in 1950 the American Association of State Highways and Transportation officials (AASHO) prescribed minimum lane widths of 12 feet on the primary highway systems. The spillway lane width of 9 feet 7 inches does not, of course, meet the new standards.

Plaintiffs’ experts made various suggestions as to ways the bridge should have been made safer, concluding that a parallel span is the ideal solution; but less expensive measures, including a 36-inch base carrier along the center line, “bumps” in the center line area at 2- or 3-foot intervals, fog sensor devices or fog warning signals, improved lighting, and reduced speed limits, would be appropriate.

The highway department experts did not feel a center barrier was feasible because it would make the lanes even narrower and possibly cause more accidents, nor did they believe fog signs or sensors would have prevented the instant accident. They confirmed that the bridge did not meet today’s standards, but concluded that any deficiency in the structure was not the cause of this accident. We agree with this conclusion. U.S. 61 is a primary highway of the state and thousands of vehicles traverse it safely between New Orleans and Baton Rouge. Had it not been for the fact that one or both of the vehicles were travelling in the wrong lane of traffic, this unfortunate accident would not have occurred.

THE LAW

We are guided by the Supreme Court case of Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). The court recognized the Highway Department has a duty to maintain a reasonably safe highway for the protection of those people who could foreseeably be placed in danger by an unreasonably dangerous condition. That duty encompasses an obligation to provide and maintain an efficient and continuous system of all state highways and bridges. It must make safe any defect of the system of which it has or should have knowledge. Jones v. Louisiana Department of Highways, 338 So.2d 338 (La.App. 3d Cir.1976); Von Cannon v. State, Department of Highways, 306 So.2d 437 (La.App. 3d Cir.1975). The department is liable for damages when it is shown that the hazardous condition that caused the injuries was patently or obviously dangerous to the reasonably careful driver and the department, with actual or constructive knowledge, failed to correct the defect within a reasonable time. Shively v. Pickens, 346 So.2d 1314 (La.App. 3d Cir.1977); Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3d Cir.1974).

However, the failure of the state to update its highways to the current standards does not establish the existence of a hazardous defect. Usry v. Louisiana Department of Highways, 402 So.2d 240 (La.App. 4th Cir.1981); Roberts v. Winston Carriers, Inc., 304 So.2d 818 (La.App. 3d Cir.1974). To impose a burden upon the state of having to update its thousands of miles of highways within the latest guidelines would be an impossible one to fulfill. Roberts v. Winston Carriers, Inc., Ibid.

It is well settled that the highway department is not an insurer of the safety of all motorists on the roads, but has the obligation to maintain the roads and highways in a reasonably safe condition for a reasonable prudent driver. State Farm Mutual Automobile Insurance Co. v. Slaydon, 376 So.2d 97 (La.1979); Hodges v. State, Through Dept. of Highways, 370 So.2d 1274 (La.App. 3d Cir.1979); Wilson v. State, Through Dept. of Highways, 364 So.2d 1313 (La.App. 3d Cir.1978).

The action of drivers in crossing the center line has previously been discussed. When a driver is involved in an accident in the opposite lane he is presumed negligent and is required to exculpate himself from fault. Simon v. Ford Motor Company, supra; Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957).

In applying the law as stated above, we find no negligence on the part of the state, and hold that the sole proximate cause of the accident was the negligence of defendant Morgan. Since no appeal was taken on the failure of the trial court to cast Morgan in judgment, we cannot do so here.

For the reasons assigned, the judgments appealed from are reversed and it is now ordered that there be judgment in favor of the State of Louisiana, Department of Transportation and Development (Office of Highways), dismissing plaintiff’s claim in Suit No. 5-277.

REVERSED AND RENDERED.

      . Named in the suit as State of Louisiana, Department of Highways.

