author: MARVIN, Judge.

text:
    John S. C. MASSEY, Plaintiff-Appellant, v. Jessie FORD, et al., Defendants-Appellees.
    No. 14710.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      John S. C. Massey, pro se.
    Paul Henry Kidd, Monroe, for defendants-appellees.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

After this partition action had been submitted for a decision, the trial court noticed that plaintiff had failed to join indispensable parties, dismissed the action, and later denied plaintiff’s application for a new trial, which, if granted, allegedly would have allowed plaintiff to remove or cure the defect. Plaintiff appeals. We reverse and remand. CCP 641, 646, 927, 931, 934, 1973.

Unless the contrary has been agreed, each of the co-owners of a thing has the absolute right to demand its division by the action of partition. CC Art. 1289; Fabacher v. Fabacher, 214 La. 940, 39 So.2d 426 (1949).

Nonjoinder of an indispensable party is one of the peremptory exceptions. When the grounds of this objection may be cured or removed by an amendment of the petition, CCP 934 mandates that the court shall order such an amendment within a delay to be fixed by the court before dismissing the action. Plaintiff alleged in his application for a new trial that he had inadvertently overlooked introducing into evidence, with other deeds and judgments of possession, a certified copy of a deed to a party defendant from the indispensable parties and that this deed would “cure” (remove) the defect of nonjoinder.

If the nonjoinder had been raised by a defendant after trial, but prior to submission, the plaintiff would have been allowed to introduce evidence to cure the nonjoin-der. CCP 931. When the nonjoinder is pleaded or noticed, the trial court may permit an amendment of the petition and may reopen a submitted case if further evidence is necessary. CCP 646. Compare the mandatory language of CCP 934. The official comments to CCP 646 state:

“(b) Although Louisiana cases may be found where the courts dismissed the action because of a failure to join a necessary or indispensable party, whenever the right to amend has been requested of the courts, they have granted it to permit plaintiff to effect joinder. Even when the defect has been noticed by the appellate courts, they have remanded the cases to permit the necessary joinder. See cases cited in McMahon 415, n. 74.
“(c) The right to reopen a submitted case to permit the reception of further evidence accords with the liberality of procedure applied in recent years. Cf. Succession of Robinson, 186 La. 389, 172 So. 429 (1937).”

See also Succn. of Gibson, 186 La. 723, 173 So. 185 (1937), and cases annotated under LSA-CCP Art. 646.

This nonjoinder may be cured by an amendment to the petition joining the indispensable parties as defendants. CCP 934 directs that such an amendment shall be permitted. This nonjoinder may also be cured by introduction of the alleged deed into evidence. Under these circumstances, and our construction of the cited authorities, we find that the trial court clearly abused its discretion in dismissing the action without allowing plaintiff a delay in which to attempt to cure or remove the defect of the nonjoinder. If the certified copy of the alleged deed does not remove the defect, an amendment to the petition will. CCP 934, 646 and comments.

The j'udgment appealed is reversed and this case is remanded with directions that a new trial be granted and that further proceedings be held consistent with these views. Because it was appellant’s oversight that produced this appeal, appellant is cast with cost of this appeal.

REVERSED AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    COMMERCIAL UNION INSURANCE COMPANY, David Covington and Donna Covington, Plaintiffs-Appellees, v. Dollan F. STIDOM and U-Haul Company of Dallas-Ft. Worth, Defendants-Appellants.
    No. 14713.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Theus, Grisham, Davis & Leigh by Ronald L. Davis, Jr., Monroe, for defendants-appellants.
    Kostelka, Swearingen & Street by Elmer G. Noah, Monroe, for plaintiffs-appellees.
    Before PRICE, MARVIN, and JASPER E. JONES, JJ.
   MARVIN, Judge.

Defendants appeal a judgment for damages that arose out of the collision of plaintiffs’ automobile with defendants’ stalled and temporarily abandoned truck on the eastbound incline of the Interstate 20 bridge over the Mississippi River. Quantum is not complained of and the issues concern whether the negligence of one or of both drivers legally caused the accident.

Except as to the plaintiff wife, a guest passenger in plaintiff’s automobile, we reverse, finding plaintiff contributorily negligent.

The accident occurred on a rainy daylight afternoon about 5:30 p. m. on August 9, 1978. Defendant Stidom, driving a rental U-Haul truck with a known faulty gas gauge, “guessed” that a tank of gasoline he purchased in Texas would enable him to drive across Louisiana. The U-Haul ran out of gas and stalled in the right eastbound traffic lane of the bridge incline. A safety lane about five feet wide is between this traffic lane and the railing of the incline. Stidom turned on the hazard lights of the truck, left it in the right lane, and departed the scene to seek gasoline. The accident occurred about 10 minutes later.

The trial court concluded that defendant’s conduct was negligent and was the [sole] cause of the accident. Causation was not discussed. The conduct of plaintiff was not discussed and no finding of fact related to plaintiff was made. Only the plaintiff and his guest-passenger-wife testified as to his conduct and, as a reviewing court, we are required to view their testimony in the most favorable light that would support the judgment of the lower court. Ford Motor Credit Co. v. Diffey, 378 So.2d 1032 (La.App.2d Cir. 1979). We must conclude, however, that the plaintiff driver was contributorily negligent.

Plaintiff was eastbound with his wipers operating, driving at 50 mph as he approached the incline in the right lane. Other traffic was on the highway but there was no traffic immediately ahead of or behind plaintiff. Plaintiff noticed that the traffic that was further ahead of him and in the left lane was slowing down as it approached the bridge. Plaintiff, in the right lane, did not slow his automobile but proceeded to overtake this traffic. He then found himself, in the right lane, immediately to the rear of an 18-wheeler that was in the left lane. Both were proceeding at an estimated 40-45 mph and plaintiff was blinded by the spray and mist created by the truck and the rain.

Plaintiff considered whether to speed up or to slow down to avoid the blinding spray and mist. He consciously elected and intentionally decided to speed up from about 40-45 mph to about 50 mph to pass the truck. The posted speed limit was 55 mph.

When plaintiff had almost passed.the slower moving truck and his visibility had cleared, he saw the stalled U-Haul and its flashing hazard lights about 125 feet away. He applied his brakes, skidded, but did not lose control of his automobile. When plaintiff applied his brakes, the 18-wheeler and a car immediately following it in the left lane, still traveling at about 40-45 mph, overtook plaintiff in the right lane. This traffic prevented plaintiff from entering the left lane to avoid the impending collision. Plaintiff estimates that he was skidding about 35 mph when the collision occurred. Plaintiff Mrs. Covington used her hand to shield her face and sustained one or more lacerations of that hand from the broken glass of the windshield of plaintiff’s automobile. She saw a doctor in Vicksburg who treated her and removed a piece of glass from the wound(s).

The conduct of plaintiff and of defendant are measured by the same standard and are subject to the same analysis. Theunissen v. Guidry, 244 La. 631, 153 So.2d 869 (1963).

But for defendant’s inattention to and his guess about his fuel supply and but for his failure either or both to remove the U-Haul from the traveled portion of the highway and to warn approaching traffic of the obstruction, the accident would not have happened.

But for plaintiff’s failure, first to respond to the slowing traffic ahead of him and to maintain a distance and speed that would have allowed him reasonable visibility and time in which to react to traffic and highway conditions that might develop, and but for plaintiff’s overtaking the 18-wheeler and entering the blinding spray it created, plaintiff would not have been in such a dire emergency. Secondly, we must conclude that but for plaintiff’s conscious election to increase, rather than to decrease, the speed of his automobile, the accident would not have happened.

Under these circumstances, the respective conduct of each driver was a cause in fact of the accident.

