author: COLE, Judge.

text:
    COHN REALTY COMPANY, INC. v. ABLE MOVING AND STORAGE COMPANY, INC., et al.
    No. 14070.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Moise W. Dennery, New Orleans, David Don Moss, Baton Rouge, for plaintiff-appel-lee Cohn Realty Co. Inc., Isidore Cohn, Jr., Rosenthal and Associates, Inc., and Robert Rosenthal.
    Phil Breaux, St. Gabriel, Michael A. Patterson, Baton Rouge, for defendants-appellants Able Moving and Storage Co., Inc., Gregory Constant, Clayton Constant and Rodney Constant.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This dispute between landlord (appellee Cohn Realty Company, Inc.) and tenant (appellant Able Moving and Storage Company, Inc.) raises two issues. The first is whether or not the trial court erred in failing to award Able damages for Cohn’s breach of contract. The second is whether or not the court erred in awarding judgment based on the lease agreement in light of the fact the trial judge found there was no “meeting of the minds” as to the lease.

Cohn is the owner of a large two-story warehouse located on Europe Street in Baton Rouge. The warehouse is from 75 to 100 years old. Able is a moving and storage business owned principally by three brothers: Gregory Constant, Clayton Constant and Rodney Constant. On September 28, 1977, Cohn’s representative, Isidore Cohn, and the Constant brothers entered into a lease agreement which provided for a base term of five years beginning October 1, 1977. For the first fifteen months Able was to lease the first floor of the building for $1,425.00 per month and a nearby vacant lot for $100.00 per month. Beginning January 1, 1979, or at an earlier date upon the election of Able, the second floor of the building fell under the lease at an additional rental of $1,140.00 per month.

The lease agreement specified fourteen improvements to be made by Cohn at the earliest possible date, such as repairs to the dock, steps, awnings, gutters, plumbing, floors, electrical system and other such items. For the first year of the lease Able paid the full amount due but made several oral and written complaints to Cohn about the various things needing repair. Beginning in October of 1978 Able began to pay only $525.00 per month, withholding the balance in an “escrow account” to be used to make the repairs Cohn had allegedly failed to make. Meanwhile, in June of 1978 Able had informed Cohn it desired partial occupancy of the second floor and the rental for this space was set at $380.00 per month for June 1978 through December 1978. Thereafter the rent for the second floor was to be $1,140.00 per month as originally set. Because of the dispute over the fourteen improvements Able withheld all rentals due for the second floor. As of May 1980, Able had withheld a total of $45,790.00 in rental payments.

Cohn filed suit against Able in November of 1978 seeking past due rentals and accelerated rentals for the remaining term of the lease. Able answered in the form of a general denial and asserted a reconventional demand against Cohn seeking damages for necessary repairs, compensation for personal injury and property damage caused by the condition of the building, and damages for loss of past, present and future revenues caused by Cohn’s failure to make the repairs. Able further alleged that it was entitled to a dissolution of the lease but because of the nature of its business an attempted relocation would cause irreparable harm.

After a lengthy trial on the merits judgment was rendered in favor of Cohn and against Able in the sum of $45,790.00. The lease was ordered dissolved as of the date the judgment became final (i. e., definitive). Able was ordered to vacate the second floor on the last date of the month in which the judgment became final and to vacate the first floor within six months of that date. Able was to pay the monthly rents as they became due for the remainder of its occupancy.

In his written reasons for judgment the trial judge noted it is well settled a tenant cannot simply refuse to pay the rent, even though the landlord may have breached his obligation to repair the leased premises, citing Cameron v. Krantz, 299 So.2d 919 (La.App. 3d Cir. 1974). The tenant does have the right to make the repairs himself and deduct these sums from the rent, as provided by La.Civ.Code art. 2694. The court recognized this right by rendering judgment on the reconventional demand in favor of Able and against Cohn for $10,372.34. This sum represents a credit given to Able for various repair expenses proven at trial.

Appellant Able argues the court erred in failing to award it damages sustained as a result of Cohn’s breach of the lease. The general measure of damages for such a breach is the amount of loss sustained and the profit of which the tenant has been deprived (within the contemplation of the parties at the time of the contract) due to the lessor’s breach. Reed v. Classified Parking System, 324 So.2d 484 (La.App. 2d Cir. 1975); La.Civ. Code art. 1934.

Able specifically contends it should have been granted damages for the increased labor expenses caused by the unsafe conditions of the floor and dock. The lease specifically provided the west dock would be repaired to accommodate a forklift and the floors would be repaired so that their condition was “secure and safe.” Various witnesses testified the floor was uneven and patched with thin plywood. The dock was allegedly unsteady and of insufficient strength and width to support adequately a forklift. The trial court concluded this was so. Able contends the inadequate floor and dock prevented it from using a forklift and caused it to use an eight-step process, thus increasing labor expenses.

Glenn Peck, Abie’s corporate accountant and expert witness, testified Abie’s warehouse labor costs for the year 1979 equalled $31,866.00 and in his opinion the costs would have been the same for the year 1978. Bruce NcNeal, accepted by the court as an expert in the moving industry, testified the condition of the dock and floors required Able to use the eight-step (soft palletization) moving process rather than the four-step (hard palletization) procedure. McNeal stated the longer process required 37% more labor than the shorter method. Based on these figures, appellants, argue the floor and dock conditions caused them to spend an additional $11,790.42 a year for labor, or a total of $23,580.84 for the two year period.

Although the trial court found the dock and ramp unable to support a forklift, it denied recovery for the increased labor allegedly caused by this condition on the basis that the amount of the damages was highly speculative. We disagree. After carefully examining the record we are convinced Able has proven by a preponderance of the evidence the inability to use the forklift cost them $23,580.84 in additional labor.

Rodney Constant testified Able had not been able to use the forklift (except in “life and death” situations) from the beginning of the lease. His brothers’ testimony substantiated this fact. We find the expert testimony of Mr. Peck and Mr. McNeal established adequately the amount of damage Able suffered because of the dock condition. Therefore, we amend that portion of the judgment granting damages to plaintiffs in reconvention (Able) to allow an additional sum of $23,580.84 as damages for the increased labor expense caused by the condition of the dock and ramp.

The second item for which appellant claims it should be allowed damages is the loss of revenues due to the lack of having its own name painted on the building. The lease specifically provided the lessor would “Remove the marking from the side of the building that contains the name of a prior tenant.” Testimony showed the old tenant’s name remained on the building until it was changed by Able in February of 1979. In October of 1978 Cohn sent workers who attempted to paint over the name of the old tenant. Able did not allow them to complete their job because Able had understood the old name would actually be removed from the building by sandblasting.

The trial court granted Able $2,650.00 for expenses incurred in removing the old name. Abie’s marketing expert, Dr. Steven DeVere, used a financial report prepared by Glenn Peck, performed a “trend analysis” to establish a pattern of revenue, and conducted a “market mix audit” to determine what factors might have caused the change in revenue shown by the report. He concluded $181,487.00 in additional revenue was obtained after Able placed its own name on the building in February of 1979. He stated that had Abie’s name been on the building for the thirteen months preceding the change, Able would have earned $172,-418.00 more than it did during that period. (This figure was based on the $181,487.00 mentioned above, less 18% to account for growth rate.) Again, we must agree with the trial court that this item of damages is highly speculative.

Our conclusion is influenced by several factors. One is that there are obviously many variables affecting the revenue .generated by a business. During this time period Able changed its affiliation from Red Ball to Bekins. Further, the Constant brothers changed their emphasis from soliciting business for the “Able side” of the business to the “carrier side” of the business. These two factors alone could undoubtedly cause great fluctuations in the revenue generated.

