author: STOKER, Judge.

text:
    Hans G. WEISSBOHN et ux, Plaintiff-Appellee, v. GULF INSURANCE COMPANY et al., Defendant-Appellant.
    No. 7945.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendant-appellant.
    J. Marc Lampert, Alexandria, Asa Skinner, Leesville, for plaintiff-appellee.
    Before GUIDRY, STOKER, and DOU-CET, JJ.
   STOKER, Judge.

Defendant, Gulf Insurance Company, appeals a general damage award in favor of plaintiff, Edelgard Weissbohn. The defendant admits liability and on appeal contends only that the award for personal injury is excessive. The sole issue on appeal is the quantum awarded to Mrs. Weissbohn.

The trial court awarded plaintiff $25,000 in general damages and $1,711.18 for past medical and incidental expenses. Defendant seeks to have the general damage award reduced to no more than $10,000.00.

It is clearly established in our law that much discretion is vested in the trier of fact in assessing general damages. LSA— C.C. art. 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) and Reck v. Stevens, 373 So.2d 498 (La.1979) emphasize that before an appellate court can change a general damage award made by a trial court the record must clearly reveal that the trier of fact abused its discretion in making the award. As mandated by these decisions our initial inquiry is whether the trial court’s award for the particular injuries and their effects on this particular injured person was a clear abuse of discretion. At this initial inquiry the role of prior awards is limited. They may serve as aids only when the present award is shown to be greatly disproportionate to the mass of past awards for truly similar injuries. Appellant cites numerous prior awards in order to show the award to Mrs. Weissbohn is excessive. We are unaided by these awards since we find none of them truly similar to the instant case.

We have carefully considered the evidence upon which the award is based and do not find that the trial court abused its much discretion. We affirm.

The record reveals that the plaintiff, Edelgard Weissbohn, sustained personal injuries on June 3,1978, when her automobile was rear-ended by a large tractor trailer truck on Highway 171 South. At the time of the accident Mrs. Weissbohn was thirty-three years old and owned and operated a small restaurant known as Pak-A-Pig Barbeque.

Within an hour of the accident plaintiff underwent an examination in the emergency room of the Fort Polk hospital. Her initial complaints were of pain in the right leg, dizziness, nausea, and stiffness of the neck and shoulders. The attending physician prescribed the use of a cervical collar, hot packs, bed rest and various pain medications.

In addition to numerous visits to the Fort Polk hospital plaintiff also sought treatment from Dr. J. E. Hearne, a general practitioner, Dr. Heinz K. Faludi, a neurological surgeon, Dr. Stanley K. Gilbert, an orthopedic specialist, and Dr. Walter A. Fletcher, a chiropractor. Plaintiff was also examined by Dr. Douglas L. Gamburg, an-orthopedist, at the request of the defendant. The record indicates that plaintiff made 52 or 53 trips to various doctors from the time of the accident on June 3, 1978, until the time of the trial on October 23, 1979. The physicians agree that Mrs. We-issbohn sustained a cervical sprain or strain.

Dr. Faludi examined Mrs. Weissbohn on July 25, 1978, approximately seven weeks after the accident. At that time plaintiff’s principal complaints were neck pains and severe headaches. Dr. Faludi diagnosed plaintiff’s injury as a moderately severe cervical sprain to the neck musculature and ligamentous structures and articulations with irritation to the occipital nerves including minor upper thoracic sprain. The doctor advised Mrs. Weissbohn to continue the use of the cervical collar, the hot packs and medication. Dr. Faludi indicated to Mrs. Weissbohn that it would take several months before her condition would improve.

On April 2, 1979, approximately ten months post accident, Mrs. Weissbohn again visited Dr. Faludi. Her complaints at that time included severe headaches with pain penetrating through her head ending in the area of the eyes. In addition plaintiff complained of neck pains and lower back pains. Upon Dr. Faludi’s recommendation plaintiff underwent a myelogram on April 17, 1979. The myelogram ruled out the possibility of a herniated cervical disc and confirmed the diagnosis of nerve irritation. On April 18, Dr. Faludi performed a bilateral occipital neurectomy designed to relieve Mrs. Weiss-bohn’s headache pain. This operation involved incising through the back of the neck down to the muscular layer, finding the major occipital nerves and clipping out 5 to 6 centimeters of nerve on each side. The operation caused numbness to the back of Mrs. Weissbohn’s head. This numbness is permanent. Plaintiff experiences discomfort because of the difference in feeling in the areas which are numb and those areas which are not numb. The operation left plaintiff with a scar which extends below the hairline. The operation resulted in a 1% permanent disability for plaintiff because of the numb areas.

As indicated plaintiff was seen and treated by several other physicians. These visits took place both prior to and after treatment by Dr. Faludi. In essence these doctors agreed with Dr. Faludi’s diagnosis and treatment and re-iterated that it would take time for Mrs. Weissbohn’s sprain to resolve.

Mrs. Weissbohn consulted Dr. Stanley K. Gilbert, orthopedic specialist at Fort Polk, Louisiana, on July 30, 1979. After making an orthopedic examination he thought Mrs. Weissbohn “manifested symptoms of a chronic cervical strain without evidence of bony or neurologic pathology.” This diagnosis was based on “her history, mechanism of injury, as well as her current symptoms and physical findings of the limitation of extension and decreased rotation, primary on rotation to the left.” Certain motions of the neck resulted in producing pain. Dr. Gilbert had Mrs. Weissbohn return on the following day at which time he discussed her condition with her:

“Basically, as I outlined above she had sustained a chronic strain of the supporting ligaments and muscles at the posteri- or aspect of her neck. I told her that it was likely that she would have a residual amount of pain for the rest of her life, but that this (sic) very well slowly improve. The exact degree of residual pain is somewhat open to question. Each case is a little bit different and that while she could expect some pain relief I felt that she would have some degree of residual pain.”

No drugs or medication were prescribed but Dr. Gilbert did suggest certain exercises and procedures to give Mrs. Weissbohn relief from her inability to sleep because of neck discomfort. He advised her to avoid activities such as heavy lifting and straining. Dr. Gilbert was of the opinion that certain phases of Mrs. Weissbohn’s work would aggravate her pain. He suggested several procedures and changes in her working arrangements that might lessen the effect of work activity on her pain. Dr. Gilbert felt that plaintiff would be left with a certain amount of residual pain but did think that there would be some slow diminution of the pain over the years, the course of which he could not predict.

Dr. Gilbert examined Mrs. Weissbohn on the one occasion only. He readily agreed that a physician who regularly saw her and treated her would be in a better position to evaluate her condition and prognosis.

The evidence establishes that plaintiff experienced pain and discomfort for a period of ten months, underwent many types of treatment, and endured a myelogram and bilateral occipital neurectomy which left a disfiguring scar. Plaintiff will suffer some pain for the rest of her life.

Considered against the mass of quantum cases not involving scars, it would appear to us that the trial court’s award of $25,000.00 is excessive. Awards may be found presenting somewhat similar circumstances ranging from $10,000.00 to $20,000.00 with a concentration between $15,000.00 to slightly less than $20,000.00. The trial court summarized its conclusions on the question of quantum in these comments:

“I have reviewed the cases cited by both counsel. Mueller v. New Orleans Public Service, Inc., 348 So.2d 1296 at 1298 presents a cervical strain of a more serious nature with lengthier residuals and more objective findings. If the strain were the only condition involved herein, the award in the Mueller case— $25,000.00 — would seem to be excessive herein. Considering, however, that in the present case plaintiff endured- the diagnostic procedure known as a myelogram as well as the occipital neurectomy, and considering the resultant permanent numbness, and the disfiguration, albeit slight, the sum of Twenty Five Thousand ($25,000.00) Dollars is regarded as being appropriate in this case and will be awarded to the plaintiff.”

The trial court referred to plaintiffs surgical scar as “slight”. The scar as depicted in a photograph (Plaintiff’s exhibit P-8) is smooth and straight. It extends downward from a point in Mrs. Weissbohn’s hair at the back of her head even with the tops of her ear lobes to a point just below the middle of her neck.

If we were to consider the highest reasonable award under the guidelines of Coco v. Winston Industries, Inc., supra, and Reck v. Stevens, supra, (without giving weight to the neck scar) to be approximately $20,-000.00, the trial court award of $25,000.00 to include an award for the scar may be justified. In view of the trial court’s comments quoted above and giving consideration to the scar we cannot say that the trial court abused its much discretion.

For the reasons assigned, the judgment appealed from is affirmed. All costs of this appeal to be assessed ,to defendant-appellant.

AFFIRMED.

      . The original defendants were Gulf Insurance Company, Blackmon Trucking Company, Inc., and Clifton D. Fowler. The latter two defendants were dismissed at the trial by the plaintiffs and Gulf Insurance Company admitted liability. Tr. 348 (Vol. 3)

      . Harris v. Lee, 377 So.2d 1352 (La.App. 1st Cir. 1979): $15,000 (reduced from $45,000); Schexnayder v. United Services Automobile Association, 375 So.2d 736 (La.App. 4th Cir. 1979): $15,000; Bardfield v. New Orleans Public Belt Railroad, 375 So.2d 716 (La.App. 4th Cir. 1979): $10,000; Vicknair v. Olin, 371 So.2d 360 (La.App. 4th Cir. 1979): $15,000; Pitre v. Bourgeois, 371 So.2d 331 (La.App. 4th Cir. 1979), writ denied, 374 So.2d 657 (La.1979): $17,500; Rond v. Sims, 355 So.2d 591 (La.App. 4th Cir. 1978), writ refused, 357 So.2d 1164 (La.1978): $12,000; Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir. 1977), writ refused, 354 So.2d 1050 (1978): $18,900; Derouen v. Southern Pacific Transportation Co., 351 So.2d 300 (La.App. 3rd Cir. 1977), writ refused, 353 So.2d 1046 (La.1978): $17,500; Crandall v. Scott, 350 So.2d 922 (La.App. 4th Cir. 1977): $12,000; Mueller v. New Orleans Public Service, Inc., 348 So.2d 1296 (La.App. 4th Cir. 1977): $25,000; Dominque v. Continental Insurance Company, 348 So.2d 209 (La.App. 3rd Cir. 1977): $30,000; Gaudet v. Allstate Insurance Company, 346 So.2d 333 (La.App. 4th Cir. 1977), writ refused, 350 So.2d 892 (1977): $10,000 (reduced from $40,000); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977): $30,000 (increased from $15,000); and Prejean v. United States Gypsum Co., 345 So.2d 181 (La.App. 3rd Cir. 1977): $20,000.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Francis J. DUCHARME, Plaintiff-Appellee, v. Jerry GUIDRY, Harold Stoutes and Allstate Insurance Company, Defendant. Appeal of STOUTES.
    No. 7948.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Davidson, Meaux, Sonnier & Roy, M. Candice Hattan, Lafayette, and Brinkhaus, Dauzat & Falgoust, Jerry Falgoust, Opelou-sas, for defendant-appellant.
    Richard C. Meaux, Jr., Lafayette, for plaintiff-appellee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   DOUCET, Judge.