Many of the duties imposed upon motor vehicle drivers are detailed in the Louisiana Highway Regulatory Act, LRS 32:1 et seq. Section 141 imposed a duty upon defendant not to stop or leave his truck standing upon the traveled portion of the highway when it is practicable to leave the truck off the traveled portion of the highway. This section also provides that if it is impossible to avoid temporarily leaving a vehicle on the traveled portion of a highway, the driver shall remove it as soon as possible and until it is removed, the driver has the responsibility to protect traffic. It has been held that a driver has the duty to maintain his vehicle in a safe operating condition. Connecticut Fire Ins. Co. v. Illinois Central R. Co., 212 So.2d 716 (La.App. 4th Cir. 1968). This general duty, in these circumstances, should extend to defendant the specific responsibility to maintain his fuel system and supply so as to avoid the vehicle becoming disabled on the highway. These duties are imposed to protect other traffic against exposure to the identical risk that defendant created here.

Section 64(A) imposed a duty on plaintiff not to drive at a speed greater than was reasonable under the conditions and potential hazards, traffic, and weather then existing. Section 81(A) imposed a duty on plaintiff in the right lane, not to follow the 18-wheeler more closely than was reasonable and prudent under the traffic and highway conditions then existing. Section 74(B) permits passing on the right on multiple lane highways, only under conditions where the passing may be done in safety. A driver whose vision of the roadway is impaired has a duty to reduce his speed to a degree commensurate with the degree of impairment, even to the extent of stopping his vehicle as an extreme measure when visibility is substantially destroyed. Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972). These duties are imposed to protect other traffic against a collision, the identical risk contributed to by plaintiff.

The essence of these duties is reasonableness of conduct in the traditional negligence context. Under the circumstances of this case, the conduct of each driver was substandard, blameworthy, and was a breach of that driver’s legal duty. Each driver failed to conduct himself as a reasonable man and the conduct of each driver was a legal cause of the accident.

Plaintiff explained that had he maintained the 40-45 mph speed behind the 18-wheeler with his visibility substantially impaired, he would have struck the U-Haul at this much greater speed and caused greater damage. We agree. Plaintiff argues that he did everything humanly possible to avoid the accident and that we should affirm the judgment because no manifest error is shown. We do not agree.

Negligence is not determined by the. degree of the damage caused, but by the conduct that causes the damage. We conclude that plaintiff is negligent, not because of his conduct after he saw the obstructing U-Haul, but because of his conduct before he saw it. He contributed to the creation of the emergency in the respects mentioned and when faced with the emergency, he not only failed in his duty to reduce his speed, he purposely increased his speed, and attempted to pass the truck when conditions were not safe for him to do so. He drove at an unreasonable speed. § 64(A). He followed the 18-wheeler more closely than was reasonable. § 81(A). He attempted to pass on the right with his visibility substantially impaired when the passing could not be done in [reasonable] safety. § 74(B). The sudden emergency doctrine does not apply to lower the standard of care required of a motorist before the emergency occurs. Dick v. Phillips, 253 La. 366, 218 So.2d 299 (1969). The sudden emergency doctrine is inapplicable to, and cannot be claimed by one whose negligence precipitated the emergency. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972).

Under these circumstances, the judgment of the trial court is clearly wrong and shall be reversed against the plaintiff driver and his collision insurer, a co-plaintiff. As to the plaintiff wife, who was not shown to have been contributorily negligent in any respect, the judgment shall be affirmed. The judgment is couched in general terms and the $500 amount she sued for was included in the amount of the judgment “for plaintiffs” that was rendered below.

Accordingly, we amend to grant judgment only in favor of the wife for $500 with legal interest from judicial demand. Costs below were properly assessed against defendants. Costs of this appeal are assessed one-half to plaintiffs other than Mrs. Cov-ington, and one-half to defendants.

REVERSED in part, AMENDED AND AFFIRMED in part.


text:
    TEXAS GENERAL PETROLEUM CORPORATION, Plaintiff-Appellant, v. C. A. BROWN and Robert J. Brown, Defendants-Appellees.
    No. 14714.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      John M. Frazier, Shreveport, for plaintiff-appellant.
    Gamble & Sledge by Jack R. Gamble, Jr., Mansfield, for defendants-appellees.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this action to recover money paid in error, the plaintiff-mineral lessee appeals a judgment rejecting its demands. The money was bonus money paid to two defendants-lessors for the leases.

Unless the warranty is expressly excluded, a mineral lessor warrants title to the interest he leases, and the lessee may recover the bonus paid for a lease if the warranty of title is breached. LRS 31:120. Each lease excluded warranty against preexisting leases, the existence of which were known by lessee. At lessors’ insistence, this exclusion was typewritten on the lease form, a Bath form 14 BR1 2A PX 10-65:

“Lessor does not warrant this lease against pre-existing leases which may still be in effect, not even for return of bonus monies.”

The trial court admitted parol evidence which conflicted on the question of whether lessors agreed that the drafts given for the leases would not be paid until plaintiff-lessee succeeded in obtaining releases of the pre-existing leases. The trial court effectively held that the warranty exclusion negated any parol evidence that tended to show that the bonus was paid in error. For reasons we assign, we affirm the judgment.

Plaintiff’s principal office is in Houston. Plaintiff’s employee, Vaughn, employed two landmen-agents to negotiate the leases. These agents did not testify. The leases and the drafts given for the leases were dated in mid-May 1978. The drafts were drawn by one of the landmen on the account of Royal Resources Exploration, Inc. of Denver, in a Denver bank. Each draft stated:

“Upon approval of lease . . . described herein, and on approval of title to same by drawee not later than 60 days after arrival of this draft at collecting bank, PAY TO THE ORDER OF ...”

On May 28, 1978, each defendant endorsed his draft “for deposit” and placed it for collection with his Louisiana bank.

On July 20, 1978, plaintiff wrote defendants this proposed letter agreement regarding the release of the pre-existing leases and sought defendants’ acceptance of the proposal:

“I appreciate . . . the opportunity ... to explain the problems we have had in accomplishing . . . release of the former oil and gas leases.
“. .. We would like to use an outside attorney to ... formal[ly] demand . . . the release .. . and make arrangements to lease the property under the terms we discussed.
“Texas General Petroleum Corporation will pay the outside attorney’s fees as consideration for your obtaining the various oil and gas leases on the terms previously discussed, namely as a 3 year term, $50 per acre Bonus, $1 per year rental and Vb royalty.
“We propose to use [a named Shreveport attorney] ... It would be necessary for you to execute a form authorizing [this] attorney to act in your behalf.
“If this is agreeable ... [this attorney] will prepare and forward to you the form authorizing him to proceed as soon as you have executed a copy of this letter in the space provided and [have] returned it.”

This letter was signed “Agreed and Accepted” by each defendant.

On July 29, 1978, the collecting bank at Denver paid each draft. Vaughn testified that if the collector bank had contacted -him as it “should have”, he would have told the bank, “I don’t want the deal, dishonor the draft.” Neither Vaughn’s name nor plaintiff’s name was on the draft, but plaintiff’s name was on the lease attached to the draft. Vaughn testified that he hired the Shreveport attorney to work in the name of defendants to attempt to obtain the desired releases because the 60-day period mentioned in the drafts was about to elapse and that he wanted to maintain his contact with and continue the cooperation of defendants.

The drafts show that they were stamped “received, Royal Resources,” on June 1, 1978, a date which corresponds with the May 28 date the defendants placed the drafts with their Louisiana bank. On August 18, 1978, the Shreveport attorney referred to in plaintiff’s July 20 letter wrote to defendants and Vaughn that he was proceeding as instructed in defendants’ names to compel release of the pre-existing leases. Other correspondence in the record, dated in September 1978, replies to the Shreveport attorney’s demand for releases and asserts that the leases that releases of were requested, were held in force and effect by production. The Shreveport attorney testified that he did succeed in getting releases on either 40 or 80 acres of the 237 acres leased to plaintiff. The attorney also testified that he was not aware that the leases to plaintiff had actually been executed or that drafts had been given to defendants by plaintiff. Vaughn knew this but' obviously did not tell this to the attorney.

Plaintiff or its agents recorded the leases in the conveyance records of DeSoto Parish on October 25, 1979, 16 months after the collector bank paid the drafts. The blank in the monetary consideration paragraph of the lease form does not reflect the oft-used term “$10 and OVC”, but recites “$10 and no/100”. The bonuses actually paid by the drafts were $6,000 and $5,850 to the respective defendants.