Another factor is that Abie’s business is not a highly visible retail business in which a correct sign is reasonably necessary for its success. . Certainly if the Constants were running a grocery store or a restaurant they would have suffered severely by not having the proper identification on their building. However, the nature of the moving and storage industry is quite different from the retail business. Common sense and human experience dictate that very few people select their moving company by seeing its sign on a warehouse, nor would many people simply walk into a warehouse and decide to store their furniture there. Dr. DeVere admitted that the usual procedure is that a potential customer consults the phone book when seeking a moving or storage company, although he insisted many people make the contact after seeing the moving company’s sign. The warehouse is located on a rather obscure street in a part of town not well traveled by the general public. Therefore the visibility of a sign is not as imperative as it would be if the warehouse was located on a major thoroughfare. While we would not contend the lack of a proper sign could not have affected Abie’s business in some manner, there are too many other factors involved for us to accept Dr. DeVere’s report as being probative or persuasive. We therefore affirm the trial court’s refusal to award damages for this item.

Appellant argues alternatively that since the trial court found there was no “meeting of the minds” as to the contract, the court erred in awarding judgment based on the lease agreement. In other words, appellant urges since there was no meeting of the minds there was no valid contract. If there was no valid contract the court should not have ordered appellant to pay the past-due rent, because to do so was enforcing the terms of the (invalid) contract. Appellant contends the contract of lease should be ignored and the case remanded to the trial court to determine the “fair value” of the space occupied by Able, as well as the “fair value” of the repairs provided by Able.

We find no merit to this argument because the only error made was as to the qualities of the object of the contract. La. Civ. Code art. 1842 reads as follows:

“Error as to the thing, which is the subject of the contract, does not invalidate it, unless it bears on the substance or some substantial quality of the thing.”

An error as to substance occurs when the object is of a totally different nature from that which is intended. La.Civ. Code art. 1843. We cannot say that the object of this contract of lease (the warehouse) was of a totally different nature from that which is intended. Nor can we say the error related to the substantial quality of the object. Art. 1844 explains that the substantial quality of the object is that which gives it its greatest value, such as, “A contract relative to a vase, supposed to be gold, is void, if it be only plated with that metal.” If the error is as to the “other qualities” of the object (other than the substantial quality) the contract is invalidated only when those qualities are the principal cause of making the contract. La.Civ. Code art. 1845. The principal cause is defined by art. 1825 as the motive, and means “that consideration without which the contract would not have been made.”

The facts reflected in the record indicate the principal cause of this contract was for Able to secure a large reasonably priced warehouse capable of receiving and storing household goods. There was no mistake as to the principal cause; the building was in fact capable of supporting a successful storage business and did so for several years. The only error or misunderstanding was as to the extent of the various repairs to be made and as to the ultimate condition of the building after the repairs were completed. It must have been apparent to the Constants that a 75 to 100 year old building would not be in “top-notch” shape even after the proposed repairs. Therefore it is not logical that their principal cause or motivation in entering the contract was to lease a building in perfect condition. These errors as to the condition of the building do not relate to the principal cause of the contract and therefore do not invalidate the lease. The trial court acted correctly in rendering judgment based on the lease.

For the foregoing reasons, the judgment of the trial court is amended to increase the amount awarded to Able by $23,580.84, plus legal interest from date of judicial demand until paid, for additional labor costs caused by the poor condition of the dock and ramp, equalling a total award of $33,953.27. In all other respects the judgment of the trial court is affirmed. The costs of the proceedings should be shared equally by appellant Able and appellee Cohn.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Also named as defendants were Isidore Cohn, Jr., Rosenthal and Associates and Robert Ro-senthal. The trial court found no liability on the part of these three defendants and dismissed the reconventional demand as to them.

      . The lease provided that if the tenant failed to pay the rent (or violated any other condition of the lease) the lessor had the option to demand the entire rent for the whole term or to immediately cancel the lease.

      .The trial court found these expenses were proven: $4,969.79 for repair to electrical wiring, $2,650.00 for the removal of the previous tenant’s name from the building and $500.00 needed for repairs to windows. A $2,252.64 credit was given for money Cohn received as a result of an insurance claim made for a damaged awning. The trial court concluded that since the awning was specifically listed as an item to be repaired, the tenant was entitled to this insurance money.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Ralph BIZE et al., Plaintiffs-Appellees, v. Syble BOYER et al., Defendants-Appellants.
    No. 8048.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Rehearing Denied May 28, 1981.

      Provosty, Sadler & deLaunay by Michael T. Pulaski, Alexandria, for defendants-appellants.
    McLure & McLure, John G. McLure, Alexandria, for defendants-appellees-appel-lants.
    Chris J. Roy, Alexandria, for plaintiffs-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This case and its companion, Boyer v. Walker-Roemer Dairies, Inc., La.App., 402 So.2d 118, in which a separate opinion is being rendered this day, arise from an in-tersectional automobile collision.

In the foggy, pre-dawn darkness of October 21, 1976, Syble Boyer, then either 66 or 71, was driving her husband Emile’s 1969 Chevrolet pickup in a northerly direction along Louisiana Highway 1 in Avoyelles Parish. With her in the truck’s front seat was her daughter, Shirley Bize, and Shirley’s major son, Rodney Bize. Mrs. Boyer was en route to the Joan of Arc Canning Factory to drop off the Bizes, who were seasonal employees at the factory.

As Mrs. Boyer approached Highway l’s intersection with Louisiana Highway 114, she slowed down and activated her left turn signal because she intended to turn onto Highway 114. Mrs. Boyer and the Bizes peered through the heavy fog attempting to determine if there was any oncoming traffic. Since they saw none, Mrs. Boyer began turning left onto Highway 114. However, before the turn was completed, the Chevrolet was struck by a 2Vz ton Ford milk truck which was traveling in a southerly direction on Highway 1. The milk truck was being driven by Chester A. Mabry, who was at the time of the accident acting within the course and scope of his employment with Walker-Roemer Dairies, Inc., the owner of the truck. The Bizes and Mrs. Boyer were injured; the pickup truck was a total loss.

Before a year elapsed, Shirley Bize, her husband Ralph, and their son Rodney sued Syble and Emile Boyer; USAA Casualty Insurance Co., the insurer of the Boyer truck; Chester A. Mabry; and Walker-Roemer Dairies, Inc., for all damages resulting from the accident.

In the separate companion suit, Syble and Emile Boyer sued Chester A. Mabry and Walker-Roemer Dairies, Inc. for property damage and personal injuries which they felt were solely attributable to the negligence of Mabry in operating the milk truck.

The two cases were consolidated for trial, which was held on March 26, 1980. After hearing the evidence, the trial court issued an opinion in this case wherein he concluded that Mr. Mabry was negligently driving “at an excessive rate of speed and in disregard for the peculiar bad weather conditions existing on the morning of the accident.” Interestingly, the judge issued a separate opinion in the companion case, No. 8049, wherein he stated that Mr. Mabry was driving “at an excessive rate of speed without headlights and in disregard for the peculiarly bad weather conditions existing the morning of the accident.” (Emphasis added). No reason was given for the discrepancy in the opinions.

The trial judge also found that Syble Boyer was negligent in making an improper left hand turn in the path of oncoming traffic having the right-of-way, and in failing to see what should have been seen. The Boyers were denied recovery in the companion suit on the basis of Mrs. Boyer’s contributory negligence.