      . We reject the application of C.C. art. 2317, as this case clearly involves third party fault.


text:
    Deborah K. RYBCZYK as Trustee of/and Government Employees Insurance Company v. Ernest J. MORGAN, et al.
    Nos. 5-278, 5-277 and 5-279.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Jan. 17, 1983.
    Wells & Breaux, John H. Wells, New Orleans, for Deborah K. Rybczyk as trustee of/and Government Employees Insurance Company, plaintiff-appellee.
    Gordon Hackman, Boutee, for Ernest J. Morgan, defendant-appellant.
    Philip K. Jones, Marshall W. Wroten, Robert J. Jones, Doran & Kivett, William J. Doran, Jr., Baton Rouge, for State of La., Dept, of Transp. and Development, defendant-appellant.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

For the reasons assigned in Suit No. 5-277, 424 So.2d 522 of our docket the judgment is reversed and it is now ordered that there be judgment in favor of defendant State of Louisiana, Department of Transportation and Development (Office of Highways) dismissing plaintiffs’ Suit No. 5-278 at their cost.

REVERSED.


text:
    Harvey ROLLINS v. FORD MOTOR COMPANY, et al.
    No. 5-287.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Joseph W. Nelkin, Warren J. Pickle, New Orleans, for Harvey Rollins, plaintiff-appellant.
    McLoughlin, Barranger, Provosty & Me-lancon, Lloyd C. Melancon, New Orleans, for Chevron Chemical Co., defendant-appel-lee.
    Borrello & Huber, Bruce J. Borrello, Me-tairie, for Crescent Ford Truck Sales, Inc., defendant-appellee.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   CHEHARDY, Judge.

Plaintiff, Harvey Rollins, filed suit against several defendants, Ford Motor Company, Chevron Chemical Company, Te-soro Petroleum Corporation, Efficient Truck Repair & Painting, Inc., and Crescent Ford Truck Sales, Inc., to recover for burns and other injuries sustained by him while off-loading 1,500 gallons of high test gasoline at Chevron Chemical Company’s plant in Belle Chasse, Louisiana.

During the course of plaintiff’s suit, each defendant was dismissed on motions for summary judgment except Chevron Chemical Company. Chevron answered, denied plaintiff’s allegations and alternatively asserted that plaintiff was guilty of contributory negligence and assumed the risks inherent in the off-loading operation.

The matter was tried and judgment was rendered at the end of plaintiff’s case upon Chevron’s motion for a dismissal. Plaintiff has appealed.

The record shows that on June 17, 1977, plaintiff was employed by Petroleum Distributing Company, Inc., as the driver of a tractor-trailer tank truck. On that date, he made a delivery of 1,500 gallons of high test gasoline to defendant’s Belle Chasse plant. When plaintiff arrived at defendant’s plant, he was required to present identification, evidence of his cargo, and a copy of defendant’s purchase order. He was then sent to the shift supervisor’s office, where he was directed to the location of an underground storage tank into which his gasoline cargo was to be discharged. Defendant’s shift supervisor directed plaintiff to a parking spot near the underground tank and to wait before discharging his cargo until approval was obtained by another supervisor.

Thereafter, a Chevron supervisor came to the site and verified the amount of fuel delivered by plaintiff. He then inspected the hookups between the tank truck and the underground tank, after which he gave his approval for plaintiff to discharge the fuel.

Plaintiff commenced unloading using a power take-off pump, powered by the engine of the tractor portion of the truck. The Chevron supervisor monitored the discharging process for about 15 minutes, after which he signed delivery tickets and weigh bills, which he instructed plaintiff to present to someone at the gate upon leaving the premises.

Plaintiff testified he monitored the unloading operation from the top of the truck and from ground level. After about half an hour, the first 700 gallons were unloaded and plaintiff began discharging the remaining 800 gallons from a different compartment in the tank trailer. Plaintiff testified he monitored the pumping process from the second compartment for approximately 35 minutes, at which time he entered the cab of the tractor to complete his paperwork.

Plaintiff testified that shortly after entering the cab, he looked up from his work and saw flames in his rearview mirror. He slid to the passenger side, but his escape was blocked by flames. He then slid back across the seat and jumped from the truck through the flames, suffering burns to his upper torso, forearms and face.

The tractor portion of the truck was totally destroyed by the fire, and the tank trailer was burned on its front and bottom. Numerous burn patterns were located on the cement at and near the fill hole of the underground storage tank in the area where the truck was parked.