Plaintiff, Francis J. Ducharme, brought this suit to recover property damages for the negligent clearing of his land. He named as defendants, Jerry Guidry, the owner of the adjacent land, Guidry’s insurer, Allstate Insurance Company, and Harold Stoutes, the owner of a business which clears land.

Plaintiff alleges that on or about August 22,1979, Guidry contracted with Stoutes, to clear Guidry’s property. Plaintiff further alleges that Stoutes’ employee, “Man” Will-ingham, operated a bulldozer which negligently cleared his property.

Plaintiff seeks recovery from Guidry and his Insurer for his personal negligence and his negligent hiring of Stoutes to clear his property, and from Stoutes for his personal negligence and the negligence of his employee, Willingham.

Defendants Guidry and Allstate Insurance Company answered the petition and filed a third party demand against Stoutes, seeking indemnification for any judgment rendered, and alternatively for contribution.

Stoutes was personally served on the 5th day of January, 1980, and a Preliminary Default was entered against him on the 12th day of March, 1980. On March 24, 1980, the Confirmation of Default was begun and the District Court continued the taking of evidence until the 1st day of April, 1980. Judgment was granted for plaintiff and against Stoutes on April 1, 1980, in the amount of $60,000.00. Stoutes appeals.

The only issue on appeal is whether there was sufficient competent evidence to support a default judgment.

In his petition, plaintiff alleged that Stoutes was negligent in hiring an incompetent bulldozer operator and in failing to supervise him properly. In addition, he alleged that Stoutes was vicariously liable for his employee’s negligence. On appeal, Stoutes argues that the evidence presented by plaintiff was insufficient to establish his liability under any of these theories.

After carefully reviewing the evidence in the record, we agree with Stoutes’ contention. In order to recover under any of the theories set out in his petition, plaintiff had to prove that the damage was caused by an employee of Stoutes. Stoutes correctly argues that the evidence does not support such a finding.

The only evidence relevant to this issue was the following testimony of Jerry Veaz-ey, plaintiff’s stepfather:

Q. Okay. Is your property immediately adjacent to that of Jerry Guidry?
A. It is.
Q. Okay. On or about May 22, 1979, were you present at your home when Mr. Guidry attempted to bulldoze his property?
A. Yes.
Q. Okay. At this time, did you talk to Mr. Guidry?
A. I sure did.
Q. Did you happen to ask him who had contracted to bulldoze his property?
A. I asked him who the bulldozer belonged to; if it was for the parish, or if he had hired it. He said it was for Harold Stoutes.
Q. Okay. Did you also ask the bulldozer operator?
A. I sure did.
Q. What did he tell you?
A. I had never met Harold Stutes. I asked him if that was his dozer. He told me no, he said, T work for Harold Stutes.’ THE COURT. You saw them bulldoze the trees on your step-son’s property?
A. I sure did.
THE COURT. Did you talk to him after it was over? Is that when you noticed it?
A. Well, when they first started, I told them they were going on the wrong place.
THE COURT. And they went ahead anyway?
A. They went ahead anyway. I sure told them. I told Jerry, and I told the dozer driver. I said, ‘You all better check your plans back.’ I said, ‘You all are going the wrong way.’
THE COURT. And the dozer driver admitted he had been hired by Harold Stutes. He said he worked for Harold Stutes?
A. Yes, he told me that.
THE COURT. And he said that was Harold’s dozer and everything?
A. That’s right.
THE COURT. Okay. That’s fine.”

Stoutes correctly argues that this hearsay testimony could not be used to establish that the bulldozer operator was his employee.

Article 1702 of the Code of Civil Procedure provides that “[a] judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” This provision has been construed to mean that in confirming a default, the plaintiff must prove all of the essential allegations of his petition as fully as if they had been specifically denied. Hearsay evidence does not sustain this burden of proving a prima facie case. Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir. 1980).

In view of the fact that plaintiff has failed to prove one of the essential allegations of his petition and has therefore failed to establish a prima facie case, we conclude that the default judgment was erroneously rendered. Accordingly, it is reversed and set aside, and this matter is remanded to the district court for further proceedings consistent with the views expressed herein. All costs of this appeal are assessed against the plaintiff-appellee.

REVERSED AND REMANDED.


author: FORET, Judge.

text:
    CITY OF LAFAYETTE, Plaintiff-Appellee, v. BUTCHER AIR CONDITIONING COMPANY, INC., Defendant-Appellant.
    No. 7951.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      William E. Logan, Jr.,. Keith A. Stutes, Lafayette, for defendant-appellant.
    Steven Baker and Allen R. Ingram, Lafayette, for plaintiff-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   FORET, Judge.

This is a suit for a mandatory injunction filed by the City of Lafayette against the defendant, Butcher Air Conditioning Company, Inc. to enforce compliance with an ordinance requiring air conditioning and electrical contractors to provide ladders for city inspectors. From a judgment in favor of the plaintiff ordering the defendant to comply with the ordinance, the defendant has appealed to this Court.

The sole issue is the constitutionality of the City of Lafayette Ordinance Number 0-1648 which adopts the Standard Mechanical Code of the Southern Building Code Congress International, Inc. The provision of the building code in question is Section 107-3 which reads:

“107.3 — Material and labor inspections
The equipment, material, power, and labor necessary for the inspection and test shall be furnished by the installer.”

It is a well settled rule of law that a city ordinance, like an act of the legislature, is presumed to be constitutional, and that the party who attacks it has a burden of establishing, by clear and convincing evidence, that the ordinance is unconstitutional. This rule is strictly adhered to in cases involving ordinances enacted in the exercise of the city’s police power. Hi-Lo Oil Company v. City of Crowley, 274 So.2d 757 (La.App. 3 Cir. 1973), writ refused 277 So.2d 673 (La.1973); Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400 (1968); Hunter v. City of Shreveport, 216 So.2d 140 (La.App. 2 Cir. 1968), writ refused, 253 La. 323, 217 So.2d 414 (1969).

The jurisprudence concerning the validity of a city’s exercise of the police power was summarized by this Court in City of Lake Charles v. Southern Pacific Transp. Co., 310 So.2d 116 (La.App. 3 Cir. 1975), writ refused, 313 So.2d 600 (La.1975), quoting Hi-Lo Oil Company v. City of Crowley, supra:

“The ordinance should be upheld if any set of facts can be conceived from which it could be concluded that there is a reasonable relationship between its provisions and the public health, safety, morals or general welfare. Everhardt v. City of New Orleans, supra. In order to justify a holding that the legislative action is arbitrary, unreasonable or unnecessary, it must be shown that there was no room for a reasonable difference of opinion, and that there was no substantial evidence upon which the legislative action could have been justified. Torrance v. Caddo Parish Police Jury, 119 So.2d 617 (La.App. 2 Cir. 1960); Archer v. City of Shreveport, 85 So.2d 337 (La.App. 2 Cir. 1956).
“The court should not set up its judgment against that of the city authorities as to the wisdom of the method adopted to accomplish a legitimate object, unless the method employed by the city is clearly unreasonable. The method provided in the ordinance need not necessarily be the best. The courts thus will not invalidate an ordinance, which has been duly enacted and is within the municipal competency, unless its invalidity appears on its face or is established by admissible extrinsic evidence. Gibson v. City of Baton Rouge, 161 La. 687, 109 So. 339 (1926); Hunter v. City of Shreveport, supra; City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503 (1947).
“In order that a city ordinance may be sustained as the legitimate exercise of the city’s police power, however, the legislation must have for its object the prevention of some offense or manifest evil, or the preservation of the public health, safety, morals or general welfare. The exercise by the city of its police power must have a substantial basis if it is to be upheld. The purported exercise of that power cannot be made a mere pretext for legislation that does not fall within it. There must be some substantial connection between the purpose of the regulation and the provisions of it, and the provisions must in some appropriate manner be designed for and tend toward the accomplishment of the legitimate objects for which the power is exercised. City of New Orleans, v. Southern Auto Wreckers, 193 La. 895, 192 So. 523 (1939); Schwegmann Bros. v. Louisiana Board, Etc., 216 La. 148, 43 So.2d 248 (1949); City of Lake Charles v. Hasha, 238 La. 636, 116 So.2d 277 (1959); Arkansas Louisiana Gas Company v. Louisiana Department of Highways, 104 So.2d 204 (La.App. 2 Cir. 1958).
“The test of whether the ordinance is a valid exercise of the police power of the city in the constitutional sense depends on whether, under all of the existing circumstances, the regulation is reasonable, and whether it is designed to accomplish a purpose properly falling within the scope of the city’s police power. Reynolds v. Louisiana Board of Alcoholic Beverage Control, 249 La. 127, 185 So.2d 794 (1965); State v. Birdsell, 235 La. 396, 104 So.2d 148 (1958); City of Baton Rouge v. Rebowe, 226 La. 186, 75 So.2d 239 (1954).”

The purpose of the ordinance in question is to provide a system of controlling the installation, repair, maintenance, alteration and use of air conditioning, heating, mechanical refrigeration and ventilating systems within the city. Because of the potential hazards to the safety and health of the community posed by improper installation and maintenance of such systems, it is a valid exercise of the police power to regulate them.