Defendants are father and son. The son conducted the negotiations for both. He testified that he received a telephone call [that Vaughn said he made] about the drafts being paid by mistake. Defendants said that they executed the letter agreement after the telephone call. The Shreveport attorney hired by Vaughn wrote defendants on August 18, 1978, that he had been requested by plaintiff, at plaintiff’s expense, to attempt to secure the releases and that he understood that defendants had authorized him to represent them. The date of this letter corresponds with and corroborates defendants’ testimony that they signed the July 20 letter agreement after they learned in an August 3, 1978, bank statement that the drafts had been honored. Defendant was asked:

“Was [plaintiff’s telephone call that the drafts were paid by mistake] in accordance with your understanding that the money wouldn’t have been paid if they couldn’t release the property?”

Defendant answered:

“We didn’t go into that as I recall. I said, ‘write me a letter stating your contention and I will consult an- attorney,’ and they didn’t write. They entered suit.”

This action was filed November 14, 1979, about 15 months after the telephone call and the letter agreement in 1978.

The letter agreement of July 20, 1978, was written by Vaughn to defendants. Vaughn then knew that the 60-day period on the drafts was running and was part of his purpose in writing the defendants. He knew that the leases had been signed in mid-May by defendants. Yet he wrote:

“[Plaintiff] will pay the . . . attorney’s fees as consideration for your obtaining the various oil and gas leases on the terms previously discussed, namely as a 3 year term, $50.00 per acre bonus, $1 per year rental and Vs royalty.”

If Vaughn’s purpose was to extend the 60-day period given in the drafts and gain more time for plaintiff, he failed to clearly state this purpose. Defendants could not obtain leases of their own property as the letter agreement says, except by granting to plaintiff a lease excluding warranty against pre-existing leases as they had already done, because the property was already leased. Defendants knew this and, more importantly, Vaughn knew it. The warranty exclusion was placed in the lease at defendants’ insistence.

Where no specific findings of fact are made by the trial court, we are required to view the evidence in a light most favorable to appellees and in support of the judgment. Ford Motor Credit Co. v. Diffey, 378 So.2d 1032 (La.App.2d Cir. 1979). If we fully consider the parol evidence, as plaintiff insists, that evidence does not support or necessarily lead to the conclusion that defendants would not be paid bonuses unless plaintiff succeeded in releasing the pre-existing leases. The lease does not say this. The letter-agreement dated before, executed by plaintiff before, and by defendants after, the drafts were honored does not say this.

While defendant acknowledged the plaintiff attorney’s general proposition that there would be no bonus money if plaintiff did not obtain the desired releases, the totality of defendants’ testimony is to the effect that plaintiff was given 60 days to satisfy itself that its legal department could obtain the desired releases and that defendants would be notified by the bank at the end of the 60-day period whether the draft was or was not honored, and if the draft was honored, and even if plaintiff did not succeed in getting the desired releases, then defendants would not have to return any bonus money to plaintiff because of the express exclusion of the warranty in the lease.

The terms of the lease and the language of the drafts strongly support the conclusion that plaintiff had 60 days to decide whether it could succeed in getting the desired releases. Vaughn could have removed any risk to plaintiff simply by informing the collector bank within the 60-day period that plaintiff did not want the deal and to dishonor the draft. Whether that bank sought the approval of anyone before it honored the draft on July 29, 1978, approximately 60 days after it was presented to the Louisiana bank, is not shown and is of no concern in this action. Vaughn testified that he filed a “claim” against that bank in banking channels.

Under these circumstances, and whether or not parol evidence is admissible and “fully considered”, as plaintiff asserts in its assignment of error, plaintiff has not proved its case that the bonuses were paid in error. Whether money paid by mistake can be recovered appears to depend in part on the nature and degree of the mistake. A grossly careless mistake which could have been avoided by ordinary diligence is to be distinguished from the mistake that reasonable minds would conclude is sometimes made even by reasonable persons in the ordinary course of business. See Metropolitan Life Ins. Co. v. Mundy, 167 So. 894 (La.App. 1st Cir. 1986).

The drafts could be construed as suspending the order to the bank to pay for 60 days. See footnote 2. Plaintiff must be held to have known of the language of the drafts and the receipt of the drafts by the Denver bank.

In answer to the appeal, defendants claim that the appeal is frivolous and seek attorney fees and damages. While we have found appellant’s assignments of error to be without merit, we cannot say they are without foundation in law or in fact. We do not find that the appeal was taken solely for the purposes of delay and deny appellees’ claim for damages and attorney fees.

At the cost of appellants, judgment is AFFIRMED.

      . Mineral leases must be in writing and are subject to the parol evidence rule. Bills v. Fruge, 360 So.2d 661 (La.App.3d Cir. 1978). See also Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963); American Oil Co. v. Roland J. Robert, Distributor, Inc., 220 So.2d 144 (La.App. 1st Cir. 1969); CC Arts. 2276, 2278. Pa-rol evidence, however, is admissible in an action to recover a payment made that was not due. This action is treated specially in the Civil Code. See Articles 2301-2314, 2133.
      A thing has been paid when not due, if the payment was made under an agreement that was suspended by a condition, the event of which is uncertain. CC 2308. This conditional and suspensive effect does not extend, however, to a condition which is certain to occur such as a period of time. CC 2309. See also CC 2049, 2051.

      . Parenthetically, we observe that a draft payable upon approval of a title by the drawee not later than 60 days most probably becomes an instrument payable on demand when the 60 day term has elapsed without any contrary order to the bank by the drawee during that time. See LRS 10:3-503, 3-109, 3-506. Compare J. Pound’s opinion, Irving Trust Co. v. Leff, 253 N.Y. 359, 171 N.E. 569 (1930).


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

text:
    DESIGN & CORROSION ENGINEERING, INC., Plaintiff-Appellee, v. PIGGLY WIGGLY OF MANSFIELD, INC., Defendant-Appellant.
    No. 14717.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Wiener, Weiss, Madison & Howell by John M. Madison, Jr., Shreveport, for defendant-appellant.
    Rothell & Cohn, Ltd. (A Professional Law Corp.) by David A. Rothell, Mansfield, for plaintiff-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff contractor sued a defendant property owner to recover the total amount allegedly due under a contract involving the asphalt overlay of a parking lot and incidental work. From a judgment in favor of plaintiff as prayed for, defendant appealed, contending that the trial judge erred in:

(1) Holding that plaintiff substantially performed its obligations under the contract, rather than limiting recovery to quantum meruit.
(2) Failing to reduce the amount of plaintiff’s recovery by the sum proven necessary to perfect or complete the work.
(3) Finding, alternatively, that use of the parking lot by defendant constituted acceptance of the work, thus entitling plaintiff to recover the full contract price.

We affirm.

In June 1980 plaintiff and defendant entered into a written contract under which plaintiff was to fill in pot holes, sweep and overlay with asphalt cement defendant’s grocery store parking lot in Mansfield for a contract price of $23,112. A subsequent agreement concerning additional work increased that total contract price to $24,512. Work under the contract commenced on June 10, 1980 and was purportedly completed a week later.

Defendant refused to pay any part of the contract price, contending that plaintiff’s work was totally unsatisfactory. Consequently, plaintiff filed suit for $24,512. Defendant answered, denying owing plaintiff anything, and reconvened for $340.32 paid to engineers to conduct tests with reference to plaintiff’s work. Trial was had on February 12, 1981.

In a written opinion the trial judge concluded that, although there were deficiencies in plaintiff’s work, these were not of sufficient seriousness to prevent a finding of substantial performance of its contractual obligations; that defendant failed to prove either the extent of the claimed defects or what it would cost to cure them; and that, even if the cost of remedying the defects had been proven, defendant was barred from recovering that cost because it had accepted the contract work.