Plaintiff urges defendant’s strict liability and defendant’s negligence in various respects as the cause of his injuries. In his reasons for judgment, the trial judge concluded plaintiff did not prove any negligence on the part of Chevron Chemical Company. The trial judge made the following succinct statement:

“Plaintiff has failed to prove any negligence on the part of Chevron Chemical Company. On the contrary, the evidence indicates that plaintiff was negligent in failing to use the gravity flow mechanism for the discharge of gasoline from the tank car to the storage tank, and, alternatively, in remaining in the cab of the truck while the gasoline was being pumped by a motor. These actions on the part of the plaintiff were violative of the National Fire Protection Association Regulatory Standards.”

The record amply supports this conclusion.

Plaintiff’s evidence, except for the testimony of a fire origin expert, did not indicate the cause and source of ignition for the fire which caused his injuries. The unloading of the 1,500 gallons of gasoline was, except for a short period of time, unwit-nessed by anyone but plaintiff. Moreover, at the time the fire started, plaintiff by his own admission was in the cab of the tractor with his back to the fire and he could not testify as to its origin. Therefore, plaintiff called George M. Martinsen, Jr., who was qualified as an expert in the field of fire origins. Much of his testimony was based on the Regulatory Standards of the National Fire Protection Association.

In addition to testimony that he was in the cab of the tractor at the time the fire began, plaintiff also stated that ground wires were not affixed to the tank and that the vehicle’s engine was left running because he used a motorized take-off pump to discharge his cargo of gasoline even though the tank could have also been drained of its contents by gravity without the use of the motor-driven pump.

After being confronted with several pamphlets and other publications of the National Fire Protection Association, Mr. Mar-tinsen admitted that the power take-off pump should not have been used in the absence of grounding wires attached to the tank. He also admitted that the truck driven by plaintiff could have been unloaded by gravity flow and that the unloading could have been safely accomplished in this manner without the need for a ground wire.

Martinsen also read Standard 51-20 of the National Fire Protection Association, which provides:

“The driver, operator, or attendant of any tank vehicle shall not remain in the vehicle but shall not leave the vehicle unattended during the loading or unloading process. Delivery hose, when attached to a tank vehicle, shall be considered to be a part of the tank vehicle.”

He admitted that based upon his expertise and familiarity with the Standards, the content of the Standards applied to the delivery of gasoline by the plaintiff in this case. In view of this testimony by plaintiff’s own witness, we uphold the trial judge’s decision that plaintiff was guilty of negligence in the unloading of the gasoline tank truck and that this negligence precludes his recovery.

Plaintiff’s petition contains no reference to the strict liability of Chevron Chemical Company. On the contrary, it merely outlines various aspects of negligence asserted by plaintiff against this defendant. Only later in the case, and on appeal, has plaintiff injected the theory of strict liability under C.C. art. 2317 as set forth by the Supreme Court in Loescher v. Parr, 824 So.2d 441 (La.1975). Plaintiff argues defendant was the custodian of an underground storage tank which had vices in its opening which caused injury to plaintiff and that defendant was the custodian of the parking area, which had an existing vice or defect in the form of a slope which he alleges caused gasoline to flow from the fill hole of the underground tank toward the area where plaintiff’s truck was located, in violation of C.C. art. 2322. Plaintiff further advances the argument defendant is liable on a strict liability theory under C.C. arts. 2317 and 2320 because of improper and inadequate supervision and inspection by a Chevron employee.

We need not decide the issue of defendant’s strict liability because the evidence in the record clearly establishes the existence of one of the defenses to strict liability, namely “victim fault”. See Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980); Sepulvado v. State, Through Dept. of Hwys., 395 So.2d 858 (La.App. 2d Cir.1981); Kirsch v. Kappa Alpha Order, 373 So.2d 775 (La.App. 3d Cir.1979).