In accordance with his findings of negligence, the judge rendered judgment against all defendants — Emile and Syble Boyer, USAA, Mabry, and Walker-Roemer Dairies — in favor of Ralph Bize in the amount of $2,682.00 (for past and future medical expenses); in favor of Shirley Bize in the amount of $30,000.00 ($20,000.00 for past and future lost wages, $10,000.00 for past and future suffering and disability); and in favor of Rodney Bize in the amount of $500.00 (for pain and suffering). All defendants were bound solidarily, except for USAA Casualty Insurance Co., which was liable only to the extent of its policy limits of $5,000.00 per person, plus interest and costs. Expert witness fees and the court reporter’s deposition fee were taxed as costs. All the defendants have appealed.

Chester Mabry and Walker-Roemer Dairies argue that Mabry was not negligent because he was traveling within the speed limit within his lane of travel at the time of the accident, and because he took proper albeit unsuccessful evasive measures when he noticed the Boyer vehicle in his path. These defendants also seek a reduction of the award to Shirley Bize and Ralph Bize on the grounds that Mrs. Bize’s complaints were not attributable to the accident, her wages were speculative, and the medical expenses were incurred for treatment of injuries or complaints unrelated to the accident.

The Boyers and USAA contend that the trial court erred in finding Syble Boyer negligent in the instant ease and contribu-torily negligent in the companion case which follows. They believe the judgment in the instant case should be affirmed in favor of the plaintiffs against Walker-Roemer Dairies and Chester Mabry, but reversed insofar as it allows recovery by the plaintiffs against the Boyers and USAA. (Unlike the other defendants, these defendants do not argue that the award to the plaintiffs should be reduced.) They further ask that the judgment in the companion case be reversed to allow recovery by Mr. and Mrs. Boyer against Chester Mabry and Walker-Roemer Dairies.

NEGLIGENCE

The only evidence bearing upon the issue of negligence is the testimony of the four individuals involved in the accident. All four testified that the accident occurred in pre-dawn darkness while a heavy fog hung over the highway, reducing visibility.

Chester Mabry testified that he was traveling the speed limit, which was 55 miles per hour. He knew that the intersection of Highway 1 and Highway 114 was heavily traveled at this time of the day, about 6 A.M., because he traveled this route every morning. He stated that the Boyer truck appeared to be stalled across his lane of travel when he first noticed it in the roadway. He did not notice the pickup truck’s lights because they were shining down Highway 114 rather than Highway 1. Ma-bry attempted to avoid the accident by applying his brakes and swerving to his right, but his rapid speed, coupled with the fact that his milk truck was fully loaded, thwarted his avoidance attempt. He further testified that his lights were on at the time of the accident because he remembered turning them off after the accident.

The Bizes and Mrs. Boyer testified that they never saw the milk truck’s lights before the accident. They felt they would have been able to see his lights — if in fact he had them on — in plenty of time to know whether they could turn safely or if they should stop to wait for him to pass. Their feeling was based on the fact that prior to the accident, they had passed other cars which had their lights on and the lights of those cars were plainly visible through the fog before the cars could be seen.

The trial judge found that Mabry disregarded the peculiarly bad weather conditions by driving at an excessive rate of speed. Although his speed may have been within the limit, we cannot say that the trial judge erred in finding that his speed was excessive, particularly since it was very foggy, visibility was diminished, and Mabry was aware that the intersection he was approaching was heavily traveled at that early time of day.

The trial judge also found that Mabry was driving without his headlights on. Despite the discrepancy in- his written opinions, we believe that the judge inadvertently omitted this finding from the opinion rendered in this case. Since the evidence on this point was conflicting, we cannot conclude that the trial court committed manifest error in finding that the testimony of Mrs. Boyer and the Bizes was more credible. Thus, the evidence supports the trial court’s conclusion that Chester Mabry was negligent.

However, by accepting the court’s findings that Mabry’s speed was excessive and that he did not have his lights on, we are constrained to conclude that the trial judge was clearly wrong in finding that Mrs. Boyer was also negligent. Although left-turning motorists are held to a high degree of care, Vallot v. Camco, 396 So.2d 980 (La.App. 3rd Cir. 1981); Bond v. Jack, 387 So.2d 613 (La.App. 3rd Cir. 1980), it is difficult to imagine how Mrs. Boyer could possibly have exercised more care than she did in attempting to negotiate her turn in safety. Finding Mrs. Boyer negligent, after finding that the milk truck was traveling at an excessive speed and without headlights, is tantamount to holding that a left-turning motorist is negligent per se when he or she is involved in an accident with an oncoming car in the approaching motorist’s lane of travel during the turn. While the circumstances may more often than not result in a finding that the left-turning motorist is negligent, the left-turning motorist may successfully rebut any such inferences of negligence. We believe Mrs. Boyer has done just that in this case.

We are impressed by the remarkable factual similarities between this case and Lapeyrouse v. LeCompte, 343 So.2d 1117 (La.App. 1st Cir. 1977), writ denied 345 So.2d 1193 (La.1977), wherein the First Circuit reversed the trial court’s finding of negligence against a left-turning motorist, Mrs. LeCompte. There, the turn was attempted from a two lane highway onto a private driveway at 5:30 A.M. on a dark and very foggy morning. In absolving Mrs. Le-Compte from negligence the Court had this to say:

“From the record, we conclude that, while it was indeed a foggy morning, reasonable visibility existed at the scene when this accident occurred. We seriously question Chauvin’s testimony that visibility was 200 feet. The testimony of Mrs. LeCompte and Mrs. Lapeyrouse regarding visibility appears more plausible, and from which we determine that there was visibility of approximately 75 to 100 feet. Under such circumstances, we see no reason why Mrs. LeCompte should stop her vehicle and remain stationary upon the highway. We also find that, from the physical facts shown, Chauvin was traveling at a grossly excessive speed under the circumstances.
On these findings, we absolve Mrs. Le-Compte from negligence. She was in her proper lane of travel. Her headlights and left turn blinker signal were in operation. She stopped and looked for the lights of oncoming vehicles and also requested her guest passenger to watch for oncoming automobiles. After receiving a negative response from her guest passenger, she commenced a left turn with no oncoming vehicle within the range of her vision. She had a right to assume that any southbound motorist would be traveling at a reasonable speed under the circumstances. She did not see the oncoming Chauvin vehicle because it was too far distant for its lights to be observed in the fog that prevailed. We find that if Chauvin had been traveling at a reasonable speed under the circumstances, Mrs. LeCompte would have completed her turn without incident. We can think of no additional caution Mrs. LeCompte could have exercised under the circumstances, except to remain stationary on the highway, which we find she was not required to do under the circumstances of this case.
We find this case somewhat analogous to Demerest v. Travelers Insurance Company, 234 La. 1048, 102 So.2d 451 (1958), wherein a motorist crossing a highway in a fog was exonerated from fault even though her vehicle was struck by a motorist traveling upon the highway in his proper lane of travel. In Demerest, above, the court found that the excessive speed of the driver upon the highway was the sole proximate cause of the accident.” (Emphasis added).

We observe that Mrs. Boyer took the same precautions taken by Mrs. LeCompte: her headlights were on, her left blinker was in operation, she stopped her vehicle to look for the lights of oncoming cars, and she asked her guest passenger to do the same. However, notwithstanding these important similarities, certain factual differences between the two cases only strengthens our decision to reverse the trial court’s finding that Mrs. Boyer was negligent: (1) Chau-vin’s speed in Lapeyrouse, characterized as “grossly excessive” by that court, was less than the 55 miles per hour that Mabry admitted he was driving when the accident in this case occurred; (2) Chauvin was driving a Pontiac; Mabry was driving a fully loaded milk truck, which was acknowledged by Mabry to be much more difficult to stop than an ordinary car; and (3) Chauvin had his headlights on; Mabry did not.