As acknowledged by the parties, the written agreement involved in this litigation is a building contract as defined by Louisiana Civil Code Article 2756 . Consequently, Louisiana Civil Code Article 2769 contains the basic applicable law.

According to the consistent jurisprudential interpretation of Article 2769, substantial performance of a building contract entitles the contractor to recovery under the contract. Whether there has been substantial performance is a question of fact. Among factors to consider in determ-ing substantial performance are the extent of the claimed defects or incomplete work, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work performed. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961); Lane Wilson Co., Inc. v. Gregory, 322 So.2d 369 (La.App. 2d Cir. 1975); Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir. 1975); Florida Ice Machine Corp. v. Branton Insulation, Inc., 290 So.2d 415 (La.App. 4th Cir. 1974); Maloney v. Oak Builders, Inc., 224 So.2d 161 (La.App. 4th Cir. 1969).

Where there has been substantial performance of the contract, the remedy of an owner who complains of defective or incomplete work is to prove (a) the existence of the defects or omissions and (b) the cost of repairing the defective work or completing the unfinished work. If the owner discharges his burden of proof, recovery by the contractor of the total contract price will be reduced by the cost of correcting or completing the work. Airco Refrigeration Service, Inc. v. Fink, supra; Neel v. O’Quinn, supra; Florida Ice Machine Corp. v. Branton Insulation, Inc., supra.

Defendant argues that plaintiff’s principal obligation under the contract was to overlay the parking lot with a IV2 inch layer of asphalt; that tests revealed the average thickness of the asphalt actually laid to be 1.36 inches; and that loose gravel, loose joints and rough spots on the parking lot evidenced defective workmanship. Because of this, defendant contends that plaintiff did not prove substantial performance of its contractual obligations.

J. R. Hunter, an employee of plaintiff who had been doing asphalt work for about 20 years, negotiated the contract on behalf of plaintiff, was in charge of the project and actually operated a machine which “rolled out” the asphalt on the surface encompassed by the contract. Hunter understood that under the contract he was to “patch all the holes . . . sweep the lot with a sweeper, and clean it up and lay an inch and one-half asphalt.” The area to be covered, including an access road, measured 5478 square yards. An industrywide “rule of thumb” calculated that, for a HA inch overlay, one ton of asphalt should cover an area of 12.12 square yards. Applying this formula to the area in question, something less than 500 tons would have been required. Hunter testified that, in fact, he applied 528.54 tons of asphalt on defendant’s parking lot and access road.

Hunter further stated that, because certain areas of the parking lot were in good condition, he was requested by defendant’s president, Thompkins, to take some of the asphalt intended for those areas and use it on a back access road which had been worn down by heavy delivery trucks. When this was done, asphalt placed on the access road was four or five inches thick in places.

According to Hunter, Thompkins was leaving town a day or so before the job was completed and offered at that time to pay him the contract price. Hunter refused to accept the payment, suggesting that Thompkins wait until the job was completed.

Hunter testified that he inspected the parking lot on the morning of the trial and found it was “holding up real good, was real serviceable...”

Mukesh Patel, a certified asphalt concrete technician employed by a Shreveport engineering laboratory, testified that at plaintiff’s request he took from defendant’s parking lot (including both old and new) a core sample of asphalt which tested 2V4 inches in thickness. Patel explained that the generally accepted method in the asphalt business for determining whether the required amount of asphalt has been applied is by use of a total tonnage criterion because:

“... when you overlay any kind of existing surface, and if they call for an inch and a half or two inch you are not going to have an inch and a half all the way down every place of the parking lot, because you have already got the existing surface, and you have to follow your contour and level it ... so when you overlay that’s why it doesn’t come out an inch and a half all the time...”

Defendant’s president, Thompkins, testified that during the course of the asphalt work he discussed with Hunter certain deficiencies in the work, such as areas that were not level and loose rocks. Hunter allegedly replied that these problems would be resolved once “traffic gets on it and the sun hits it... ” Thompkins admitted offering to pay Hunter on the last day of the project because he was leaving town on vacation, but Hunter told him “not worry about it because they were not through.”

Thompkins stated that, upon returning from his vacation, he noticed big rocks coming up in the parking lot; areas around light poles that had not been compacted; and other areas that did not have a sufficient layer of asphalt. When he complained about these problems to plaintiff’s president, the latter sent a crew to sweep the lot but this “just compounded the problem because when the rocks were swept off it just left holes.” Thompkins then retained an engineering firm to test the thickness of the asphalt layer applied to his parking lot by plaintiff.

Thompkins conceded that the parking lot overlaid by plaintiff had been used by his customers seven days a week during the period between June, 1980 and February 12, 1981, the date of the trial. There was no evidence that defendant had any remedial work done to the parking lot. The record contains no photographs depicting the condition of the parking lot surface either after purported completion of the job or at the time of the trial.

Willis Brown, an officer of B.S.T. Testing, an engineering firm, stated that his firm was retained by defendant to obtain random core samples of asphalt from its grocery store parking lot to determine the thickness of the asphalt layer applied by plaintiff. According to Brown, the firm took eleven core samples which, upon testing, revealed an average thickness' of 1.36 inches. The following pertinent colloquy took place between plaintiff’s counsel and Brown:

“Q. And, of course, as it clearly reflects some were somewhat less than average and some were somewhat greater than average, is that right?
A. Yes, sir.
Q. Would you agree that if we went out today and took eleven different core samples in eleven different spots from the ones which you extracted the samples, it is very likely that we would come up with a different average than you got, is that correct?
A. Yes, sir.
Q. As a matter of fact you could run a great many tests and come up with different results every time, is that right?
A. Right.”

William Bryant, who had been in the asphalt paving business a number of years, was called to testify by defendant. Bryant stated that he examined the parking lot in question at the request of plaintiff’s president. He found “a little bit of ravelling in two or three of the joints out front with some rocks showing.” His general assessment of the job was that “it wasn’t real bad and it wasn’t real good, I mean, it still needed a little touch up done to it.” Based upon a common industrywide use of 110 pounds of asphalt per square inch, Bryant calculated that roughly 456 tons of asphalt should have adequately covered the area involved here.

Bryant had told Thompkins that he would charge around $11,000 to bring the job up to his expectations. Bryant explained at the trial that “these figures were all verbal and off the top of our heads and so forth for a repair of the rough edge that we saw that day and a seal coat over the entire parking lot... ” It was conceded that seal coating was not in plaintiff’s contract.

Queried concerning the variance in thickness found in the random core samples of the asphalt on the parking lot, Bryant expounded:

“Well, this would be due grade. This is normal on an overlay parking lot. It says here an inch and a half, but it should have been written out maybe as an average of an inch and a half, because you have a lot that is already there and sunk and wavy and what have you, it is not going to be true to grade, and then when you come in and overlay it with a machine it carries a true plane and when it goes across the top of a bump here it will be thinner here than it will be on the other side of that bump, and all over that lot you liable to find some places out there that has two inches and some places an inch you know.”

Leland Carter, an expert in the asphalt construction business employed by a Shreveport engineering firm, at Thompkins’ request examined the B.S.T. Testing report and visually inspected the parking lot. He testified that “there were several joints that looked like they were in exceedingly bad shape and they would have to be either cut out and there were some areas that would need to be patched, and certain areas probably needed an additional overlay on it.”

Questioned concerning the cost of remedial work, Carter replied that he gave Thompkins a “ballpark figure” because “probably the cheapest way to bring that remedial measure wquld be a complete overlay of the lot which would run about $19,000.” This recommendation was verbal, Carter explained, because they “just talked more or less in general terms.”

Our review of the record leads us to the conclusion that the trial judge was not clearly wrong in the fact-finding that plaintiff had substantially performed the contract. As explained by Patel and Bryant, and admitted by Brown, the testing of core samples revealing an average asphalt thickness of .14 inch less than the stipulated IV2 thickness did not in itself represent a defect in view of the impossibility of achieving a uniform thickness when overlaying an existing surface. On the other hand, the evidence was unrefuted that plaintiff exceeded the accepted industry formula in applying the tonnage of asphalt generally recognized as necessary to overlay the area in question to a thickness of IV2 inches.