The evidence establishes that plaintiff occupied the cab of a vehicle discharging volatile gasoline when he was not obliged to do so and that he used an engine-driven pump to discharge the gasoline without grounding the tank when he could have accomplished the same result with gravity flow techniques. The record does not contain any evidence indicating the tank into which the gasoline was being discharged was a dangerous instrumentality. Nevertheless, assuming for the sake of this decision it was, certainly the actions of plaintiff constituted fault on his part sufficient to bar his recovery even in a strict liability situation.

The tank and its orifice were passive instrumentalities, they did not move, nor were they being used by anyone other than plaintiff. The acts which we have concluded were negligence on the part of plaintiff are more than sufficient to also constitute victim fault for the purposes of strict liability. A similar holding was reached in Wilkinson v. Hartford Acc. & Indem., 400 So.2d 705 (La.App. 3d Cir.1981).

Finally, plaintiff argues the trial judge committed error by granting defendant’s motion for “directed verdict” (judgment of dismissal). C.C.P. art. 1810(B). He argues that when there is some evidence in plaintiff’s favor, a directed verdict is not appropriate and that on motions for directed verdict, a court of appeal must view and interpret the facts in the record from a viewpoint most favorable to the party opposed to the motion. Dupree v. Pechinay Saint Gobain Co., 369 So.2d 1075 (La.App. 1st Cir.1979); Grimes v. Stander, 394 So.2d 1332 (La.App. 1st Cir.1981). However, it has been held that, unlike a motion for a directed verdict in a jury trial, C.C.P. art. 1810(B) mandates the trier of fact in a judge trial to evaluate all the evidence and render a decision based upon a preponderance thereof without any special inferences in favor of the opponent to the motion. Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir.1980).

Moreover, in the present case, it was clear after plaintiff completed his evidence that even if some evidence might slip in while defendant was presenting its case to establish negligence or strict liability on its part, the actions of the plaintiff by his own admission constituted both contributory negligence and victim fault which would have precluded recovery. Hence, the trial judge did not commit error in granting a judgment of dismissal in defendant’s favor.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Peter Joseph McCULLOUGH and Mildred Torres McCullough v. Mrs. Ruby Johanna Knollman HART and Mrs. Marguerite Grace Knollman Orr.
    No. 5-262.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Linda G. Johnson, New Orleans, for plaintiffs-appellees.
    Wilmer Glauner Hinrichs, New Orleans, for defendants-appellants.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

This is a suit for partition of six parcels of immovable property in St. John the Baptist Parish, Louisiana. From a judgment ordering partition by licitation, defendants appeal. We set aside that judgment and remand the case for presentation of further evidence.

The plaintiffs, Mr. and Mrs. Peter McCullough, allege that they own an undivided one-half interest in the six lots and that the defendants, Mrs. Ruby Hart and Mrs. Marguerite Orr, each own an undivided one-fourth interest. Plaintiffs’ petition asserted they and the defendants were unable to agree on a nonjudicial partition. They averred the property is divisible in kind, but pleaded alternatively it is insusceptible of division in kind because an old house and several old outbuildings are constructed thereon. Plaintiffs also alleged an inventory was unnecessary, and stated they were filing a sworn descriptive list of the property in place of an inventory. (No such descriptive list is in the record before us.)

The defendants, after numerous requests for extensions of time to enter responsive pleadings, filed an answer averring that plaintiffs’ description of the property was incomplete; that the improvements located on one of the lots are in such deteriorated condition they would pose no barrier to an in-kind partition; and that plaintiffs refused to agree to an in-kind partition, were adamant in wanting the sale of the property as a whole, and had rejected numerous proposals for the nonjudicial partition of the property.

The trial took place on April 22, 1981. There is no transcript of the proceedings, and it is clear from the appellants’ brief that no testimony was presented, the case being submitted on the pleadings and the few documents entered in evidence by the parties. Based on this and on a rough sketch of the property attached to defendants’ supplemental and amended answer, the trial judge rendered judgment ordering a partition by licitation. In his reasons for judgment, he stated:

“Action for partition of four parcels of land. The cursory inspection of the map attached to the pleadings reveals four narrow strips of land, non-eontiguous and with the front small parcel fronting on the river and the remaining three parcels in line but disconnected with the rear of the last parcel at the 80 Arpent Line.
“Division in kind would render the divided parcels almost valueless and certainly would diminish the value of the lands as a whole.
“This court must find that partition by licitation must be had.”