We find that if Chester Mabry had been traveling at a reasonable speed under the circumstances, and if he had illuminated his headlights, then Mrs. Boyer would have either completed her turn without incident or waited for the milk truck to pass.

DAMAGES

a. Pain and Suffering

The record discloses that Mrs. Bize, 49 years old at the time of the accident, was admitted to the Huey P. Long Memorial Hospital in Pinevile, Louisiana, on nine separate occasions between the date of the accident on October 21,1976, and March 29, 1977. The hospital’s records disclose that during this five month period Mrs. Bize complained of foot and ankle pains, chest pains and neck pains. She was told to wear a soft collar to relieve her neck pains, but was forced to endure a painful right foot for over two months before the hospital’s staff x-rayed the right foot in January, 1977, discovered a fracture at the base of the 5th metatarsal, and put her foot in a cast for one to two months. When the cast was finally removed, the fracture was healed but she still complained of pain in that area. ' She wore the collar for many months after the accident and she testified at trial that she still wears the collar occasionally because she still suffers from neck pain.

Because of her disabling pain, Mrs. Bize testified, she has been unable to resume her pre-accident employment. at the Joan of Arc Canning Factory. She has been forced to depend to a large degree on others to perform chores that she could formerly do herself. Her testimony was supported by other lay testimony and was believed by the trial judge, who awarded $10,000.00 for her pain and suffering. We cannot say the trial judge committed manifest error in accepting the lay evidence with respect to Mrs. Bize’s pain and suffering when the hospital’s medical records establish that she suffered a broken foot as a result of the accident, and other medical evidence, discussed in detail elsewhere in this opinion, establishes that her subjective neck injury might have been caused by the accident. Nor can we say that the trial judge abused his discretion in granting $10,-000.00 for her pain and suffering. Therefore this portion of the total award will not be disturbed.

b. Past and Future Wages

Mrs. Bize testified she was a seasonal employee at a local canning factory when the accident occurred. She stated that she worked a regular 40 hour week six months a year at a wage of $2.30 per hour. She has been unable to return to her job, she said, because of the pain caused by the accident. The trial judge believed her testimony and awarded her $6,000.00 for loss of past wages from the date of the trial, and $14,-000.00 for the loss of future wages.

As discussed hereinafter, we believe that the medical evidence supports the trial judge’s decision to award damages for the loss of past wages to the date of trial, even though no doctor made a positive statement that she was disabled to that date as a result of the accident.

Apart from the hospital’s medical records, which were previously discussed, the medical evidence consisted of medical reports submitted by Doctors John T. Weiss and Don K. Joffrion and the deposition of Doctor John Patton, a neurosurgeon.

After her last visit to the hospital in March of 1977, Mrs. Bize consulted Doctor Weiss on September 21, 1977, almost a year after the accident and six months after she last sought medical attention. Doctor Weiss reported that Mrs. Bize could have had some residual soreness in her right foot because of the fractures. He also speculated that she subjectively could be having some mild soft tissue strain in her neck and low back secondary to the injury but he believed that with the passage of time this would resolve itself. Doctor Weiss also believed that if Mrs. Bize used a good lace-up, steel shank shoe and used her foot in walking then she probably could return to work. He did not believe she would have any residual impairment from her injuries.

Another year later, on October 19, 1978, Doctor Joffrion examined Mrs. Bize. He found Mrs. Bize to be active and agile and in no distress. He found no signs of acute injury at that time but felt it plausible that a wreck such as the one she described to him could aggregate “at least temporarily” the radiographic changes that he found in her low back. He discharged her from his care without prescribing any treatment.

Seven months later, Mrs. Bize was examined by Doctor Patton. His neurological examination revealed some restriction of motion in her neck but “no significant specific neck pathology.” He also found hy-pethesia along the left calf and foot and a decreased left ankle jerk. But based upon her history and his examination, Doctor Patton felt that her symptoms were caused by natural degenerative changes (such as obesity and' osteoarthritic changes) in her neck, back, knees and hips, rather than traumatic degenerative changes attributable to the accident. Doctor Patton next examined her on July 10, 1979, at which time he found, through x-rays, some mild osteodegenerative changes in her cervical and lumbar regions. A myelogram was performed on August 1, 1979, but it was negative. Neither Doctor Patton nor any other physician has seen Mrs. Bize since that time.

In spite of the consistent negative objective findings of Doctors Weiss, Joffrion, and Patton, Mrs. Bize claims that her pain has never really subsided since the accident. In fact, she now has severe problems with her left leg in addition to her neck and claims she has been confined to a wheelchair since the myelogram was performed, although she offered no proof that a physician instructed her to use the wheelchair.

We feel that the most liberal interpretation of the above medical evidence, together with Mrs. Bize’s own testimony, justifies the conclusion that if Mrs. Bize was rendered incapable of performing her job by the injury she suffered in the accident, such disability certainly did not extend beyond the date of the trial on March 26, 1980.

Having concluded that there was sufficient medical evidence in the record to support the trial judge’s conclusion that Mrs. Bize was prevented from working from the date of the accident to the date of trial because of her accident-related injuries, we now conclude that the judge committed no error in basing the $6,000.00 award upon Mrs. Bize’s own testimony, which was unsupported by documentary evidence or testimony from her employer. Proof of loss of past wages may be established by the credible testimony of the claimant. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La.1971); Davis v. Bowman, 346 So.2d 225 (La.App. 4th Cir. 1977).

Assuming that Mrs. Bize had worked her regular 40 hours a week, and further assuming that there are four weeks in a month, Mrs. Bize would have worked 160 hours in any given month. Forty months elapsed between the date of the accident on October 21, 1976, and the date of trial on March 26, 1980. Since Mrs. Bize worked only six months out of the year, she would have worked during twenty of those months. At 160 hours per month, Mrs. Bize would have worked 3,200 hours during that time. Since she earned a wage of $2.30 per hour, she would have earned $7,360.00 in the forty months preceding the trial. We cannot say that the court abused its discretion in awarding to Mrs. Bize $6,000.00 for past lost wages.

We reach a rather different conclusion with respect to the $14,000.00 award made for loss of future wages. Mrs. Bize testified that she would be unable to work in the future because of her disabling injury. While the medical evidence was inconclusive at best in determining whether Mrs. Bize exhibited any objective injuries attributable to the accident which may have caused her sustained disabling pain, certainly none of the medical evidence can be said to support an award for future lost wages. Indeed, Doctor Weiss concluded 2V2 years before trial (one year after the accident) that she could return to work if she used a certain type shoe and walked on her healed foot. The fact that Mrs. Bize may never work again is more attributable to natural degenerative changes than to the accident, as Doctor Patton confirmed in his deposition. The absence of any evidence, other than Mrs. Bize’s largely uncorroborated claim, that accident caused injuries, rather than natural degenerative conditions, will prevent her from working in the future supports our conclusion that the award for loss of future wages should be disallowed. Young v. Department of Hospitals, 365 So.2d 848 (La.App. 3rd Cir. 1978), writ denied 368 So.2d 137 (La.1979). Hence the judgment in Mrs. Bize’s favor will be reduced by $14,000.00.