Repair of the two or three loose joints appeared to require only minor remedial work. Use of the parking lot by defendant’s customers for some seven months between plaintiff’s purported completion of its work and the trial date indicated rather conclusively that the purpose of the contract was accomplished to the manifest benefit of defendant.

Finding that there was substantial performance of the contract by plaintiff, the next question is whether defendant proved the existence of defects or omissions and, if so, proved the cost of correcting the defects or completing the unfinished work. As previously noted, defects in the job appeared to consist of several joints which were unravelling and some loose rocks. However, we agree with the trial judge that defendant did not prove with the required exactness the cost of repairing these defects. Carter’s “ballpark” figure of $19,-000 obviously contemplated a virtual redoing of the entire project — the necessity of which was ruled out by the preliminary finding of substantial performance. On the other hand, Bryant’s “off the top of the head” estimate of $11,000 included seal coating which was not required by plaintiff’s contract.

Contrary to appellant’s argument, this evidence was insufficient, not because it involved “estimates”, but because it did not purport to directly address with any degree of precision the nature of the work contemplated to correct, the proven deficiencies.

In summary, defendant did not discharge its burden of proving the sum by which plaintiff’s recovery of the contract price should be reduced. Therefore, the trial judge was correct in holding that plaintiff was entitled to recover the full contract price.

This disposition of the foregoing legal issues pretermits the necessity of our considering the correctness of the trial judge’s alternative finding that defendant was barred from recovery for cost of curing the defects (even if proved) because it accepted the work performed under the contract.

For the reasons set forth, we affirm the judgment of the district court, at appellant’s cost.

      . Art. 2756.
      To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.

      . Art. 2769.
      If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.


author: FORET, Judge.

text:
    Wilbert ELIE, Jr., Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Defendant-Appellee.
    No. 8552.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Kramer, Laird & Hammill, Bernard Kramer, Alexandria, for plaintiff-appellant.
    Provosty, Sadler & deLaunay, Albin A. Provosty, Alexandria, for defendant-appel-lee.

      Before FORET, SWIFT and LABORDE, JJ.
   FORET, Judge.

Wilbert Elie, Jr. brought this workmen’s compensation action asserting that he is totally and permanently disabled and claiming benefits therefor. He alleged that his disability resulted from personal injuries suffered in an accident arising out of and in the course of his employment. Appellant’s employer at the time of the accident, Avo-yelles Wholesale Grocery Company, Ltd. (Avoyelles), and its workmen’s compensation insurer, St. Paul Fire & Marine Insurance Company (St. Paul) were named defendants. Defendants sought a credit against any award of future compensation payments in an amount equal to any past compensation they may have paid to appellant, which was not due.

The trial court denied appellant’s claim and he appeals from that judgment. The sole issue is whether the trial court erred in finding that appellant had recovered from his injuries and was no longer disabled.

FACTS

This action arises out of an accident which occurred on July 14,1980, in Rapides Parish, Louisiana. Appellant was employed as a truck driver by Avoyelles and he and a helper were making a delivery of produce to one of Avoyelles’ customers. Plaintiff alleges that he sustained an injury to his lower back while attempting to realign the rear door of his truck. He reported the accident to his supervisor after completing his run.

Plaintiff was directed to see Dr. Palmer Texada, which he did the next day. Dr. Texada examined and found him to be suffering from a moderate strain of the right infra-scapula and paravertebral muscles. Dr. Texada advised him to rest and told him that he could return to light work in four to five days. He returned to work on July 24, 1980 and was terminated on August 6,1980, for reasons unrelated to the accident. Thereafter, appellant’s attorney referred him to a chiropractor and two medical doctors for evaluation and treatment.

St. Paul paid appellant compensation benefits of $103.00 per week from the date of the accident until December 8, 1980 and his medical expenses. Appellant instituted this action on December 23, 1980 alleging that he is totally and permanently disabled as a result of injuries suffered in the accident and that he is entitled to 66%% of his weekly wages as disability benefits. He further alleged that defendants had failed to pay him the maximum benefits to which he was entitled and, thereafter, terminated payment of his benefits despite proof and notice of his disability. Appellant sought the statutory penalty of 12% of all amounts due him, together with attorney’s fees, because of defendants’ actions.

APPELLANT’S ALLEGED DISABILITY

Plaintiff contends that he is totally and permanently disabled as defined by LSA-R.S. 23:1221(2). Thus, the issue is whether he is unable “to engage in any gainful occupation for wages” within the meaning of LSA-R.S. 23:1221(2), supra.

In determining whether an employee is permanently and totally disabled, it is not a prerequisite that he be absolutely helpless. If the evidence of his physical impairment and of other such factors as his mental capacity, education and training indicates that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist, the injured employee is entitled to total disability compensation unless the employer or his insurer is able to show that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to his residence. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980).

The claimant has the burden of proving to a legal certainty and by a reasonable preponderance of the evidence that he is disabled. Guidry v. Ford, Bacon & Davis Construction Corp., 376 So.2d 352 (La.App. 3 Cir. 1979); Soileau v. Bituminous Casualty Corporation, 348 So.2d 1313 (La.App. 3 Cir. 1977); Hamilton v. Georgia Pacific Corp., 344 So.2d 400 (La.App. 1 Cir. 1977). The issue of whether or not he has carried this burden must be determined by examining the totality of the evidence, including both lay and medical testimony. Guidry v. Ford, Bacon & Davis Const. Corp., supra; Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977).

The evidence concerning appellant’s alleged disability consisted of his testimony and the testimony of certain members of his family, together with the testimony of his supervisor at Avoyelles. Also, the reports of Dr. Texada and Dr. Edward A. Norton, together with the deposition of Dr. John T. Weiss, were introduced in evidence.

Appellant is 36 years old and completed high school. He has worked as a painter, cement finisher and truck driver. He testified that he had no problems with his back prior to the accident. He stayed away from work for about one week after the accident and then returned to Avoyelles doing the same work he had done before. He claimed that his back hurt when he returned to work, but he admitted that he did not mention this to his supervisor, as required by company policy.

After being fired, appellant consulted with an attorney who referred him to R. A. Boisvert, a chiropractor, for treatment. He saw Boisvert five or six times and described the treatment given him as only aggravating his suffering.

Appellant testified that he tried to do some house painting after the accident but quit fearing that he would further injure his back. He also tried to do some cement finishing, but worked only one morning because his back and leg hurt. He admitted that since he had last seen Dr. Weiss on January 28,1981 (approximately 2V2 months before trial), he had not been to any other doctor nor had he been told to return for further treatment by any of the doctors he had seen.

Appellant’s parents testified that they knew of no problems he had with his back prior to the accident. His father stated that he did not see him very often. His parents had no personal knowledge of any attempts made by appellant to return to work after the accident. Appellant was living with Ida Nelson at the time of the accident, and she testified that he complained of pain in his back after the accident and when he returned to work. She too stated that chiropractic treatments received by appellant only made his back worse. She had no personal knowledge of any attempt made by him to return to work.

Dr. Texada’s report stated that appellant would be able to resume light work within four to five days after the date of the report, which was July 17,1980. The report further stated that he suffered no permanent disability from the accident.

Dr. Norton’s report is dated November 26, 1980. It relates Dr. Norton’s findings after having treated appellant and concludes with the following:

“COURSE OF TREATMENT: The patient was seen in the office at regular intervals during which time he received medco sonlator treatment to his right shoulder and lower back and left hip area along with muscle relaxants, analgesics and cortico steroid injections. Under this treatment, his complaints improved sufficiently to be controlled with simple analgesics, and he was discharged as having received maximum medical benefit on 11/28/80. It is my belief that there will be no permanent or residual disability as a result of this injury.
DIAGNOSIS: 1) Acute Thoracic and lumbo sacral strain 2) Contusion, right shoulder.”
(Emphasis provided.)