The defendant contends that the provisions of the ordinance are vague, over-broad, and unreasonable. This contention is without merit. The evidence shows that over one hundred electrical and air conditioning contractors are covered by the ordinance and that the ordinance is uniformly applied. The evidence further shows that the defendant is the only contractor to refuse to comply with the ordinance. We cannot say that the regulations imposed by this ordinance are unreasonable, vague, or overly broad.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to the defendant-appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Lily Davies BODIN and United States of America (Intervenor), Plaintiffs, v. Joan A. BODIN, Defendant-Appellee. Appeal of United States.
    No. 7956.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      See also, 367 So.2d 1240.
    Frances 0. Allen, 1st Asst. U. S. Atty., Shreveport, for plaintiff-appellant.
    Shelton & Legendre (Thomas F. Porter, IV, Lafayette, for defendant-appellee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   GUIDRY, Judge.

The record on appeal in this case is very incomplete. It is only by reference to the pleadings of the parties, their briefs, and the opinion of this court in a prior appeal that we are able to reconstruct the background of the instant controversy.

The above sources indicate that on September 8, 1977, one, Lily Davies Bodin instituted a suit for partition by licitation against Joan A. Bodin, divorced wife of Luther R. Doiron. By means of an amending petition the plaintiff made the United States of America, through the Internal Revenue Service, a party to this suit because of certain outstanding Federal tax liens filed against Joan Bodin Doiron in the mortgage records, which ostensibly affected the interest of Joan Bodin in the property sought to be partitioned. Presumably the several tax liens, of record at the time suit was filed, were for unpaid income taxes due by Luther R. and Joan Bodin Doiron for the periods ending December 31, 1967, December 31, 1968 and December 31, 1969. Joan Bodin filed answer to the petition of plaintiff together with a rule to show cause seeking cancellation of all encumbrances bearing upon the property sought to be partitioned, urging that the recorded encumbrances secured debts of the former community existing between her and her divorced husband; she had formally renounced the community of acquets and gains; and, the property involved in the lawsuit was her separate and paraphernal property. After a hearing on the rule to show cause judgment was signed on February 28, 1978, ordering all mortgages, etc., cancelled, insofar as the property involved in the partition suit was concerned, except for one Federal tax lien, being a lien arising from a tax assessment made against the taxpayers, Luther R. and Jo Ann (Joan) Doiron (Joan A. Bodin), on June 25, 1973, for income taxes for the period ending December 1, 1967, in the amount of $5,107.02, for which the record was kept open. No appeal was taken from the judgment of February 28, 1978. Trial was had on the merits and on April 27, 1978 judgment was rendered ordering a partition by licitation and referring all claims, liens and encumbrances to the proceeds of sale. Judgment was also rendered against the United States of America cancelling the tax lien not previously considered on trial of the earlier rule. The United States of America appealed from the judgment of April 27, 1978 but only insofar as it ordered cancellation of the tax lien for unpaid income taxes for the period ending December 31, 1967. On appeal, this court reversed the judgment of the trial court and ordered that the lien be reinstated and referred to the proceeds of the sale. See Lily Davies Bodin v. Joan A. Bodin, United States of America, Intervenor, supra.

Presumably, following remand, the property was sold and on May 14, 1979 the trial court rendered judgment approving the proces verbal and tableau of distribution and ordered that the amount allocated to Joan A. Bodin, i. e., the sum of $25,778.92, be deposited in the registry of court. Presumably this order also required all parties to assert any and all claims to the amount so deposited within forty (40) days or on or before June 23,1979. The record before us contains none of the pleadings and evidence offered in support of the judgments previously rendered in this matter nor does it contain any of the judgments previously rendered. The first pleading appearing in this record on appeal is a motion for a rule to show cause, filed by the United States of America, asserting its entitlement to such portion of the funds on deposit in the registry of court sufficient to satisfy its liens for 1967, 1968 and 1969, unpaid income taxes due by Joan Bodin, i. e., the sum of $19,-302.11, plus interest accruing on and after April 18,1979 and appropriate penalties and costs. There next appears in the record an exception of res judicata filed by the defendant, Joan Bodin, wherein it is alleged that on February 28, 1978, the trial court rendered judgment cancelling, among other encumbrances, the liens filed by the United States of America against Joan A. Bodin for unpaid income taxes for the periods ending December 31, 1968, and December 31, 1969. Exceptors. further alleged that said judgment being now final bars any recovery by the U.S.A. of unpaid taxes for 1968 and 1969. Defendant also filed a pleading entitled “MOTION TO DISMISS CLAIM OF UNITED STATES AND RULE TO SHOW CAUSE”, wherein she again sets up the February 28, 1978 judgment in bar of the claim of the United States of America for recovery of unpaid taxes for the years 1968 and 1969. Defendant later amended the latter motion to assert „her right to a reduction of any amount found due and owing the U.S.A. pursuant to the provisions of Section 165(c)(3) of the Internal Revenue Code. The exception and motions were apparently consolidated and heard on October 22,1979. Presumably the proceedings held October 22, 1979 were not transcribed or if transcribed the transcript has been omitted from the record before us. According to the record neither party to the rules and motions introduced any evidence in support of their respective positions, although the U.S.A. did attach to its original motion for disbursement of funds to it, certified copies of “Notices of Levy”, “Certificates of Assessments” and a “Schedule of Unpaid Tax Liability of Lou and Joann Doiron”.

The trial court, without giving any reasons, oral or written, rendered judgment May 15, 1980 dismissing the claim of the United States and sustaining the exception of res judicata. We at this point observe that the trial court dismissed, as well, the claim of the United States for unpaid income taxes due by Luther R. and Joan Bodin Doiron for the period ending December 1, 1967, which was clear error considering our judgment of February 1979, reported at 367 So.2d 1240, which ordered a reinstatement of the Federal tax lien and a referral of such lien to the proceeds of sale.

With regard to the viability of the U.S. A.’s claim against the proceeds on deposit for alleged unpaid taxes for the year 1968 and 1969, we gather from the briefs of the parties that defendant, Joan Bodin, takes the position that the judgment of February 28, 1978 bars such claim. On the other hand, the U.S.A. asserts that the liens for 1968 and 1969 taxes which it now asserts are not the same liens which were cancelled by the judgment of February 28, 1978.

It appears to us that the question as to whether the liens cancelled by the judgment of February 28, 1978 are the same liens as those being now asserted by the United States of America is an issue susceptible of positive proof. However, considering the state of the record on appeal we are unable to resolve this issue.

Appellate courts are given the power to remand an action for proper consideration when the record is so incomplete that the court is unable to pronounce definitely on the issues presented or where the parties have failed, for whatever reason, to produce available evidence material to a proper decision. LSA-C.C.P. Article 2164; Roark v. May, 367 So.2d 397 (La.App. 3rd Cir. 1978), writ ref., 368 So.2d 123 (La.1979); Jones v. Leday, 373 So.2d 787 (La.App. 3rd Cir. 1979); Turpin v. Turpin, 175 So.2d 357 (La.App. 2nd Cir. 1965). Accordingly, we feel that, in the interest of justice, the judgment of the trial court must be reversed and this matter remanded to the trial court for further consideration of the issues presented. Upon remand the parties should be allowed to introduce all legal and competent evidence in support of their respective positions. We at this point reiterate that upon remand the trial court should reconsider the issue as to the U.S.A.’s entitlement to payment for unpaid income taxes for the period ending December 31, 1967 in light of our previous judgment reported at 367 So.2d 1240.

For the reasons assigned, the judgment appealed from is reversed and set aside and it is now ordered that this matter be and the same is hereby remanded to the trial court for further proceedings consistent with law and the views hereinabove expressed. Defendant-Appellee, Joan Bodin, is assessed with the costs of this appeal. The assessment of all other costs shall await final judgment.

REVERSED AND REMANDED. ’

      . Lily Davies Bodin v. Joan A. Bodin, United States of America, Intervenor, 367 So.2d 1240 (La.App. 3rd Cir. 1979).


text:
    EWING AND SALTER, INC. et al., Plaintiffs-Appellees, v. GAFNER AUTOMOTIVE & MACHINE INC. et al., Defendants-Appellants.
    No. 7958.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Writ Refused Feb. 13, 1981.

      Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for plaintiffs-appellees.
    Charles B. Bice, Winnfield, for defendant-appellee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   GUIDRY, Judge.

This is a suit in redhibition. Plaintiffs, Ewing and Salter, Inc. (hereafter Ewing) and Home Insurance Company, Ewing’s insurer, filed suit against the defendants, Gafner Automotive and Machine, Inc. (hereafter Gafner) and Sanders Tractor Company, Inc., demanding the recission of the sale of one pulpwood “pre-hauler” known as an “Iron Mule” as well as the return of the original purchase price, and attorney’s fees. Sanders Tractor Company, Inc. filed a peremptory exception of prescription which was sustained by the trial court resulting in their dismissal from the suit. No appeal has been taken from this judgment and it is now final. The trial court rendered judgment in favor of the plaintiffs and against Gafner. Gafner appeals the judgment of the lower court. Plaintiffs answer defendant’s appeal requesting an increase in the trial court’s award of attorney’s fees.

Written reasons for judgment were not provided by the trial court, however, the lower court obviously concluded that the “Iron Mule” was defective either in design or construction at the time it was delivered to the purchaser, Commercial Credit Equipment Company (hereafter CCEC), and further, that the defect caused the plaintiff’s loss. The sole issue on appeal is whether or not the trial court was “manifestly erroneous” in its factual determination that the machine manufactured by Gafner was defective in design or construction and that the defect existed prior to the sale of the “Iron Mule”. We conclude that the trial court was not clearly wrong in its factual findings, and therefore, affirm the decision of the lower court.