MEDICAL EXPENSES

The trial judge awarded Mr. Bize $2,682.00 in damages for past and future medical expenses. Past medical expenses totalling $1,566.00 have been proven by the Bizes. However, there is no medical or lay testimony, or any other evidence, which supports the additional amount awarded for future medical expenses. In the absence of any evidence indicating that additional medical expenses will be incurred, no award should be made. Wilson v. Magee, 367 So.2d 314 (La.1979); Smith v. Castle, 361 So.2d 303 (La.App. 1st Cir. 1978), writ denied 362 So.2d 795 (La.1978). Accordingly, the judgment in Mr. Bize’s favor will be reduced by $1,116.00.

DECREE

For the above and foregoing reasons the judgment of the district court in favor of Ralph, Shirley, and Rodney Bize against Chester Mabry and Walker-Roemer Dairies, Inc. is affirmed, but the awards therein to Ralph Bize for $2,682.00 and Shirley Bize for $30,000.00 are reduced to $1,566.00 and $16,000.00 respectively.

The judgment in favor of Ralph, Shirley, and Rodney Bize against Syble and Emile Boyer and USAA Casualty Insurance Co. is reversed and the suit against them is dismissed.

Chester Mabry and Walker-Roemer Dairies, Inc. are cast for all trial costs and three-fourths of the costs incurred on appeal. The remaining one-fourth of the appellate costs is assessed against Ralph and Shirley Bize.

AFFIRMED IN PART, REVERSED IN PART, AMENDED, AND RENDERED.

      . In response to a question by the trial judge, Mabry replied that he did not know if he could stop within the distance illuminated by his headlights. Contrary to the contention voiced by Mabry and his employer, we do not believe this is indicative of a finding that Mabry had his headlights on.


text:
    Syble BOYER and Emile Boyer, Plaintiffs-Appellants, v. WALKER-ROEMER DAIRIES, INC., and Chester A. Mabry, Defendants-Appellees.
    No. 8049.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Antoon, Dalrymple & Beck, Joseph T. Dalrymple, Alexandria, for plaintiffs-appellants.
    Provosty, Sadler & deLaunay, Michael T. Pulaski, Alexandria, for defendants-appel-lees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is the companion suit to Bize v. Boyer, 402 So.2d 110 (La.App.3rd Cir. 1981). In that case, we affirmed the trial court’s determination that Chester Mabry was negligent, but we reversed the finding that Syble Boyer, the left-turning motorist, was also negligent.

In this case, Syble and Emile Boyer have sued Mabry and his employer, Walker-Roemer Dairies, Inc., for personal injuries, medical expenses, lost wages, and property damages sustained as a result of the accident. For the reasons expressed in the companion suit we reverse the factual finding that Syble Boyer was contributorily negligent.

Since the Boyers’ recovery is no longer barred we will award damages for the losses occasioned by the tortfeasor, Chester Mabry.

The impact of the collision rendered Mrs. Boyer unconscious and fractured her right clavicle. In addition to the fracture, she suffered several cuts and bruises. She was admitted to Huey P. Long Memorial Hospital for three days of treatment and observation following the accident. According to the hospital records in evidence, Mrs. Boyer was last seen at the clinic as an out-patient on December 14, 1976. At that time her fracture had not completely healed.

Apart from the hospital records, the only medical evidence offered on Mrs. Boyer’s behalf was a report prepared by Dr. John T. Weiss on March 16,1979, after an examination conducted three days earlier. Doctor Weiss concluded that Mrs. Boyer’s fracture had healed, and would result in no significant residual impairment. When he examined her, he found that she had some residual sensitivity from lack of use and fear of usage of her arm.

One of Mrs. Boyer’s daughters, Sylvia, testified that she moved from California to her mother’s home shortly after her mother was injured to take care of the elder Mrs. Boyer, and was still living with her at the time of trial over three years later.

For her pain, suffering, and temporary disability, we believe Mrs. Boyer is entitled to an award of $5,000.00. The evidence demonstrates that Mrs. Boyer has experienced significantly less pain, discomfort, and disability than her daughter, Shirley Bize, who was injured in the same accident.

Mrs. Boyer incurred a hospital bill of $205.80 for her three-day stay following the accident. She is entitled to recover this amount. No other medical expenses were proven at trial.

Mrs. Boyer stated that her injury has prevented her from returning to work as a seasonal employee at the Joan of Arc Potato Farm and Plant where she worked forty hours a week, nine months a year, at $2.10 per hour. We believe she is entitled to an award for loss of past wages in the amount of $3,000.00, which is equivalent to one season of missed work. The evidence shows that Mrs. Boyer’s fractured clavicle was not completely healed by December 14, 1976, but an earlier report on November 23, 1976, indicated that the fracture was healing well. Mrs. Boyer is not entitled to a greater award for lost wages because her history of accident related pain and disability is not as compelling as the evidence produced by her daughter. (See quantum discussion in Bize v. Boyer, La.App., 402 So.2d 110. Also, Doctor Weiss’ conclusion that Mrs. Boyer’s residual sensitivity resulted from a lack of use and fear of usage did little to help her case.

Since there is no medical evidence substantiating Mrs. Boyer’s claim that her accident related injury will cause her to lose wages in the future, her claim for future wage loss is denied. Young v. Department of Hospitals, 365 So.2d 848 (La.App. 3rd Cir. 1978), writ denied 368 So.2d 137 (La.1979).

The accident completely demolished the 1969 Chevrolet pickup truck that Syble Boyer was driving. The parties stipulated that the truck, which belonged to Syble Boyer’s husband Emile, had a value of $500.00 on the date of the accident. Accordingly, Mr. Boyer is entitled to recover this amount from the defendants in this suit.

DECREE

For the above and foregoing reasons the judgment of the district court which found Syble Boyer to be contributorily negligent and which dismissed the Boyers’ suit against Chester A. Mabry and Walker-Roemer Dairies, Inc. because of said contributory negligence is reversed and set aside, and it is hereby Ordered, Adjudged and Decreed that there be judgment herein in favor of Syble Boyer and against the defendants, Chester A. Mabry and Walker-Roemer Dairies, Inc., jointly and in solido in the sum of $8,205.80, with legal interest from date of judicial demand; and that there be judgment herein in favor of Emile Boyer and against Chester A. Mabry and Walker-Roemer Dairies, Inc., jointly and in solido in the sum of $500.00 with legal interest from date of judicial demand. All trial and appellate costs are assessed against the defendants, Chester A. Mabry and Walker-Roemer Dairies, Inc.

REVERSED AND RENDERED.


author: PEREZ, Judge.

text:
    CITY OF WESTWEGO MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD v. David J. STERLING.
    No. 11893.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied Aug. 17, 1981.
    Molony, Nolan, North, Riess & Hall, Terrence E. Hall, New Orleans, for defendant-appellant.
    Lazard Levy, Marrero, for plaintiff-ap-pellee.
    Before GULOTTA, SCHOTT and PEREZ, JJ.
   PEREZ, Judge.

On April 29, 1977, appellant, David J. Sterling, Sr., began his “working test” period with the Westwego Police Department. By letter dated October 19, 1977, Officer Sterling was notified that his position as police officer with Westwego Police Department had been terminated. The only information contained in the letter was that Officer Sterling had been terminated and notified of his right to appeal.

Thereafter, months of negotiations took place between appellant’s attorney, and the attorney for the City of Westwego Municipal Fire and Police Civil Service Board. Unable to formally effectuate the settlement, Officer Sterling’s appeal was heard on August 9, 1978.

The Civil Service Board, without written reasons, upheld the discharge of Officer Sterling.