Dr. Weiss first saw appellant on October 1, 1980, approximately three months after the accident. Appellant related the facts surrounding the accident to him. However, he told Dr. Weiss that he tried to return to work, but worked only two or three days and was released from work. In fact, he had returned to work for two weeks before being released. Appellant stated to Dr. Weiss that he continued to experience some pain in his lower back and left leg. Dr. Weiss examined him and felt that he might have disc pathology. Dr. Weiss recommended a myelogram and scheduled it for October 14, 1980. However, appellant failed to report for the test at the time scheduled.

Dr. Weiss did not see appellant again until January 13, 1981, when a myelogram was performed. The results of that test were normal. Dr. Weiss had a number of other tests run, the results of which were also normal. Dr. Weiss last saw appellant on January 28, 1981, at which time appellant told him that he was no longer having any problems with his leg, but he did complain of a little discomfort in the low back area on extremes of flexion and extension. A neurological examination was essentially negative. Dr. Weiss felt that appellant had “improved quite a lot” since his last examination in October, 1980. However, Dr. Weiss recommended that appellant find employment in a job that would not require heavy lifting. His recommendation was based on the fact that appellant “was not real heavy built or extremely muscular”.

Dr. Weiss opined that appellant had been suffering from a degenerative condition in his back connected with the normal aging processes. He felt that the accident may have aggravated this condition to a certain extent. However, he admitted that this was nothing more than speculation and that his opinion was based solely on the subjective complaints related to him by appellant. Finally, Dr. Weiss stated that he could find no true orthopedic abnormality, and he released appellant for full work.

Our review of the record convinces us that the trial court correctly found that appellant’s disability ceased no later than January 28, Í981.

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

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . Appellant was terminated because he had driven one of the trucks in such a manner that its engine was ruined.

      . The record is unclear as to the exact date on which appellant’s workmen’s compensation benefits were terminated. Defendants, in their answer, aver that appellant’s benefits were terminated on December 8, 1980. However, the trial court, in its reasons for judgment, states that appellant’s benefits were terminated on January 28, 1981.

      . LSA-R.S. 23:1221(2) provides:
      “(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

      . See Footnote 2, supra.


author: LABORDE, Judge.

text:
    Monty D. DARBONNE, Admr., etc., Plaintiffs-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al., Defendants-Appellants.
    No. 8562.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Fruge & Vidrine, Christopher B. Fruge, Ville Platte, for defendants-appellants.
    Brinkhaus, Dauzat & Falgoust, Jimmy L. Dauzat, Opelousas, McBride & Foret, Glynn Rozas, Lafayette, for defendant-appellee.
    Steven Broussard, Lake Charles, Glen A. James, Sulphur, for plaintiffs-appellees.
    Before FORET, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

This is one of two cases which were consolidated for trial. We render a separate opinion in the companion case on this date.

These consolidated suits for damages for personal injuries arise out of an intersec-tional collision near the town of Eunice in St. Landry Parish, Louisiana, between an automobile being driven by Monty Dar-bonne and an automobile being driven by Velma Vidrine.

On the morning of April 7, 1977, at approximately 8:00 A.M., Monty Darbonne was driving his father-in-law’s automobile north along Eighth Street approaching that street’s intersection with Louisiana Highway 13. Monty’s passengers included his wife, Peggy; their four minor children: Rodney, Keith, Terry and Vivian; Monty’s half brother, James Bertrand; and Peggy’s brother, Lawrence Boudreaux, Jr. At the time of the accident, both James and Lawrence were also minors.

Eighth Street is a blacktop, two lane road which runs generally in a north-south direction. Louisiana 13 is a major highway that also runs roughly in a north-south direction. When Louisiana 13 reaches Eighth Street, it begins to curve at approximately a 70 to 90 degree angle to the east. Eighth Street and Louisiana 13 form a “T” intersection near the midpoint of this curve with Louisiana 13 being the favored highway. Traffic proceeding from Eighth Street onto Louisiana 13 is controlled by a stop sign.

The accident occurred when Monty failed to observe the stop sign on Eighth Street at its intersection with Louisiana 13, and continued on in a northerly direction, colliding with the automobile being driven by Velma Vidrine. Mrs. Vidrine, who was headed in a southerly direction, was in the process of negotiating the curve on Louisiana 13 when the collision occurred. She was traveling alone in her automobile.

All occupants of both vehicles were injured in the accident.

As a result of this accident, two separate lawsuits were filed and later consolidated for trial. In one, Monty and his wife Peggy sued Velma Vidrine, the City of Eunice, the St. Landry Parish Police Jury (Police Jury), and the Department of Transportation and Development (Department) for their personal injuries and for damages to the community existing between them.

In the other suit, Monty, as administrator of the estate of his minor children and as tutor of his minor half brother, sought damages for the personal injuries of these minors. He was joined by Lawrence Bou-dreaux, Sr., as administrator of his minor child’s estate seeking damages for the child’s personal injuries and recovery of medical expenses. Made defendants in this second suit were Monty Darbonne; the insurer of the automobile Monty was driving, State Farm Mutual Automobile Insurance Company (State Farm); Velma Vidrine; the City of Eunice; the St. Landry Parish Police Jury and its insurer, Travelers Insurance Company (Travelers); and the Department of Transportation and Development.

Prior to trial on the merits, the claims against the City of Eunice were dismissed by summary judgment. The basis for the ruling was that the intersection in question was beyond the City’s corporate limits. No appeal was taken from this judgment.

Also prior to trial, the claims against Monty, filed by him on behalf of his minor children, were dismissed by a judgment sustaining an exception of no right or cause of action. No appeal was taken from this judgment.

The case proceeded to trial on the merits, following which all claims against Velma Vidrine were dismissed. No appeal was taken from this judgment.

In its written reasons for judgment, the trial court concluded that the intersection and its approaches were hazardous, holding the Police Jury, Travelers, and the Department liable therefor. The trial court further held that Monty was guilty of contributory negligence which barred his recovery and made him liable in solido to his half brother and brother-in-law who were guest passengers in the car he was driving. As to Peggy, the court held that inasmuch as she had executed an unrestricted release in settling her claims, she was precluded from further recovery against the remaining defendants. As to the claims of the minors, the trial judge awarded them damages holding State Farm, the Police Jury, Travelers, and the Department liable in solido but restricting each minor’s recovery against State Farm to a pro-rated share of the $31.71 which remained unpaid under State Farm’s policy.

Lawrence Boudreaux, Sr. was awarded $857.40 against Monty, State Farm, the Police Jury, Travelers, and the Department.

Finally, as to the various third party claims, the trial court held that the Department was entitled to contribution from Monty, the Police Jury, and Travelers.

From this judgment, the Police Jury, Travelers, and the Department appealed contesting liability and quantum. The individual plaintiffs in both lawsuits answered the appeal.

The issues presented by this appeal concern the liability of the Police Jury, the liability of the Department, the negligence of Monty Darbonne, the excessiveness of damages awarded, and the frivolity of the appeal taken by the Department.

DUTY OF THE POLICE JURY AND THE DEPARTMENT

The trial court in its written reasons for judgment concluded:

“That the intersection and its approaches were hazardous to such an extent that the public entities responsible therefor are liable. That the responsibility of both the parish and the state for the maintenance of the intersection and its 8th Street approach was so intertwined as to render both liable as substantive causative factors.”

This brings us to the crucial question of whether the lower court was clearly wrong in its conclusions.

As we examine the facts, we must keep in mind the extent of the obligations imposed by law upon the Police Jury and upon the Department in the performance of the duties of each to maintain the highways in a reasonably safe condition.

The Police Jury, in maintaining a public rural road system, has a duty to maintain the roads and traffic signs in a reasonably safe condition and to warn motorists of unusually perilous conditions such as improperly marked intersections. LSA-R.S. 32:235; Wall v. American Employers Insurance Company, 215 So.2d 913 (La.App. 1st Cir. 1968), writ refused, 253 La. 325, 217 So.2d 415 (1969); Vervik v. State, Department of Highways, 302 So.2d 895 (La.1974); Andrus v. Police Jury of Parish of Lafayette, 303 So.2d 824 (La.App. 3rd Cir. 1975). To hold the Police Jury liable for breach of this duty, it must be shown that it had actual or constructive knowledge of the danger and that it failed to correct, or to warn motorists of this danger. Harrison v. State of La., Dept. of Highways, 375 So.2d 169 (La.App. 2d Cir. 1979).