A review of the trial record reveals that on or about September 25, 1973, Sanders Tractor Company, Inc. sold to CCEC a new 4000F Iron Mule manufactured by Gafner for a purchase price of $19,570.00. Plaintiff Ewing entered into a lease agreement with CCEC wherein Ewing assumed all responsibility for the maintenance and repair of the Iron Mule. The lease agreement provided for the assignment of all of CCEC's rights of warranty relative to the sale of the Iron Mule to Ewing. Thus, Ewing as lessee/assignee of the warranty rights prosecutes this action in redhibition.

Following the sale of the Iron Mule to CCEC and the confection of the lease agreement between CCEC and Ewing, the Iron Mule was delivered to Mr. Aubrey Brown, a timber subcontractor, employed by Ewing. On November 22, 1973, some two months following the sale, the Iron Mule caught fire while being operated by Mr. Brown. The fire resulted in the total destruction of the machine.

Voluminous testimony in regard to the issue of redhibitory defects in the Iron Mule was received during trial. Plaintiffs offered the testimony of an expert who stated that the fire resulted from an arcing of the battery cable in the area of the motor mount and that this ignited the residue of diesel fuel, leaves, branches, etc. trapped in the “belly-pan” of the machine. Mr. Thomas Gafner, President of the defendant corporation, stated that he agreed with the plaintiff’s expert as to the area of origin of the fire. Expert testimony established that the most probable reason for the arcing was the manner in which the Iron Mule was constructed whereby the battery cable was allowed to rub against metal parts of the machine in places of close tolerance. This rubbing, which was intensified by the vibration of the machine when in operation, caused the cable’s insulation to be worn off resulting ultimately in an electrical short which ignited the fire. Defendant sought to establish that the reduced tolerance of the cable was caused by plaintiff Ewing’s abuse of the machine, however, it failed to introduce convincing evidence to substantiate its allegations.

As previously stated herein, the determinative issue on appeal concerns the factual findings of the trial court. The jurisprudence in this area is well-settled. The appellate courts of Louisiana have full and complete jurisdiction to review facts. Arceneaux v. Domingue, writ granted 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979). The standard of appellate review of facts was enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973) wherein the Louisiana Supreme Court stated:

“. .. the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record) but also upon .the proper allocation of trial and appellate functions between the respective courts.”

The testimony of the witnesses, as well as the numerous exhibits and photographs introduced at trial, provided the trial judge with a sufficient factual basis for his decision. As the Canter court, supra, recognized, the trial judge is in the best position to evaluate the credibility and demeanor of the witnesses as well as draw from the testimony those inferences which are most reasonable in light of the circumstances. Pierre v. Landry, 341 So.2d 891 (La.1977). It has been previously determined that the trial court need not accept all of the testimony of any witness as being true or false but, rather, can and, in many instances must, believe and accept part or parts of a witness’ testimony and disbelieve and refuse to accept any part or parts thereof. Credibility determinations are particularly within the discretion of the trial court or jury. Payne v. New Orleans Public Service, 374 So.2d 189 (La.App. 4th Cir. 1979).

After a complete review of the trial record and considering the evidence as a whole, we find that the trial court was not manifestly erroneous in its factual findings.

Defendant argues that the plaintiffs failed to meet their burden of proof regarding the existence of a redhibitory defect in the Iron Mule prior to the sale. The jurisprudence concerning actions in redhibition is both well-developed and clear in regard to the plaintiff’s burden of proof in such suits. In Moreno’s Inc. v. Lake Charles Catholic High Schools, 315 So.2d 660 (La.1975), the Louisiana Supreme Court addressed this issue stating:

“The burden of proof may, as in cases generally, be discharged by proving the existence of defects at the time of the sale by direct or circumstantial evidence. Rey v. Cuccia, 298 So2d 840 (La.1974). It is not required that plaintiff negate all other possible causes in order to support his claim. If the proof be by circumstantial evidence it need only exclude other reasonable hypotheses with a fair amount of certainty. Taken as a whole the proof of the fact should be more probable than not. See Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971) and cases cited there.”

In the instant case, evidence was introduced at trial which led the trial judge to reasonably conclude that the location of the battery cable as well as the manner in which it was placed within the machine during manufacture caused the fire. The court reasonably determined that this constituted a defect in the Iron Mule which existed prior to the sale of the machine. We find no error in the conclusion that the plaintiffs did meet their required burden of proof.

The trial court awarded plaintiffs $3,824.59 in attorney’s fees. Plaintiffs-ap-pellees have answered the defendant’s appeal requesting an increase in the trial court’s award of attorney’s fees from the above-stated amount to $7000.00. We find the award of the trial court to be reasonable. However, we will order an increase of $500.00 in such fees to cover services rendered by appellees’ attorneys on appeal.

For the above and foregoing reasons, we amend the judgment of the trial court to increase the award of attorney’s fees from $3,824.59 to $4,324.59. In all other respects the judgment appealed from is affirmed at appellant’s cost.

AMENDED AND AFFIRMED.


text:
    Autrey J. DEROUEN & Ella R. Derouen, Plaintiffs-Appellees, v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, OFFICE OF HIGHWAYS, Defendant-Appellant.
    No. 7960.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      John W. King, Baton Rouge, for defendant-appellant.
    Antoon, Dalrymple & Beck, Robert L. Beck, Jr., Alexandria, for plaintiffs-appel-lees.
    Before GUIDRY, STOKER, and DOU-CET, JJ.
   STOKER, Judge.

This is an action for personal injuries and property damages by husband and wife, Autrey J. Derouen and Ella R. Derouen. The sole defendant is the State of Louisiana, Department of Transportation and Development, hereinafter referred to as “Department”. Plaintiffs were traveling at night on July 20, 1976, at about 10:00 PM on Louisiana Highway 10 when their car struck a hole in the bridge over the Calca-sieu River. The accident resulted in personal injuries to both plaintiffs and property damage to the vehicle. The hole had been cut in the bridge by the Department in the course of driving new bridge piling.

The trial court found for the plaintiffs and assessed damages. The Department has appealed. In its specification of errors the Department complains of (1) the trial court’s finding that the Department owed a duty to adopt a “fool proof” method of covering the hole in the bridge or (2) alternatively, failing to find that the driver of the vehicle (Mrs. Derouen) was negligent in causing the accident and in failing to find that her guest passenger (Mr. Derouen) assumed the risk of traveling on the bridge, and (3) also, alternatively, in awarding property damages in the absence of proper proof and in awarding what appellant claims are excessive personal injury damages.

In answer to the appeal, appellee, Autrey J. Derouen, seeks an increase in the amount of damages awarded to him.

PACTS

The Department was in the process of strengthening the bridge by driving piling. In order to do so the Department’s employees cut holes in the bridge decking through which the pilings were driven. Mrs. Der-ouen’s vehicle encountered one of these holes which measured 14" by 14" square. At night a steel plate was bolted over the hole with a piece of bridge decking placed underneath the hole through which the bolt was run. At the time that Mrs. Derouen drove over the hole the plate covering had come loose and was several feet away from the hole.

LIABILITY

Department’s Liability under LSA-C.C. art. 2317.

The trial court found the Department liable using language which might be interpreted as imposing liability without negligence. We think there is a valid basis for liability under LSA-C.C. art. 2317. The bridge was in the custody of the Department and under its control. Unquestionably it contained a defect. The Department complains that it had no notice that the bridge covering had come loose and therefore had no opportunity to repair. In this regard the Department relies on our case of Gallien v. Commercial Union Ins. Co., 353 So.2d 1127 (La.App. 3rd Cir. 1977), writ denied, 354 So.2d 1379 (La.1978). The Gal-lien requirement of notice and opportunity to repair which saved municipalities and public bodies from the sweeping effect of Loescher v. Parr, 324 So.2d 441 (La.1975) was rejected by the Supreme Court of Louisiana in Jones v. City of Baton Rouge, etc., 388 So.2d 737 (La.1980).

The majority opinion in the Jones case contains the following:

“Where delictual responsibility is based not on negligence but on legal fault, under article 2317, a public body’s knowledge of the existence of the danger is irrelevant. Liability is a consequence of the fact of ownership and custody in itself, not of the breach of a duty.”

Special Defenses.

Plaintiffs pleaded their case as a case of negligence. Defendant defended the case as one of negligence and raised the defense of alleged contributory negligence of Ella R. Derouen. Both parties have briefed the case as one of negligence. Although defendant argues in brief that Autrey J. Der-ouen is barred from recovery by his assumption of risk, the Department failed to set forth assumption of risk as a separate defense. We do not have to consider the effect of the alleged assumption in the context of this case inasmuch as it was not pleaded as an affirmative defense as required by LSA-C.C.P. art. 1005.

We find no merit to the claim of contributory negligence. If we consider the plea of contributory negligence to be the same as alleging the defense of victim fault under Loescher v. Parr, supra, we find on the facts that Mrs. Derouen was not at fault under the circumstances. The trial judge made no mention of contributory negligence in his reasons for judgment and we conclude that he found no facts that would sustain a finding of contributory negligence (assuming this case were considered as a negligence case). Nor do we find victim fault in the context of a case decided (as we do here) under the principle of fault without negligence.

Therefore, we affirm the trial court’s finding of liability.

DAMAGES

Automobile Damages.

The trial court awarded plaintiff Autrey J. Derouen the sum of $1,000.00 as property damages. In its reasons for judgment the trial court stated: “The damage to plaintiff’s vehicle was to the front end, wheels and underneath. This court finds damages in the amount of $1,000.00.”

In its brief the appellant complains of the award of these damages as follows:

“The Court erred in awarding One Thousand ($1,000.00) Dollars for damages to the 1974 Mazda automobile in the absence of proof by the plaintiffs of the value of the automobile or the extent of the damages thereto. Photographs of the vehicle were not introduced into evidence to demonstrate the amount of damage suffered by the vehicle and neither was an estímate from a body shop or automobile body man introduced into evidence. There was no testimony whatsoever from any qualified person as to the extent of the damage to the 1974 Mazda automobile and the costs of repairing this damage. The record is entirely devoid of proof as to damages to the automobile and the trial court arbitrarily set the amount without any basis or foundation therefore and the One Thousand ($1,000.00) Dollars award of damages should be reversed for sufficient (sic) proof to substantiate such a judgment.”