Thereafter, the Civil Service Board’s decision was appealed to the 24th Judicial District Court where it was affirmed.

Appellant, Officer David J. Sterling, Sr., appeals from the judgment.

The issues presented to this court include whether Officer Sterling was discharged according to statutory procedure as contained in LSA R.S. 33:2531 et seq., and whether the discharge was for proper cause as enumerated in LSA R.S. 33:2555.

Regarding the procedure used by the Westwego Police Department in discharging Officer Sterling, we find it contrary to the statutory provisions contained in LSA R.S. 33:2555 which provides in part:

“The period of the working test shall commence immediately upon appointment and shall continue for a period of not less than six months nor more than one year. Any employee who has served at least three but less than six months of his working test for any given position may be removed therefrom only with the prior approval of the board, and only upon the grounds that (1) he is unable or unwilling to perform satisfactorily the duties of the position to which he has been appointed or (2) his habits and dependability do not merit his continuance therein. Any such employee may appear before the board and present his case before he is removed.

The City of Westwego contends that LSA R.S. 33:2560 applies in the instant case, and therefore, the procedure used in discharge was proper. We disagree. Section 2560 deals with the tenure of persons who have been regularly and permanently inducted into positions of classified service.

Officer Sterling clearly fell within the provisions of Section 2555 as a “working test” employee. Consequently, the City of Westwego was bound by the provisions set forth in Section 2555 regarding discharge of such an employee. The facts clearly indicate that the appellee failed to follow this procedure.

There was no board approval prior to Officer Sterling’s discharge, nor was he given the opportunity to appear before the Board prior to his termination. These requisites should have been met prior to Officer Sterling’s removal.

In Devillier v. City of Plaquemine, 341 So.2d 1153 (La.App. 1st Cir. 1976), the court considered the propriety of the discharge of a probational patrolman with between three and six months service. Relying on R.S. 33:2555, the court held:

“It is clear from the above that Mr. Dev-illier could be dismissed only with prior approval of the board, and after a hearing if the employee desires one. The board could have and should have refused to approve the dismissal on that ground alone 341 So.2d at 1155.”

Further, the court in Devillier held that under the provisions set forth in R.S. 33:2531 et seq., employees fall within three different classifications: Temporary or provisional; probational; and regular or permanent, 341 So.2d at 1154.

Therefore, as a probational policeman with between three to six months service, Officer Sterling could only be removed under the provisions of R.S. 33:2555, and not R.S. 33:2560 as argued by the City of West-wego.

Accordingly, the judgment of the district court dismissing plaintiff’s appeal is reversed. There is judgment in favor of appellant, David J. Sterling, and against the City of Westwego Municipal Fire and Police Civil Service Board setting aside appellant’s termination as a police officer and awarding appellant back pay from October 19, 1977, all costs are assessed against the Civil Service Board.

REVERSED.

In its application for rehearing ap-pellee correctly points out that we failed to incorporate in our original opinion and decree the limitation on back pay to appellant required by R.S. 49:113. Accordingly, against the award of back pay to appellant shall be credited and set-off all wages and salaries earned by appellant in private employment in the period of separation.

In all other respects the application for rehearing is denied.

ORIGINAL DECREE AMENDED.

REHEARING DENIED.


author: HALL, Judge.

text:
    Gloria ROLLO, Individually and as Administratrix for the Estates of Charles Jefferson Rollo, III and Shelley Michelle Rollo, Respondent, v. Roosevelt DISON, et al., Relators.
    No. 14665.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 1981.
    Writ Denied Sept. 9, 1981.

      Thomas & Dunahoe by Gerard F. Thomas, Jr., Natchitoches, for relator; Laura Jewell Peacock Anderson, individually and as executrix of the estate of R. C. “Pat” Anderson.
    Julian E. Bailes, Natchitoches, for relator, W. C. Clark.
    Watson, Murchison, Crews, Arthur & Corkern by Ronald E. Corkern, Jr., and Raymond Arthur and Richard N. Ware, Natchitoches, for respondent; Gloria Rollo, individually and as administratrix for the estates of Charles Jefferson Rollo, III, and Shelley Michelle Rollo.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Writs were granted in this case on the application of certain defendants to review the correctness of a judgment denying their motion to recuse the judge of the district court in which the suit was filed. Finding that grounds for recusal exist under LSA-C.C.P. Art. 151(2), we reverse and set aside the judgment and order the recusal of the district judge.

Gloria Rollo, individually and as adminis-tratrix of the estate of two minor children born of her marriage with Charles J. Rollo, Jr., from whom she was divorced, filed this suit on April 11, 1980 in the Thirty-Ninth Judicial District Court for Red River Parish, seeking damages arising out of the alleged murder of her former husband and father of the children. Originally named as defendants were Roosevelt Dison, the Estate of R. C. “Pat” Anderson, James R. Salim, and W. C. Clark. It was alleged that Dison intentionally shot and killed Rollo; that Anderson conspired to have Rollo killed and that he paid a sum of money to Salim for that purpose; that Salim paid the money to Clark for the purpose of contracting for the killing of Rollo; and that Clark in turn paid Dison for the actual killing. Louisiana Farm Bureau Mutual Insurance Company, liability insurer of Anderson, was subsequently joined as a party-defendant. Various responsive pleadings were filed by all defendants except Salim, who may not have been properly served, and Dison. Several exceptions were heard and ruled on by Judge John S. Stephens, sole judge of the judicial district.

On April 27, 1981, defendants Dison, Clark, Estate of Anderson, and Louisiana Farm Bureau filed a motion to recuse Judge Stephens. The motion alleged that at the time of the alleged murder Judge Stephens was assistant district attorney of the Tenth Judicial District, then composed of Natchitoches and Red River Parishes; that Raymond Arthur, one of plaintiff’s attorneys, was also an assistant district attorney and as such Judge Stephens was associated with Mr. Arthur during Mr. Arthur’s employment in this case; that Judge Stephens in his capacity as assistant district attorney was consulted by police authorities with regard to the bringing of criminal charges and the arrest of Dison for the alleged murder of Rollo; that Judge Stephens in his capacity as assistant district attorney prosecuted Dison on charges of armed robbery; and that Judge Stephens in his capacity as assistant district attorney performed judicial acts in this cause in another court.

By supplemental and amending motion, defendants alleged that Judge Stephens had an interest in the cause arising out of his described activities as assistant district attorney.

After the original motion to recuse was filed, Judge Stephens appointed a lawyer domiciled in the judicial district who had the qualifications of a district judge to try the motion to recuse, pursuant to LSA-C. C.P. Art. 156. Following the filing of the supplemental and amending motion alleging the judge’s interest in the cause as a ground for recusation, a district judge of an adjoining district was appointed to try the motion to recuse, all in accordance with Article 156.

At the trial of the matter before the judge ad hoc the following facts were established. At the time of the alleged 'murder, the Tenth Judicial District was composed of Natchitoches and Red River Parishes. Ronald C. Martin was district attorney for the judicial district. He had five assistants, one of whom was Judge Stephens who held the position of first assistant district attorney and primarily handled matters in Red River Parish.

The murder occurred in Natchitoches Parish. Sheriff’s deputies gained information implicating Dison whom they located in Red River Parish. Believing they had probable cause to arrest Dison but wanting legal advice, the deputies contacted Assistant District Attorney Stephens, who met with them. After reviewing the matter with the deputies, Stephens expressed his opinion that there was probable cause to make the arrest and to charge Dison with murder.