The Department has a similar duty succinctly stated by this court in the case of Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3rd Cir. 1975) as follows:

“The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.” (Citations omitted)

We first consider whether the intersection at issue, with its uncommon, although not unique design and signing, is reasonably safe for persons exercising ordinary care and reasonable prudence.

Both Louisiana 13 and Eighth Street run roughly in a north-south direction. Just as these two highways are about to connect, Louisiana 13 curves to the east at approximately a 70 to 90 degree angle and continues on. At the same time, the throat of Eighth Street widens out and flares to the east until it abuts Louisiana 13 forming a “T” intersection. At this point, Eighth Street terminates. The “T” intersection occurs at an angle in the curve of Louisiana 13 and to the east of both highways. Louisiana 13 is the favored highway and traffic entering it from Eighth Street is controlled by a stop sign. To guide north bound traffic from Eighth Street to the stop sign controlling its intersection with Louisiana 13, double yellow lines are used. The neutral ground in this widened throat area is painted white.

The layout of the intersection is odd or unusual in that as the throat of Eighth Street is widened, its left lane actually connects with Louisiana 13 and in fact,- traffic proceeding south on Louisiana 13 will wind up on Eighth Street unless the driver steers his vehicle to the east in order to negotiate Louisiana 13’s curve.

The problem — revealed by the photographs of the intersection introduced into evidence and highlighted by testimony of state troopers familiar with the intersection, by expert testimony and by testimony elicited from persons living near the intersection — is that an unfamiliar driver proceeding north on Eighth Street is lured into believing that that highway merely continues on notwithstanding the fact that it ends at the intended intersection positioned to the east. The following factors further aggravate or at least complicate matters for the unfamiliar driver. Because the intended intersection is positioned to the east of Eighth Street’s north-south course, the stop sign located at the intersection is visible to the driver only if he veers to the east. Stated another way, if the driver continues straight ahead as he perceives Eighth Street continues, he will never see the stop sign. In addition, the approach from Eighth Street to the intersection lacks a stop ahead sign, or a sign indicating its junction with Louisiana 13, both of which are mentioned in the highway manuel. Also the neutral ground in the throat area, although it is painted, is not raised, signed or reflectorized. The result is that it serves as a minimal aid or channelizing device in guiding the driver to the intersection and keeping him out of this neutral area.

We find the record adequately supports the trial court’s conclusion that the intersection and its approaches were hazardous.

LIABILITY OF THE POLICE JURY AND THE DEPARTMENT

Our next inquiry is who is responsible for the maintenance of this intersection and its Eighth Street approach. The trial court, after finding that the maintenance responsibility of the Police Jury and of the Department was intertwined, held both entities liable.

At the trial all parties agree that either a city, a parish, or the State is responsible for highways in Louisiana. The City of Eunice is out, the trial court having granted its motion for summary judgment. Thus, either the Police Jury, or the Department, or both are responsible for these highways.

On appeal, the Police Jury argues that the design, maintenance and control of the intersection and its Eighth Street approach was the responsibility of the Department. In support of its argument, the Police Jury introduced its maintenance records in an effort to show that it did not perform any maintenance work whatsoever on Eighth Street. The Police Jury further contends that anytime maintenance work was needed — it was performed by the Department. In addition, the secretary of the police jury and one of its police jurors testified that Eighth Street was not delineated as a parish roadway on its map of roadways.

Upon our review of the evidence, it reveals that the maintenance records relied upon by the Police Jury were not thoroughly kept until 1979 and that prior to that time, they do not adequately indicate and reflect maintenance work performed by it. The accident occurred in 1977. In addition, the record reveals that although maintenance work on Eighth Street was performed by the Department, it was done so at the request of other political entities. It was also admitted at trial that the map of roadways of St. Landry Parish included parish roads as designated by the Police Jury leaving open the possibility for the trial judge to view this exhibit as self-serving in nature.

Upon our review, we find a reasonable evidentiary basis to support the trial court’s conclusion that the Police Jury was responsible for Eighth Street.

The department concedes that the intersection, as part of Louisiana 13, once was its responsibility but argues that in 1976, prior to the accident, it abandoned this section of that highway. The Department also argues alternatively that if the intersection is unreasonably hazardous, it is due to improper signing of Eighth Street which is under the responsibility of the Police Jury.

In reviewing the record, we find that the abandonment referred to by the Department was ineffective because it was improper in form. In any event, the Department continued to maintain that section until late 1978 or early 1979 and thus was maintaining it at the time of the accident. There is an abundance of evidence showing that the Department had control of the design, signing and marking of this intersection leaving little doubt that its maintenance responsibility was that of the Department’s.

Upon our review, we find a reasonable evidentiary basis to support not only the trial court’s conclusion that the Department was responsible for maintenance of the intersection but also its conclusion that the responsibility of both the parish and the state for the maintenance of the intersection and its Eighth Street approach was so intertwined as to render both liable.

To hold these entities liable, it must be shown that they had knowledge, either actual or constructive, of this hazardous condition. The record shows that similar accidents resulting from poor stop-sign observance had occurred at this intersection and that the accident reports compiled as a result were filed with the Department. Also, because of the frequency of accidents, studies of the intersection were performed and filed with authorities of the Department. Further, Murphy Richard, a police juror, testified that he received several complaints from local residents concerned about the intersection’s hazardous condition.

We find the record adequately establishes the Police Jury’s and the Department’s knowledge of these hazardous conditions.

The arguments by these entities that they should not be held liable lack merit.

MONTY DARBONNE’S CONTRIBUTORY NEGLIGENCE

The law is clear regarding the responsibility of a motorist. He is under a duty to act as a reasonable and prudent person would under the circumstances. As part of this duty, he is charged with keeping a proper lookout, seeing what he should see, maintaining proper control of his vehicle and observing traffic signs.

The question of whether Monty was contributorily negligent is close. On one hand, there is evidence showing that this was the first time Monty had traveled Eighth Street and encountered its intersection with Louisiana 18. In addition, the record shows that these painted yellow lines and white areas guiding his way were somewhat faded and worn.

On the other hand; it was a clear, dry day and the markings, though faded, were still visible. Several persons testified that if these visible markings were followed, the motorist would arrive at the intended intersection from where the stop sign was clearly visible. Monty testified that had he seen the double yellow lines, he would not have traveled across them, he simply did not observe them, or the painted neutral ground, or the stop sign.

Under these circumstances, we cannot say that the trial court manifestly erred in finding Monty to be contributorily negligent. We further find that his negligence was a substantive cause-in-fact and agree that it bars his recovery.

STRICT LIABILITY

By way of supplemental brief, plaintiffs argue that under LSA-C.C. art. 2317, the Police Jury and the Department are strictly liable to them and further that the defense of contributory negligence is no bar to this recovery.

We disagree. Without elaborating on the plaintiffs’ right to recover under Article 2317, we simply note that one of the defenses to recovery thereunder is “victim fault” which has been equated to contributory negligence. Wilkinson v. Hartford Accident & Indemnity Co., 400 So.2d 705 (La.App. 3rd Cir. 1981); Edwards v. State, Department of Transportation & Development, 403 So.2d 109 (La.App. 3rd Cir. 1981), LeBlanc v. State, Dept. of Hwys., 405 So.2d 635 (La.App. 3rd Cir. 1981). Thus, we hold that Monty’s conduct amounting to contributory negligence also amounts to “victim fault” barring his recovery under Article 2317. '

EXCESSIVE DAMAGES

There were six minor passengers in the Darbonne vehicle. The trial court awarded general damages to each. (See Footnote 2) On appeal, the Department contends that there is insufficient evidence in the record upon which to base any general damage award and further that the awards are excessive. We disagree.