The record reveals that no one, not even Mr. Derouen, ever testified as to the monetary value (or estimate) of the automobile repairs. The figure of $1,000.00 was evidently fixed by the trial court without the benefit of any evidence on this point.

On direct examination Mr. Derouen testified concerning his automobile damages. This testimony appears on page 121 through 123 of the transcript:

“Q Was there any damage done to your automobile, Mr. Derouen?
A Yes, I still have damage on it. The springs had broke loose from underneath. It looked like that frame was bent some. It blew out two tires and the rims and it kind of mashed in the radiator a little bit.
Q What happened to the rims of your automobile, Mr. Derouen?
A Oh, they was all mashed up.
Q I’m going to show you four pictures marked P-1 — I’ll staple them together and mark them P-1 in globo —Well, I guess I’ll mark them P-1, P-2, P-3, and P-4. Would you look at those pictures and tell the Court what those pictures depict? In general, what are those pictures of?
A These are of my car. This is probably where I first hit it but it wasn’t sitting that high. It’s looking pretty good right there. This frame here
Q What are you pointing to right there?
A This is when I first hit the car on the bridge. This rim here — This one here in the back is all bent up.
Q Let the record reflect that you’re pointing to P-3.
A That’s P-3.
Q You’re pointing your finger to the driver’s side of the car of the right—
A The left-hand side.
Q The left front and rear tires and rims?
A Yes, sir. And right over here I ought to have a dent in this bumper that I still have.
Q Was that done in the accident?
A Yes, sir.
Q P-4, right there . . .
A Yeah, P-4.
Q What portion of your car is P-4 shown in?
A I got a dent right over here and this over here is still bent up — bent in right underneath here where I side swiped that bridge — that concrete hump or whatever they call it. I call it a sidewalk in case somebody wants to walk over the bridge, you know, it would be all right. This here is bent up and still bent up.
Q Was that done in the automobile accident?
A Yes, sir.
Q Of July 20th?
A July 20th. Okay. This is P-1.
Q That’s P-2.
A Okay. P-2. When I hit the bridge, all of this underneath was torn up. As you can see, this brake line in [sic] hanging down. All the springs underneath, they was just ripped off when I hit this plate.
Q Was that as a result of the accident?
A Yes, sir. And underneath here, which is not showing . ..
Q Okay. Let’s not talk about anything that’s not shown in the pictures right now.
A Okay. This is P-1, yeah. It might be the front tire.
Q You don’t know which tire that is? Is that one of the tires off of your car?
A That’s one of the tires off of my automobile.
Q Was that damage . ..
MR. KING: Your Honor, at this point I would object to him putting testimony of the photographs and the wheel until after some foundation has been laid (inaudible).
MR. BECK: I think that all is required is that those photographs are true and accurately depict what they purport to depict and that’s sufficient foundation for him to identify them and testify about them.
MR. KING: No identification has ever been made of those photographs.
MR. BECK: Your Honor, it’s (inaudible).
THE COURT: Well, let’s go ahead. I mean, it’s customary. Just find out about the pictures. He wants to know who took the pictures and all of that. Go ahead.
MR. BECK: Does Your Honor want me to lay that foundation?
THE COURT: Well, he’s objected to it so I’ll sustain his objection.
Q Mr. DeRouen, were you present when those pictures were taken?
A No, I wasn’t.”

Counsel did not pursue the matter further and the photographs were never offered in evidence. They are not a part of the record.

On cross examination, as recorded on pages 134 and 135 of the transcript, Mr. Derouen further testified concerning his automobile damages:

“BY MR. KING:
Q Mr. DeRouen, did you get your automobile fixed pursuant to your insurance company paying you to have your car fixed after this accident?
A I don’t follow you.
Q Did you get your automobile repaired after this accident?
A I got it fixed at, I’d say.
Q Are you driving this automobile?
A No, sir, I’m not.
Q Have you sold this automobile?
A No, I got it parked. I have it parked. Since this wreck, it just don’t want to stay together. I’ve done wore two sets of tires out with the little bit of driving that I have and it’s just something out of line and it’s just not drivable, that’s all there is to it.
Q Does the engine run on it?
A No, it’s not running. It’s lost compression for some reason since that wreck.
Q But you did drive it after the accident?
A Yes, I drove it after the accident.”

In our opinion the answers given are confusing but we conclude that Mr. Der-ouen did not have his automobile repaired after the accident. The record contains no evidence that he was paid for his damages by a collision insurance carrier. Evidently, the vehicle was driven for some period of time after the accident. We do not doubt that plaintiff Derouen sustained considerable damage to his vehicle. In our opinion, however, the trial court committed error in attempting to fix the damages without evidence of the monetary amount of the repairs. We are mindful of the liberal rule which holds that if it is evident that a plaintiff has suffered damages the trial court is given broad discretion to fix damages even in the absence of certain evidence of the amount of the damages. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La.1971). Nevertheless, we believe that the rule does not apply as fully in automobile damage cases where the items of damage are peculiarly within the knowledge of specialists. We are also aware of the rule which permits a claimant to testify concerning his own damages, but we believe that the rule has more validity where the loss is peculiarly within the knowledge or experience of the claimant as for example in the case of lost wages. Coleman v. Victor, 326 So.2d 344 (La.1976). In this case before us, as noted above, the plaintiff did not testify as to the value or cost of repairs, but only to what in his opinion had occurred.

Doubtless the pictures plaintiff referred to would graphically show certain damage. We doubt, however, that the extent of damage depicted would establish such assertions as a bent frame, a damaged brake line, or misalignment of wheels, nor would the cost of repair of body damage which might be depicted be indicated by a photograph. Therefore, in the absence of any testimony or corroboration of the cost of repair, we do not deem it appropriate to order a remand of the case for the purpose of admitting the photographs.

As shown above we are faced in this case with a situation in which neither the plaintiffs nor anyone else testified as to the cost of repair of the plaintiffs’ vehicle. It was not in fact repaired so there is no repair estimate. Although Mr. Derouen may be correct in his description of the type of damage the vehicle sustained, he was not shown to have any expertise in determining certain types of damages, such as a bent frame for example, which generally requires a modicum of expertise to determine. The vehicle in question was a 1974 4-door Mazda and the date of the damage was July 20, 1976. Therefore, the vehicle was two years old. We do not regard this as a case in which it was appropriate for the trial court to supply an estimate of damages on its own.

It is well settled that where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess the damages based upon all the facts and circumstances of the case. Jordan v. Travelers Insurance Company, supra. Here the damages could have been determined by qualified repairmen with reasonable certainty. There was no necessity for the trial court to make an estimate of damages susceptible of reasonable determination by experts. With respect to the automobile damages, the plaintiffs simply failed to carry their burden of proof.

Plaintiffs have relied on Burns v. Dominque, 354 So.2d 763 (La.App. 4th Cir. 1978), writ denied, 356 So.2d 1010 (La.1978) as justifying the trial court’s assessment of the damages on the basis of Mr. Derouen’s testimony. The case is distinguishable.

In Burns v. Dominque, supra, the plaintiff was allowed to make an offer of proof of a repair estimate prepared by a firm which ceased doing business prior to trial. The person who prepared the estimate was subpoenaed but could not be served. The trial court also allowed plaintiff to offer testimony to substantiate the content of the estimate and to introduce photographs of the damage. Based on this state of the record the trial court made an award of $1,000.00 for automobile damage. The reviewing court of appeal found no error. While we distinguish this case, we do not thereby wish to imply that we would follow the decision in a case presenting similar facts and circumstances.

The Supreme Court case of Coleman v. Victor, supra, is distinguishable on the grounds clearly indicated by the Supreme Court itself. Plaintiff Coleman’s automobile damages were fixed at $800.00 on the basis of her own self-serving and hearsay testimony. She testified she obtained a repair estimate of $800.00 but did not have the vehicle repaired as she did not have the money. The testimony was not elicited on direct examination. It was brought out by defense counsel on cross examination. On this basis the Supreme Court held the evidence as to the repair estimate to be admissible even though it was self-serving and hearsay.

Inasmuch as plaintiffs in this case before us failed to carry their burden of proof in establishing their automobile damages, we reverse and set aside the trial court’s award of $1,000.00 for property damages.

Personal Injury Damages.

The trial court made awards for pain, suffering and disability to plaintiffs in the amount of $5,000.00 for Mr. Derouen and $6,000.00 for Mrs. Derouen. Defendant contends that these awards are excessive and argues as error the trial court’s award of damages in these amounts. Appellant has not pointed out the basis on which it contends the awards are excessive. Plaintiff-appellee Autrey J. Derouen asks in his answer to the appeal that the award in his favor be increased to $50,000.00.

Mrs. Derouen sustained a cervical strain. Based on the evidence and the testimony of the medical experts we cannot say that the award made by the trial court was not within its considerable discretion. We will not disturb this award. LSA-C.C. art. 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) and Reck v. Stevens, 373 So.2d 498 (La.1979).

Mr. Derouen was operating a service station at the time of the accident which he leased on a month to month basis. On the day following the accident Mr. Derouen's back hurt but he apparently experienced no exceptional pain. He continued to work for two and a half weeks and then took off two months. The service station was given up for reasons that appear to be based on personnel problems and the failure of the station to be economically successful. Mr. Derouen then worked for approximately one year as a painter’s helper at Fort Polk. At the time of trial he had been working for Penrod Drilling Company for about fifteen months as a pit hand which involves physical labor. Mr. Derouen testified he could do “that work all right, but a lot of bending over just bothers my back.”

The only physician Mr. Derouen ever consulted was Dr. T. E. Banks, an orthopedic specialist. He saw Dr. Banks one time only and that was on August 17, 1976. (The accident occurred on July 20,1976.) He has never returned to see Dr. Banks because he stated Dr. Banks led him to believe there was nothing he could do for him. Dr. Banks made positive physical findings and stated Mr. Derouen had evidence of a lum-bosacral strain with sciatic irritation on the left. Other findings suggested possible nerve root irritation, and the question of herniation of a lumbosacral disc could not be ruled out. These latter possibilities were never confirmed. Mr. Derouen’s assigning the accident of July 20,1976, as the cause of all of his complaints and symptoms is complicated by the fact that Mr. Derouen had a previous accident in 1973. Derouen testified that he became asymptomatic from the first accident after about a year, and Dr. Banks was of the opinion that the July 20, 1976, accident could have caused a reinjury of a previous injury. However, Dr. Banks testified that a three-fourths difference in thighs resulting from atrophy would probably have pre-dated the last accident.