Thereafter, Stephens had no further personal connection with the Rollo murder case. District Attorney Martin may have discussed the case generally and informally with him. The cases arising out of the murder were assigned primarily to Assistant District Attorney Mike Henry. Murder charges were filed against Anderson, Clark, and Dison. The case against Anderson was terminated by his death. Dison and Clark were prosecuted by the district attorney’s office and were convicted. At the time of trial of the motion to recuse, Dison’s conviction had been affirmed on appeal and Clark’s appeal was pending.

After the Rollo murder and the arrest of Dison, Assistant District Attorney Stephens prosecuted Dison on a charge of armed robbery which occurred in Red River Parish prior to the Rollo murder. The armed robbery was unrelated to the Rollo murder, except that Dison told law enforcement officers he committed the robbery because he wanted to be sent to jail so he would not have to go through with the Rollo contract for which he had already accepted some money.

In denying the motion to recuse, the judge ad hoc rendered written reasons for judgment. The judge ad hoc held that a criminal prosecution is a separate and distinct “cause” from a civil damage suit arising out of the same facts, citing Ray v. Bird & Son, Inc., 323 So.2d 904 (La.App.2d Cir. 1975) and McNeill v. Continental Casualty Company, 244 So.2d 693 (La.App. 4th Cir. 1971), and that when Assistant District Attorney Stephens was consulted about evidence in the criminal prosecution he was not “consulted as an attorney in the cause” within the meaning of Article 151(2). The judge further held that Assistant District Attorney Stephens’ acts were not “judicial acts” at all within the meaning of Article 151(3). The court further held that Judge Stephens was not “interested in the cause” in that he had no personal advantage to decide the civil case one way or the other. The judge ad hoc also held that there was no significance to the fact that plaintiff’s attorney and Judge Stephens both served as assistant district attorneys at the same time, since neither took any part in the Rollo case, except the limited participation of Assistant District Attorney Stephens as previously described.

Defendants Clark, Estate of Anderson, and Louisiana Farm Bureau, but not Dison, applied for writs directed at the denial of their motion to recuse. While the application was pending, Louisiana Farm Bureau advised this court that the matter is moot as far as it is concerned since Judge Stephens, after the motion to recuse was denied in the district court, sustained its motion for summary judgment and dismissed it from the suit.

This court granted writs and issued a stay order. Relators-defendants make the following arguments:

(1) The trial judge was consulted as an attorney in the cause and was associated with an attorney during the latter’s employment in the cause, constituting grounds for recusal under Article 151(2);

(2) The trial judge performed a judicial act in the cause in another court, constituting grounds for recusal under Article 151(3); and

(3) The trial judge is. interested in the cause, constituting grounds for recusal under Article 151(5).

Respondent argues:

(1) The criminal prosecution in which the judge was consulted as an attorney or was associated with an attorney was a separate cause from the present civil suit;

(2) The acts of the trial judge as an attorney were not judicial acts;

(3) The trial judge has no interest or personal advantage to be gained in the case; and

(4) The motion to recuse was not timely filed.

The sole and exclusive grounds for recusation of a judge in a civil action are contained in LSA-C.C.P. Art. 151. Bias, prejudice, and impartiality are not statutory grounds for recusation in a civil case, as they are now in a criminal case. See LSA— C.Cr.P. Art. 671. See also and compare the perceptive concurring opinion of Judge Gui-dry in Southern Builders, Inc. v. Carla Charcoal, Inc., 357 So.2d 638 (La.App.3d Cir. 1978), writ ref. 358 So.2d 632 (La. 1978); and Art. 1, § 2, La.Const. 1974. There must be a statutory ground for recusing a judge. State v. Chantlain, 42 La.Ann. 718, 7 So. 669 (1890); Shreveport Long Leaf Lumber Co. v. Jones, 188 La. 519, 177 So. 593 (1937); Southern Builders, Inc. v. Carla Charcoal, Inc., supra.

We first address relators’ arguments which we find to be without merit.

The facts do not even remotely suggest that Judge Stephens is “interested in the cause” within the meaning of Article 151(5). Interpreting identical language in former LSA-R.S. 15:303 which set forth the grounds for recusation of judges in criminal actions, the Louisiana Supreme Court in State v. Pailet, 246 La. 483, 165 So.2d 294 (1964) held:

“For a judge to have an interest in a case within the meaning of the law, * * * some fact must exist that leads to the conclusion that it is to the judge’s personal advantage, whether he would be influenced by such advantage or not, to decide the case or to seek to bring about a decision therein, for or against one of the parties to it, without reference to the law and the evidence.”

See also State v. LaBorde, 214 La. 644, 38 So.2d 371 (1948); State v. Morgan, 142 La. 755, 77 So. 588 (1918); State v. Phillips, 159 La. 903, 106 So. 375 (1925).

Here, there are no facts that indicate it would be to the judge’s personal advantage, financially, professionally, or otherwise, to decide this case for or against any of the parties. Relators’ argument in this respect is without merit.

The judge did not perform “a judicial act in the cause in another court” so as to constitute a ground for recusation under Article 151(3). As used in this subpara-graph, judicial act means an act by a judge or court official. Ordinarily, this subpara-graph would come into play where an appellate judge has performed a judicial act in a case while serving as a trial judge, and would thereby be recused from hearing the case on appeal. Obviously a judge should not review his own judicial acts, or a case in which he performed a judicial act even though that act may have been merely ministerial or a minor step in the proceeding. For an example of this situation see State, through the Department of Highways v. Centuries Memorial Park Association, Inc., 395 So.2d 1365 (La.1981), in which Chief Justice Dixon recused himself from participating in a case before the Supreme Court on application for writs because he had signed an expropriation order in the case while on temporary assignment in the district court where the case originated.

Neither Assistant District Attorney Stephens’ actions in giving advice to law enforcement officers concerning the arrest of Dison on criminal charges nor his action in prosecuting Dison on the armed robbery charge amounted to judicial acts within the contemplation of Article 151(3).

Relators’ final argument based on Art. 151(2) does have merit and mandates recu-sal of Judge Stephens.

The office of the district attorney, in which Judge Stephens served as first assistant for many years prior to his election as judge, served as counsel for the State adversely to the defendants in this case in criminal matters arising out of the same circumstances that give rise to this civil suit. Although Stephens’ personal contact with the criminal proceedings was minimal, the legal office in which he held a high and responsible position handled the prosecution of the defendants from inception, through trial and even yet on pending appeal. Files in the district attorney’s office were open and available to all assistants. Although each assistant had certain assigned responsibilities, there was cooperation and interchange of responsibility where necessary. The first assistant district attorney can no more be disassociated from the significant activities of the district attorney’s office than can a partner in a law firm be disassociated from the activities of his firm. It has long been recognized that for purposes of determining conflicts of interest and other ethical matters, the work and clients of a law firm are the work and clients of all the partners and associates of the firm. See for example DR 5 — 105, Code of Professional Responsibility, Louisiana State Bar Association; Brasseaux v. Girouard, 214 So.2d 401 (La.App.3d Cir. 1968), writ ref. 253 La. 60, 216 So.2d 307 (1968).

Subparagraph (2) of Article 151 recognizes this principle when it makes the judge’s association with an attorney during the latter’s employment in the cause a ground for recusal.