Defendants have appealed. They seek, first, a reversal on a finding the property cannot be partitioned in kind. Alternatively, if any portion of the property is found to be subject to partition by licitation, defendants seek to have the public salé ordered on the parcels separately rather than as an aggregate, and further to have the court establish a minimum price for the first public offering.

The exhibits consisted of four letters from Raymond Gendron, a realtor in Norco, Louisiana. In Exhibit D-1, dated July 15, 1976, Gendron stated he had made an appraisal of the property, and he valued it as a whole at $68,884.00. Exhibit D-2 is another letter from Gendron, dated July 15, 1976, in which he divided the property into four parcels. (He stated his title research indicated the other two lots had been sold previously.) He also stated he could not determine if there were any batture rights to the property. He valued the four parcels separately at $32,138.00, $28,950.00, $38,-987.00 and $3,250.00.

Exhibit D-3 is Gendron’s October 18, 1977 reply to a letter from defendants’ counsel, in which Gendron confirmed that the property would bring less if sold as one parcel rather than in individual pieces.

Exhibit P-1 is a May 22,1980 letter from Gendron to plaintiff Peter McCullough, in which he stated, “Due to the narrow widths of the properties * * *, it is not advantageous to divide these properties in kind.” This sentence was followed by a description of the properties substantially like that contained in plaintiffs’ original petition.

LSA-C.C. arts. 1339 and 1340 provide:

“When the property is indivisible by its nature, or when it cannot be conveniently divided, the judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law, and in the manner hereinafter prescribed.” Art. 1339.
“It is said that a thing can not be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it.” Art. 1340.

Generally, partition in kind is favored over partition by licitation, and unless the property is indivisible by nature or cannot conveniently be divided, the court shall order partition to be made in kind. LSA-C. C.P. art. 4606.

One who brings an action against his co-owners for partition by licitation of the property has the burden of establishing that the property is not susceptible of division in kind. Tri-State Concrete Co., Inc. v. Stephens, 406 So.2d 205 (La.1981); Babineaux v. Babineaux, 237 La. 806, 112 So.2d 620 (1959).

In determining whether property can be divided into parcels of equal value for an in-kind partition without adversely affecting the value of the whole, only the present value is considered. National American Bank of New Orleans v. Cleveland, 273 So.2d 848 (La.App. 4th Cir.1973), writs denied 276 So.2d 701.

The only evidence as to value of the land presented in the court below were Mr. Gen-dron’s five-year-old estimates. There was no evidence of its current value based on the nature of its present use.

In addition, the record does not establish the extent of the parties’ property rights. The description of the lots in the petition noted exceptions, prior transactions in which portions of some of the lots were sold off, and contained a reservation to the parties’ ancestor-in-title of mineral rights and batture rights. If, as defendants contend, these rights still exist in the parties before us, then obviously their value would need to be included to properly determine a partition.

We conclude the plaintiffs did not prove, by a preponderance of the evidence, that the properties are not subject to a partition in kind.

On the other hand, there is some evidence that one or more of the lots may not conveniently be divisible. This evidence, however, is insufficient to establish clearly such indivisibility.

All in all, it would be unjust for us to affirm or reverse the trial judge’s decision on the meager evidence before us. The court of appeal may remand a case to the trial court for introduction of further evidence where it is necessary to reach a just decision. LSA-C.C.P. art. 2164; Succession of Brice, 390 So.2d 905 (La.App. 2d Cir.1980); Guilott v. Guilott, 326 So.2d 551 (La.App. 3d Cir.1976), writ denied 330 So.2d 316.

Considering our decision, it is unnecessary to address the other issues raised on appeal. For the foregoing reasons, therefore, the judgment of the district court is set aside and the case is remanded for further proceedings consistent with this opinion. Assessment of costs for this appeal shall await final determination of the partition action.

SET ASIDE AND REMANDED.