Given the history related to him by Mr. Derouen, Dr. Banks thought the 1976 accident was a contributing factor in causing the sciatic irritation and lumbosacral sprain. Dr. Banks prescribed medication and recommended a small back support if Mr. Der-ouen wanted to return to work. The medication consisted of Naprosyn, an anti-inflammatory agent. No medication for pain was prescribed. Dr. Banks stated he advised Mr. Derouen to return if his condition worsened. Mr. Derouen never returned to see Dr. Banks and has seen no other physician. He does use a back support.

From the foregoing review we are of the opinion that Mr. Derouen has proved no loss of earnings or loss of earning capacity. His disability does not prevent him from working in fairly strenuous work. We are unable to say that the trial court abused its great discretion in awarding Mr. Derouen only $5,000.00 for his personal injuries. Certainly the award is not so out of line as to justify appellate modification under the guidelines laid down in Coco v. Winston Industries, Inc., supra, and Reck v. Stevens, supra.

For the foregoing reasons we affirm the trial court’s awards to Mr. and Mrs. Der-ouen for their personal injuries. We affirm the trial court’s judgment in all respects with the exception of the award of $1,000.00 as property damages to plaintiffs’ automobile which award we reverse and set aside.

The costs of this appeal are assessed to defendant-appellant.

AFFIRMED IN PART; REVERSED IN PART.

      . It may be that the trial court and counsel misunderstood one another with reference to the photographs. The well-established rule as to the admissibility of photographs is that it need only be shown that a photograph depicts correctly what it purports to depict. Launey v. Traders and General Insurance Company, 169 So.2d 757 (La.App. 3rd Cir. 1964); Macaluso v. Populis, 339 So.2d 386 (La.App. 1st Cir. 1976). Therefore, counsel was correct in urging this test. When the trial judge sustained defendant’s objection, he appears to have suggested a more restrictive test. In any event, the question of admission of the pictures was not pursued when plaintiff testified he was not present when the pictures were taken, and they were not offered under an offer of proof. The error on the part of the trial judge in appearing to suggest that a proper foundation required testimony by the photographer who took the photographs was, under the circumstances of this case, not sufficiently serious to require a remand.


author: LABORDE, Judge.

text:
    Sharon MOSS et al., Plaintiffs-Appellants, v. MARYLAND CASUALTY COMPANY et al., Defendants-Appellees.
    No. 7962.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Peter C. Piccione, Lafayette, for plaintiffs-appellants.
    Patrick J. Briney, Lafayette, for defendants-appellees.
    Before FORET, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff Sharon Moss sued to recover damages for false imprisonment resulting from her refusal to sign a traffic ticket summons. Made defendants were Officer John Robert, his employer, the City of Lafayette and insurer of the City, Maryland Casualty Company. Plaintiff appeals a decision of the trial court dismissing her suit. The sole issue on appeal is whether or not the trial court erred in its determination that the police officer had the authority to arrest the plaintiff in this situation. We affirm. Under LSA-R.S. 32:391, Officer Robert had the authority to arrest the plaintiff. We find the trial court’s decision to be clearly correct.

On July 16, 1977, Mrs. Moss parked her automobile on the wrong side of Coolidge Avenue, in a marked no parking zone next to Abdalla’s Department Store in Lafayette, Louisiana. Mrs. Moss’s automobile partially blocked one of the four lanes of traffic on Coolidge Avenue.

While on patrol, Officer John Robert, a uniformed member of the Lafayette Police Department, noticed Mrs. Moss’s automobile parked in a hazardous position and stopped to issue a ticket and have the automobile towed away.

Shortly after Officer Robert stopped, an employee of the store came out and offered to move the automobile. Because the employee was not the owner, Officer Robert would not allow him to move the automobile and requested him to ask the owner to come out to receive a ticket for improper parking.

Then Mrs. Moss came out and gave Officer Robert her driver’s license, which had expired. As Officer Robert was writing the tickets in his patrol car, Mrs. Moss reentered the store. At this point there is a conflict in the testimony. Officer Robert testified that after he completed writing the tickets, he entered the store and presented the tickets for her to sign, but that she refused to do so. Mrs. Moss testified that she never saw the tickets and was never asked to sign them.

After Mrs. Moss and Officer Robert had walked outside, Officer Robert informed Mrs. Moss that she would have to be placed under arrest. Upon hearing this, Mrs. Moss tried to return to the store but was prevented from doing so because Officer Robert grabbed her by the arm. She was then placed under arrest and brought to the police station without further resistance. She was held for approximately thirty minutes. She was released after she signed the tickets.

In an action for damages by reason of false arrest, the sole question is whether or not the detention is under the color of legal authority. Wells v. Gaspard, 129 So.2d 245 (La.App. 3rd Cir. 1961); Meyers v. Edwards, 256 So.2d 337 (La.App. 1st Cir. 1971). The plaintiff herein contends that Officer Robert had no authority to arrest her for a traffic violation.

This contention is without merit. Traffic regulations are penal in nature and violations of such are punishable by imprisonment as well as by fine. LSA-R.S. 32:57. LSA-R.S. 32:41 gives local municipal authorities the power to adopt and enforce traffic regulations not in conflict with state law. The authority to arrest a person for violation of a traffic regulation is based upon LSA-R.S. 32:391 which reads in part:

“A. Whenever any person is arrested for a violation of any provision of this Chapter or any regulation of the department or of the secretary of the Department of Public Safety adopted pursuant thereto, except as otherwise provided in this Section, the arresting officer shall take his name, address, the license number of his motor vehicle, and the number of his operator’s license, and shall issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons and notice. The time shall be at least five days after arrest, unless the person arrested demands an earlier hearing. If the person arrested demands an earlier hearing, he shall have a right to an immediate hearing or a hearing within twenty-four hours, at a convenient hour, to be before a magistrate within the parish where the offense was committed. Except as otherwise provided in this Section, the person arrested shall have the option of remaining in custody pending his furnishing bail as fixed by a magistrate or depositing his operator’s license with the arresting officer, as provided in R.S. 32:411.
B. If the person arrested holds a Louisiana operator’s license and gives his written promise to appear at the time and place stated, the officer may release him from custody or take him immediately before a magistrate, but shall not require the person arrested to deposit his operator’s license. Any such person refusing to give the written promise to appear shall be taken immediately by the arrest ing officer before the nearest or most accessible magistrate having jurisdiction ...(Emphasis Supplied)

The trial court concluded that Mrs. Moss refused to sign the ticket, therefore, Officer Robert had the authority and the duty under LSA-R.S. 32:391 to arrest her. This court will not overturn a trial court’s determination unless it is clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the entire record reveals that the decision of the trial court is correct.

For the above and foregoing reasons, the judgment of the trial court dismissing the plaintiffs’ suit is affirmed. All costs are taxed to the plaintiffs-appellants.

AFFIRMED.


author: CUTRER, Judge.

text:
    Cynthia OZANE, Plaintiff-Appellee, v. Robert Anthony OZANE, Sr., Defendant-Appellant.
    No. 7982.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Gene Thibodeaux, Lake Charles, for defendant-appellant.
    Wilford D. Carter, Lake Charles, for plaintiff-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This is a suit to rescind a community property settlement. On January 23, 1979, one day after legal separation, the plaintiff, Cynthia Ozane, and the defendant, Robert Anthony Ozane, Sr., entered into a community property settlement by which defendant received their family home and plaintiff received a 1975 Oldsmobile Cutlass, certain furniture and certain wall decorations. There are no allegations of fraud or coercion. Rescission is sought on the ground of lesion beyond moiety; that is, that the plaintiff received less than one-half of the value of her interest in the immovable. This is a suit to set aside a partition, however, and is governed by the rule of lesion beyond one-fourth as provided in LSA-C.C. art. 1861.

This article provides as follows:

“The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary contracts, on account of such implied error or imposition, except in the two following cases:
1. In partition where there is a difference in the value of the portions to more than the amount of one-fourth to the prejudice of one or [of] the parties;
2. In sales of immovable property, the vendor may be relieved, if the price given is less than one-half of the value of the thing sold; but the sale can not be invalidated for lesion to the injury of the purchaser.”

Under paragraph (1) of this article, the party attacking the partition for lesion must show that the lesion exceeded one-fourth; i. e., that he or she received less than three-fourths of the share to which he was entitled.

The trial court concluded that the value of the property received by defendant in the partition was $10,900.00 and that the value of the movables received by plaintiff was $2,000.00.

The trial court found lesion and set aside the agreement and condemned the defendant to restore to his wife a one-half undivided interest in their family home. The defendant appeals. We reverse.

Defendant’s counsel makes two assignments of error, both of which go to the sufficiency of the evidence presented by plaintiff to establish the values of the property at the time of the contract of partition, January 23, 1979.

The case of Beatty v. Vining, 147 So.2d 37, 45 (La.App. 2nd Cir. 1962) sets forth the elements of proof in an action to rescind a partition:

“In all questions of lesion the value of the property which was the subject of the contract at the time it was entered into is the criterion by which lesion is to be ascertained. LSA-C.C. Art. 1871. The burden of proof is upon the complaining party to prove (1) the value of the property sold in the state in which it was at the time of the contract, according to the usual terms of credit given on sales of that nature, and (2) the difference between such value and the price received. From such difference, a determination must be made as to whether the lesion is sufficient to invalidate the contract. LSA-C.C. Art. 1870.” (Emphasis added.)