Respondent argues, and the judge ad hoc held, that Stephens’ employment or consultation and his association with an attorney during the latter’s employment were not “in the cause” because this civil suit is a separate “cause” from the criminal prosecutions. The judge ad hoc in reaching this conclusion relied on this court’s holding in Ray v. Bird & Son, Inc., supra, where we stated:

“... Additionally, the fact that the trial judge heard a traffic violation matter arising out of the same accident does not constitute the performance of a judicial act “in the cause” in another court. The traffic violation matter is a separate and distinct “cause” from the civil damage suit. ... ” (Emphasis supplied)

In the Ray case, which was a civil damage suit arising out of an automobile accident, a party sought by oral motion to recuse the judge under LSA-C.C.P. Art. 151(3) because he had heard a traffic violation charge arising out of the same accident. The primary holding of this court was that the motion was not properly presented because it was not in writing as required by LSA-C.C.P. Art. 154. The additional reason for affirming the denial of the motion quoted above was dictum. More careful consideration and research in the instant case reveals that the underlined statement made in the Ray opinion was an erroneous statement of the law. “Cause” should not be so narrowly construed.

Subparagraph (2) deals with a judge’s prior acts in the cause as an attorney, not as a judge. The acts of an attorney in his role as advocate are not impartial, but are partial to the client and adverse to the opposing party. One who acts as attorney for one party adverse to another party in a legal matter arising out of a given set of circumstances should not later sit as judge in a case involving either of the parties arising out of the same circumstances. The judge’s previous partisan role as attorney could reasonably be viewed as affecting his impartiality in the case before him as a judge. The existence of the circumstances described in subparagraph (2) raises the appearance of bias, prejudice or impartiality. In State v. Lemelle, 353 So.2d 1312 (La. 1977), the Supreme Court held that LSA-C. Cr.P. Art. 671(3), which reads identically to LSA-C.C.P. Art. 151(2), required recusation of the trial judge who prior to becoming judge was appointed to represent a co-defendant jointly charged with the same offense as the defendant in the ease before the judge, even though the judge did not even remember the prior appointment and representation. The court held:

“. . . The legislature, by providing for a mandatory recusal in this situation, has apparently concluded that the appearance of impartiality, as well as impartiality itself, outweighs the inconvenience caused by recusal of the trial judge .. . . ”

Previous employment as an attorney in a matter arising out of the same circumstances and involving the same persons raises the same appearance of impartiality whether the employment was in the same case or in a related case. As used in subparagraph (2), “the cause” has a broader meaning than the particular case or legal proceeding before the judge in which a motion to recuse is filed. Lending support to this interpretation is the fact that the word “cause” is used instead of the words “case” or “action” which have a more restrictive meaning. The “cause” means the set of circumstances giving rise to the particular case or action.

The word “cause” has been changed to “case” in LSA-C.Cr.P. Art. 671(5), the criminal action counterpart to LSA-C.C.P. Art. 151(3). In discussing the calculated use of the words “cause” and “case”, the official revision comment following LSA-C.Cr.P. Art. 671 accurately and correctly states:

“The words ‘cause’ and ‘case’ are advisedly used in this Title. The broader word ‘cause’ embraces the entire situation, in both its civil and criminal implications. The word ‘case’ is limited to the particular criminal prosecution at bar. ‘Cause’ imports a judicial proceeding entire, and is nearly synonymous with ¡is in Latin, or suit in English. ‘Case’ not infrequently has a more limited signification, importing a collection of facts, with the conclusion of law thereon.’ Black’s Law Dictionary 279 (4th Ed. 1951). Such a distinction is supported by the case of State v. Williams, supra.”

State v. Perkins, 124 La. 947, 50 So. 805 (1909) held that Act 40 of 1880 which provided that a judge should be recused when consulted “as an advocate in the cause” was applicable and required recusation in a criminal proceeding where the judge was previously employed on the same matter in a civil proceeding. It follows that in a civil proceeding the judge should be recused if previously employed in the same matter in a criminal proceeding.

Where, as here, the judge was previously employed or consulted as an attorney or was associated with an attorney who was consulted or employed in connection with the same facts and circumstances that give rise to the action in which the motion to recuse is filed, grounds for recusal exist under Article 151(2). The consultation or employment was “in the cause” within the intent, purpose and meaning of the article. The article is particularly applicable here because the legal office with which the judge was associated actively and adversely to the defendants in this case sought to establish the same facts and circumstances as the basis for a criminal prosecution which plaintiff here seeks to establish as a basis for recovering damages from the defendants.

Neither the parties nor this court suggest the existence of the slightest degree of personal bias, prejudice, or impartiality by the honorable trial judge toward any party, or that the judge would not fairly and impartially try and decide this case. Our decision in this case rests on the express provisions of Article 151(2) which we find to be directly applicable to the circumstances presented here. Actual personal bias, prejudice, or impartiality is not an issue in this case.

' The response with which the judge has favored this court points out that he has no personal desire to act as trial judge in this case or any personal objection to being re-cused, but is concerned primarily with any precedent that might be set which would preclude a judge, particularly in a district with only one judge, from hearing matters in which the judge has performed other judicial acts in his capacity as judge of the same court. The discussion above of sub-paragraph (3) of Article 151 should make it clear that there is no such restriction or prohibition.

Respondent argues that defendants waived any right to have the judge recused because the facts on which they rely were known to them and their counsel at the outset of the litigation, yet the motion to recuse was not filéd until more than a year after the suit was filed and after several matters were submitted to and acted on by the judge without objection by the defendants. Respondent cites State v. Morgan, supra, in which the court recognized that in jurisdictions where bias or prejudice is a ground for recusation (which it was not in Louisiana at the time) it is generally held that an objection to a judge presiding in a case on the ground of bias or prejudice must be made before any issue is tendered for decision by him, or it will be considered waived, unless the facts on which the objection is based were not known until after the issue was submitted for a ruling.

LSA-C.C.P. Art. 154 provides that a written motion to recuse shall be filed “prior to trial or hearing” unless the parties discover the facts constituting the ground for recu-sation thereafter, in which event it shall be filed immediately after the facts are discovered.

The motion to recuse in this case was filed before trial or hearing on the merits and was timely under Article 154. The dictum in State v. Morgan relating to the rule in other jurisdictions is not controlling or applicable to this proceeding which is governed by a specific provision of the Code of Civil Procedure.

For the reasons assigned, the judgment denying the motion to recuse is reversed and set aside. It is ordered that Judge John S. Stephens be recused in this case. The case is remanded to the Thirty-Ninth Judicial District Court for further proceedings before Judge John S. Pickett, Jr., judge ad hoc, as provided by LSA-C.C.P. Art. 157 and otherwise in accordance with law.

Reversed and rendered.

      . LSA-C.C.P. Art. 151:
      “A judge of any court, trial or appellate, may be recused when he:
      “(1) Is a material witness in the cause;
      “(2) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
      “(3) Has performed a judicial act in the cause in another court;
      “(4) Is the spouse of a party, or of an attorney employed in the cause; or is related to a party, or to the spouse of a party, within the fourth degree; or is related to an attorney employed in the cause, or to the spouse of the attorney, within the second degree; or
      “(5) Is interested in the cause.
      “In any cause in which the state, or a political subdivision thereof, or a religious body or corporation is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body or corporation, is not a ground for recusation.”

      . If an additional reason for denying the motion to recuse in the Ray case needed to be given, and here we again engage in dictum, the reason was that the judicial action was not performed “in another court.” A district court is one court, not separate criminal and civil courts. State v. Williams, 229 La. 622, 625, 86 So.2d 403, 404 (1956). Subparagraph (3) deals only with judicial acts performed by the judge in the cause in another court, the necessary implication of which is that prior judicial acts of the judge in the cause in the same court are not grounds for recusation.