In the case of Whittington v. Whittington, 229 So.2d 193, 197 (La.App. 2nd Cir. 1969), writ ref’d, 255 La. 477, 231 So.2d 394 (1970), also a suit to rescind a community property settlement, the court, quoting Crow v. Monsell, 200 So.2d 700 (La.App. 2nd Cir. 1967), writs ref’d, 251 La. 226, 203 So.2d 558 (1967), sets forth the evidentiary standard by which these elements must be proved:

“‘The rule is likewise well established that the burden of proving lesion is on the party asserting it, and that he must establish it by strong and convincing proof. Armwood v. Kennedy, 231 La. 102, 90 So.2d 793 (1956); * * * Speculative values are not to be considered in resolving the question of whether or not lesion exists. * * *’ [200 So.2d 700, 703]” (Emphasis added.)

In the recent case of Blount v. Blount, 385 So.2d 476, 477 (La.App. 1st Cir. 1980), the court stated:

"... To prove lesion the evidence must be clear and exceedingly strong....”

With these principles in mind,' we examine the evidence presented by the plaintiff to establish the values of the various items included in the partition agreement.

To establish the value of the house and lot received by defendant, the plaintiff presented the testimony of John DeWitt, who testified as an expert appraiser. Mr. DeWitt had appraised the property the day before trial, March 11,1980. He stated that he was not aware of the condition of the house in January 1979, but after listening to the testimony of the defendant regarding repairs that had been made upon the house after January 9, 1979, he estimated the condition of the house in 1979 and also estimated its value as of January 1979 to be $19,500.00. Mr. DeWitt candidly admitted that due to the lack of information as to the cost of labor and material used in such improvements or repairs, his final estimate was speculative. In this regard he testified as follows:

“Q. Okay. Would it be fair to say, Mr. DeWitt, that you would have to have more detailed information in order to give a more accurate figure to the Court?
“A. Yes, sir, it would certainly narrow it down to substantiate, you know, these things. The more proof we have, receipts and ...
“Q. So, this figure you gave to the court, $19,500.00, is about as accurate as you can get under the circumstances?
“A. Yes, sir.
“Q. It is not a definite figure?
“A. No. It’s simply my opinion based upon my experience and the facts given here today, but it’s not . .. We do not know, first of all, the amount of time Mr. Ozane spent doing these repairs nor the cost of the materials. We’ve simply estimated in both cases.
“Q. In your opinion, would you say that this was a speculative value?
“A. Based upon the conditions, yes.”

Plaintiff received a 1975 Oldsmobile automobile as a result of the partition. Kenny Fuselier, a loan officer with the First National Bank, was called to testify. He stated that he had authorized a loan on the car to be made to the plaintiff and defendant. He stated that the loan was paid off in November 1979, after the partition agreement. The total amount of $2,028.50 was paid between January and November 1979. He stated that the Blue Book value of the car in November 1979 was $2,700.00. He stated, however, he was not acquainted with the condition of the car. He stated that the condition of the car would have an effect upon the Blue Book value. He could not give a value of the automobile as of January 1979.

In this regard, he testified as follows:

“Q. Mr. Fuselier, you said that the NADA value was $2,700.00.
“A. Yes, sir.
“Q. When?
‘A. In November of ’79.
“Q. Did you know the condition of the car?
“A. No, sir, I didn’t.
“Q. Do you know what state the car was in at the time?
“A. No, sir, I don’t.
“Q. On January 23,1979, do you know the value of the car ... Did you know the value of the car?
“A. In January?
“Q. The 23rd, 1979.
“A. No, sir.
“Q. On January 23rd, 1979, can you testify as to the condition or state of that automobile?
“A. No, sir, I can’t. I don’t have that information.”

In addition to the automobile, plaintiff received several pieces of furniture and wall decorations that were located in the home. She stated that she received two bunk beds, a dinette set and six chairs, a china cabinet and decorations. She stated that these items were valued at $974.00. (The list submitted into evidence shows a total of $994.00. An error of addition exists. The total is actually $974.00.)

Plaintiff was neither tendered nor accepted as an expert in these items. She stated that the values she assigned to the items were the original costs of the items. She stated that some of the furniture was as much as four years old. As to those items, she “estimated” the value of same. She candidly admitted that she did not know the values of any of the items as of January 1979. In this regard, she testified as follows:

“Q. Okay. So, these are not values as of January, 1979. You don’t know the values, is that correct?
“A. Right.”

As we examine the trial judge’s reasons for judgment, we can see that he was clearly troubled by the insufficiency or lack of proof of the value of the property that was distributed in this partition agreement. After expressing some concern about the accuracy of the appraiser’s estimate of the immovable property, he accepted the estimate of $19,500.00. In evaluating the testimony as to the value of property received by plaintiff, the trial judge stated:

"... Well, the evidence is not clear with any exactitude as to what the values were of property that Mrs. Ozane received. ...”

With these reservations, the trial court accepted the values of the furniture and decorations according to plaintiff’s testimony, rounding out the $974.00 figure to $1,000.00. He also assigned a figure of $1,000.00 to the value of the automobile. The trial court, using these figures, concluded that there was sufficient lesion to rescind the agreement.

We must note that there seems to be quite a disparity between the value of the property received by the plaintiff and the value of that received by defendant. The appearance of disparity, however, cannot be the basis for rescission of a partition agreement on the ground of lesion. As we pointed out earlier in this opinion, the plaintiff has the burden of proving lesion and plaintiff must establish lesion by clear and convincing proof. As we examine the evaluations herein, the plaintiff has clearly failed to carry her burden of proving such values by clear and convincing proof.

The appraisal of the immovable is speculative. We have no testimony that reflects a value of the movables at the time of partition in January 1979. We conclude that the trial court erred in its evaluation herein as the burden of proof did not meet the clear and convincing test required by law.

For these reasons, the judgment setting aside the community property settlement entered into between petitioner, Cynthia Ozane, and defendant, Robert Anthony Ozane, Sr., is reversed and the plaintiff’s suit is dismissed. Plaintiff-appellee is cast for all costs, both at the trial court level and on appeal.

REVERSED AND RENDERED.

      . In its reasons for judgment, the trial court apparently applied paragraph (2) in finding lesion. This paragraph applies only to sales of immovables. This is a partition suit and paragraph (1) must be applied. This error of the trial court is of no consequence, however, for the reasons set forth hereinafter.


text:
    Ella RICHARD, et al, Plaintiffs-Appellants, v. Hosey J. GUILLORY et al, Defendants-Appellees.
    No. 7987.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Due, Dodson & deGravelles, John W. de-Gravelles, Baton Rouge, and Marcantel & Marcantel, David E. Marcantel, Jennings, for plaintiffs-appellants.
    Plauche, Smith, Hebert & Nieset, Allen L. Smith, Jr., and Frank M. Walker, Jr., Lake Charles, for defendants-appellees.
    Before FORET, CUTRER and LA-BORDE, JJ.
   FORET, Judge.

This is a tort action. Ella Richard, Theresa Manuel and Alonzo Manuel (plaintiffs) are seeking recovery for property damage and personal injuries sustained in an automobile-truck collision. Hosey Guil-lory, the driver of the truck; Guillory Tank & Truck Service, Inc., owner of the truck; and General Accident Fire & Life Assurance Corporation, Ltd. (General Accident), liability insurer of the truck, were named defendants. The State of Louisiana, through the Department of Health and Human Resources, intervened in this suit.

The trial court rendered and signed judgment in favor of plaintiffs on June 18, 1980. It awarded Alonzo Manuel $250.00 for pain and suffering and $100.00 medical expenses, for a total of $350.00. Theresa Manuel was awarded $1,500.00 for damage to her automobile, $177.00 for lost wages, $114.45 for medical expenses and $400.00 for pain and suffering. Ella Richard, most seriously injured in this accident, was awarded $1,903.70 for medical expenses, $5,467.44 for lost wages, and $6,000.00 for general damages for physical injury, including pain and suffering, for a total of $13,-371.14.

The plaintiffs (appellants) filed a motion for a devolutive appeal which was granted on July 21, 1980. The appellants present four issues for our determination:

(1) Whether the trial court erred as a matter of law in failing to award any general damages for Ella Richard’s psychiatric or psychological injuries suffered as a result of the accident;
(2) Whether the trial court was manifestly erroneous in failing to find that the psychiatric or psychological injuries suffered by Ella Richard were disabling and further erred in failing to award any damages for said disability;
(3) Whether the trial court was manifestly erroneous in awarding a grossly inadequate sum for general damages for the physical injuries suffered by Ella Richard, and
(4) Whether the trial court was manifestly erroneous in awarding a grossly inadequate sum for general damages for injuries suffered by Alonzo and Theresa Manuel.

FACTS

This action arises out of a collision between a 1973 Ford Torino, owned by Theresa Manuel and being driven by Alonzo Manuel, and a fully-loaded tank truck (eighteen wheeler) owned by Guillory Tank & Truck Service, Inc. and being driven by its employee, Hosey Guillory.

The accident occurred at the intersection of West Division Street and La. 26 in the City of Jennings, Louisiana, at approximately 9:00 P.M. on the evening of April 27, 1978. This intersection is controlled by an electric semaphore light.

Theresa Manuel and her mother, Ella Richard, were passengers in the Torino. They were proceeding in a westerly direction on West Division Street as they approached the above intersection. Hosey Guillory was driving his truck south on La. 26. There was another truck owned by Guillory Tank & Truck Service, Inc. and being driven by Michael Abshire north on La. 26. Abshire had brought his truck to a stop at the intersection in deference to a red light. He testified that the truck being driven by Hosey Guillory failed to stop for the red light and struck the right side of the Torino, injuring its occupants.

Plaintiffs filed suit on September 15, 1978, alleging that Hosey Guillory’s negligence in running the red light was the sole and proximate cause of this accident.

The defendants-appellees answered, alleging that if the trial court found Hosey Guillory negligent, then it should hold that Alonzo Manuel was guilty of contributory negligence in causing the accident.

This action was tried on February 27, 1980, with the trial court finding the negligence of Hosey Guillory to be the sole and proximate cause of the accident.

TRIAL COURT’S FAILURE TO AWARD DAMAGES FOR MENTAL INJURY TO ELLA RICHARD

The appellants, in their first assignment of error, raise the issue of whether the trial judge erred in failing to award any general damages for the alleged psychiatric or psychological injuries suffered by Ella Richard as a result of the accident.

The record reveals that Ella Richard is a fifty-seven-year-old woman who had never been treated for nervous or emotional problems prior to this accident. She had no formal education and had worked for most of her life. She had been employed for two years immediately preceding the accident at the Jennings Guest House where she worked as a cook’s helper.

Dr. Gilíes Morin, a Lake Charles physician specializing in psychiatry, testified on behalf of defendants-appellees by deposition. He examined Ella Richard on February 15, 1980, and testified that Mrs. Richard’s chief complaints were nervousness, depression, insomnia, pain in the right side of the chest and right leg. Dr. Morin found Ella Richard to be totally illiterate and her intelligence borderline dull. He testified that she was extremely passive during the examination. He found her to be depressed in terms of her attitude, noting that her energy level seemed to be at a low ebb, which he testified was consistent with a finding of depression. Dr. Morin was of the opinion that Ella Richard had suffered a depressive reaction of neurotic proportion.

Dr. William P. Cloyd, Jr., a Lafayette physician practicing psychiatry, testified on behalf of appellants by deposition. He examined Ella Richard on August 20, 1979, and she related complaints of nervousness, tension, irritability, and general depression to him. His observations made during the examination were an emotional appearance which was somber, a mood of depression associated with a considerable level of tension, and extreme passiveness. She cried a great deal throughout the examination. Dr. Cloyd testified that this, along with her thought content, indicated a person who was attempting to deny or repress her emotions to a great degree in order to maintain her feelings intact. His opinion was that this plaintiff was suffering from a major depressive illness, and that the accident was the precipitating factor in the development of this illness.

Ardine Yancy, a daughter of Ella Richard, testified as to her observations regarding the change in the mental health of her mother after the accident. Ardine Yancy had taken her mother into her home upon her release from the hospital. She stated that for the, first month and a-half her mother could not get out of bed at all, and after that, she needed assistance to do so. Ardine testified that her mother became very depressed and felt that she was just a burden on everyone. She would also become very restless and nervous at times. Ardine testified that her mother was receiving mental therapy from the mental health clinic in Jennings.

Theresa Manuel, the daughter who was injured along with Ella Richard in the accident, also testified as to the changes in her mother’s mental health after the accident. Ella Richard had been living with Theresa at the time of the accident. Theresa testified that before the accident, her mother would work five days a week and that her usual working hours were from 5:00 A.M. to 1:00 P.M. Theresa further testified that when her mother was at home, she was very active and was always cleaning up, cooking, or washing clothes. Theresa stated that since the accident, her mother did nothing but sit around the house or walk outside.

The appellants argue that the trial court failed to award Ella Richard any general damages for mental injury resulting from the accident. They cite language in the trial court’s written opinion that Ella Richard is entitled to the sum of $6,000.00, “for general damages for physical injury, including pain and suffering” in support of their argument.

The defendants-appellees contend that the trial court awarded no general damages for mental injury to Ella Richard because it found that she had failed to prove such. However, defendants-appellees produced no evidence to counter the great weight of plaintiffs’ evidence to the contrary. Defendants-appellees’ own medical expert testified that his opinion was that this plaintiff had suffered physical injury in an accident and had subsequently slipped into a depression.

We find that the evidence shows that Ella Richard suffered a depression neurosis as a result of this accident.

There is no doubt that a depression neurosis or emotional trauma, caused by an accident, is a compensable item of damage. Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Lalonde v. Weaver, 360 So.2d 542 (La.App 4 Cir. 1978); Burt v. Aetna Life & Casualty Insurance Company, 341 So.2d 589 (La.App. 2 Cir. 1977); Schexnayder v. Carpenter, 338 So.2d 344 (La.App. 3 Cir. 1976), amended and affirmed, 346 So.2d 196 (La.1977); Cosey v. Allen, 316 So.2d 513 (La.App. 1 Cir. 1975).

We hold that the failure of the trial court to award general damages to Ella Richard for the depression neurosis caused by the accident constitutes error.

There is no necessity for a remand to determine the amount to which Ella Richard is entitled as the record before us provides an adequate basis for this Court to make the award. We award Ella Richard the sum of $10,000.00 in general damages for mental injury.

ELLA RICHARD’S ALLEGED PERMANENT DISABILITY

The appellants’ second assignment of error raises the issue of whether they have proven that Ella Richard has been permanently disabled by the mental injuries she suffered as a result of the accident.

The appellants sought to recover $52,-742.00 on behalf of Ella Richard for loss of future earnings.

A plaintiff who seeks to recover for loss of future earnings has the burden of proving the extent of his injuries resulting from the accident. He must also prove whether such injuries have incapacitated him from, in the future, doing work of a reasonable character, that is, work for which he was fitted by training and experience, of the same or similar kind in which he was engaged at the time of the accident. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968).

Appellants argue that they have proven, by a preponderance of the evidence, that Ella Richard’s mental injuries suffered in the accident have permanently disabled her to the point where she can no longer engage in gainful employment.

The only medical evidence adduced by appellants in support of their argument is that of Dr. William Cloyd. Dr. Cloyd’s prognosis for her recovery to a degree where she would be employable was extremely poor. He felt that the symptoms displayed by her such as depression, irritability, nervousness and forgetfulness, combined with her age, limited intellectual and emotional assets, would render her incapable of taking on the responsibilities related to a job.

However, under cross-examination, he admitted the fact that he had examined her once and then for only a short period of time, and that his conclusion was based solely on what had been told to him by Ella Richard and her daughter. He further testified that it might actually be beneficial for Ella Richard to return to work, if she felt able to do so.

Dr. Gilíes Morin, the other psychiatric specialist, testified that he found no evidence of a serious mental injury such as psychosis. He stated that Ella Richard tended to minimize her problems before the accident and maximize those after the accident. He was of the opinion that Ella Richard was in no way disabled by her emotional problems, and felt that a return to work would be beneficial for her.

We note that Dr. Ethel Smith, a general practitioner in Lafayette; Dr. Harlie Bear-den, a specialist in family practice in Jennings; and Dr. Edward Phillips, an orthopedic surgeon in Lake Charles, all testified on behalf of appellants. They concurred in the finding that Ella Richard was suffering from no physical disability which would prevent her from seeking gainful employment at the time of trial.

The trial court found that Ella Richard had been disabled for a period of one year following the accident. We conclude that such a finding is adequately supported by the record.

We hold that appellants have failed to prove any permanent decrease in Ella Richard’s earning capacity as a result of the mental injury she suffered in the accident.

The trial court awarded Ella Richard $5,467.44 for loss of wages during the one-year period of disability. Appellants argue that Ella Richard should have been awarded $10,657.00 for loss of wages from the date of the accident to the date of the trial. We find no merit in appellants’ contention because of our agreement with the trial court on the duration of the alleged disability. Similarly, we also find no merit to appellants’ claim for future medical expenses.

QUANTUM

Appellants raise the following issues in their third and fourth assignments of error:

(1) Whether the trial court’s award of $6,000.00 to Ella Richard for general damages in connection with the physical injuries which she suffered in the accident is grossly inadequate.
(2) Whether the trial court’s awards of $400.00 to Theresa Manuel and $250.00 to Alonzo Manuel for general ' damages for injuries suffered in the accident are grossly inadequate.

Whenever the issue of quantum is considered on appeal, the court must make an initial inquiry as to whether the trial court’s award for the particular injury, and its effect on this particular injured person, is a clear abuse of the trier of fact’s “much discretion”, LSA-C.C. Article 1934(3), in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may, on appellate review, be considered either excessive or insufficient. Reck v. Stevens, 373 So.2d 498 (La.1979); Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, supra; Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967).

We have reviewed the record with respect to the physical injuries suffered by Ella Richard in the accident. These injuries included six fractured ribs, a partial pneu-mothorax, and bruises of the right chest, hip and leg. We have no doubt that a person who suffers six fractured ribs will experience severe pain for some time. The medical testimony in the record indicates that Ella Richard experienced pain for a period of twelve months on a diminishing basis. We feel that the award of the trial court of $6,000.00 to this plaintiff for physical injury, including pain and suffering, is somewhat low. However, our review of the record discloses no clear abuse of the trier of fact’s much discretion.

We have further reviewed the record with regard to the injuries suffered by Theresa Manuel and Alonzo Manuel in the accident. Theresa Manuel suffered a laceration to her forehead and contusion and swelling of her left leg. She was awarded the sum of $400.00 in general damages. Alonzo Manuel suffered a strain to the muscles in his left shoulder area and was awarded the amount of $250.00 in general damages. We can make no finding of a clear abuse of the trier of fact’s much discretion in its award of damages to these two appellants.

For the above and foregoing reasons, the judgment of the trial court with regard to Ella Richard is amended and affirmed, awarding her the sum of $10,000.00 for mental injury, etc., $1,903.70 for medical expenses, $5,467.44 for lost wages, and $6,000.00 for general damages for physical injury, including pain and suffering, for a total of $23,371.14. The awards of the trial court to the other appellants are affirmed.

Costs of this appeal are assessed against the defendants-appellees.

AMENDED AND AFFIRMED.

      . On motion of plaintiffs, Hosey Guillory was dismissed from the suit at the beginning of the trial.

      .The State of Louisiana, through the Department of Health and Human Resources, filed a petition in intervention on January 30, 1979. It argued that it had paid or was obligated to pay certain assistance payments and/or medical expenses on behalf of plaintiff, Ella Richard, as a direct result of the injuries received by her in the accident, totaling $180.00. It sought to recover this amount.

      . In the trial court’s judgment, no mention is made of the claim by the State of Louisiana.

      . The judgment of the trial court awards this plaintiff $2,191.45 instead of $2,221.45, which is the total of the amount of the award outlined in the trial court’s written reasons for judgment. There is no explanation for this discrepancy, and the plaintiff has not alleged any er-

      . Pneumothorax is a condition where air is allowed to enter into the thoracic cavity because of some type of injury.