In addition to the testimony of Monty and Peggy Darbonne regarding the injuries of the minors, the trial court also had before it the medical reports of' their treating physicians and the hospital records concerning them. Viewed together, these provided a sufficient basis upon which general damage awards could be assessed.

It is well settled that in making its award, the trial court is granted “.much discretion” and that on appeal, that award will not be disturbed unless the record clearly reveals that the trier of fact abused its much discretion. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

We have reviewed the evidence relating to the amount of damages assessed by the trial court and conclude that the Department’s argument of excessiveness is with-, out merit.

FRIVOLOUS APPEAL

Plaintiffs answered the appeal requesting damages and attorney’s fees from the Police Jury and from the Department for a frivolous appeal pursuant to LSA-C.C.P. art. 2164. By way of brief, plaintiffs concede that the Police Jury’s appeal was not frivolous but still maintain that the Department’s appeal was.

Under the jurisprudence construing art. 2164, we see no basis for finding that the appeal taken by the Department was frivolous. Damages and attorney’s fees are denied.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs in the amount of $1739.40 are assessed one half to the St. Landry Parish Police Jury and one half to the Department of Transportation and Development.

AFFIRMED.

APPENDIX

      . The companion case is Monty D. Darbonne, et al v. Department of Transportation and Development, et al, 408 So.2d 309 (La.App. 3rd Cir. 1981).

      . A drawing of this intersection is appended to this opinion.

      . State Farm had $20,000.00 in coverage and had practically exhausted these limits by virtue of payments made to Velma Vidrine, Peggy Darbonne, and the minors. The trial court held that the settlements effected by State Farm with the minors were not binding since they were not court approved but the amounts received by them were nonetheless allowed as a credit to the remaining defendants in the judgment against them. The amounts ultimately awarded each minor, after subtracting these credits from the initial awards are listed below:
      INITIAL AWARD LESS CREDIT FINAL AWARD
      Keith Darbonne $10,000.00 $973.50 $9,026.50
      Rodney Darbonne 4,500.00 604.65 3.895.35
      Terry Darbonne 2,500.00 211.64 2.288.36
      Vivian Darbonne 3,000.00 177.50 2,822.50
      James Bertrand 7,762.82 688.25 7,074.57
      Lawrence Boudreaux, Jr. 5,500.00 320.00 5,180.00

       The trial court awarded Vivian $2,850.50, incorrectly substracting the credit from the initial award. This mathematical error is corrected on appeal in discharge of our duty of doing justice on the record. LSA-C.C.P. art. 2164.


text:
    Monty D. DARBONNE, et al., Plaintiffs-Appellees, v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al., Defendants-Appellants.
    No. 8561.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Writ Denied March 19, 1982.
    Fruge & Vidrine, Christopher B. Fruge, Ville Platte, for defendants-appellants.
    Brinkhaus, Dauzat & Falgoust, Jimmy L. Dauzat, Opelousas, McBride & Foret, Glynn Rozas, Lafayette, for defendant-appellee.
    Steven Broussard, Lake Charles, Glen A. James, Sulphur, for plaintiffs-appellees.
    Before FORET, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

For the reasons stated in the companion case of Monty D. Darbonne, Admr., etc. v. State Farm Mutual Automobile Insurance Co., et al., 408 So.2d 300, (La.App. 3rd Cir. 1981), in which a separate decision is being rendered by us this date, the judgment of the district court in the present case is affirmed.

AFFIRMED.


author: STOKER, Judge. PER CURIAM.

text:
    Douglas JOLIVETTE, Plaintiff-Appellant, v. CITY OF LAFAYETTE, Dallas Courville & Todd Courville, Maryland Casualty Co. & Houston General Insurance Company, Defendants-Appellees.
    No. 8572.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.

      Simon & Dauterive, J. Minos Simon, Lafayette, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, Kenneth M. Henke and St. Paul Bourgeois, IV, Mouton, Roy, Carmouche, Bivens & Kraft, Harmon F. Roy, Lafayette, for defendants-appellees.
    Before CULPEPPER, CUTRER and STOKER, J.
   STOKER, Judge.

This suit for damages in tort arose out of a tragic accident which occurred on June 9, 1979. On that day the plaintiff-appellant Douglas Jolivette dove from a high diving board at a public pool owned and operated by the defendant-appellee, the City of Lafayette. The plaintiff struck another swimmer who had jumped before him from the same diving board. As a result of this collision, the plaintiff sustained injuries to his neck which rendered him a paraplegic. Todd Courville, a minor and one of two lifeguards assigned to watch the diving section of the pool at the time of the accident, was joined as a defendant as was his father, Dallas Courville. Also joined as defendants were Maryland Casualty Company and Houston General Insurance Company, liability insurers for the City of Lafayette.

The issue of liability was bifurcated. The question of the liability of Todd Courville was decided by the jury, and the liability of the City of Lafayette and its insurers was decided by the trial court. The jury returned a verdict finding neither Todd Cour-ville nor any other employee of the City of Lafayette guilty of negligence that was a cause-in-fact of the accident. The trial court found that the City of Lafayette was not negligent and therefore was not liable for the plaintiff’s injuries.

Plaintiff in this appeal assigns three errors in the trial court’s decision:

1. The verdict and judgment of the District Court are contrary to the law and the evidence.

2. The District Court failed to give proper instructions to the jury.

3. The District Court failed to apply the last clear chance doctrine.

These three assignments of error are closely interrelated and will be discussed below.

WAS THE VERDICT AND JUDGMENT CONTRARY TO THE EVIDENCE?

To substantiate his first assignment of error, the plaintiff reviews at length the testimony elicited at trial with special emphasis on the facts he attempted to establish in that proceeding. It should be noted at this point that the evidence at trial supports two versions of facts critical to the plaintiff’s recovery. The version supported by the plaintiff’s testimony is that he made a normal forward dive and landed three to five feet in front of the diving board. At this point the plaintiff struck the swimmer who had jumped from the board immediately prior to the dive. The defendant’s version of the facts, supported by testimony from Pam Domingue (who was the other lifeguard besides Todd Courville assigned to watch the diving area of the pool at the time of the accident), is that the swimmer who was struck by the plaintiff in his dive was swimming to the ladder on the west side of the pool. According to this testimony, the plaintiff had to dive far to the right of the board for the collision between him and the swimmer to occur.

It is well settled that where there is conflicting testimony, a reasonable evaluation of credibility made by the trier of facts should not be disturbed upon appellate review unless manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In the case before us we find ample evidence to support both the jury verdict and the judgment rendered by the trial court. The trial court in its reasons for judgment notes the conflicting accounts of the accident and finds that “the evidence indicates that Douglas [the plaintiff] dived and landed between 6 to 12 feet to the front and right of the diving board.” The trial court stated that the duty of the City was to protect against injury to swimmers and divers in the normal use of the board, but found that the plaintiff’s diving far to the right constituted an abnormal use of the board for which the City was not liable. The jury apparently reached similar conclusions in its finding that Todd Cour-ville was not negligent.

The evidence to support the finding that the plaintiff dove outside of the area of the pool which users of the high board normally entered consists mainly of testimony from Pam Domingue. She was the roving lifeguard in the diving area at the time of the accident. The high diving board at the Lafayette pool is flanked by two low boards, but at the time of the accident the low board on the west side of the high board had been removed from its mounts and was not in use. Pam Domingue was sitting on one of these mounts immediately prior to the accident. She testified that she observed a swimmer almost directly in front of her position at that time but that the area in front of the high board was clear. She also testified that she saw plaintiff dive far to the right in front of her position; but, knowing the plaintiff to be an experienced diver, she assumed he was in no danger and turned her attention to another area under her care. Seconds later, she became aware of the collision when she heard Todd Courville blow his whistle and dive from his stand to rescue the plaintiff. Although she did not see the actual collision, she later identified the swimmer she had observed swimming to the right as' Dwight Williams. He is the swimmer whom the plaintiff struck. Domingue apparently made the identification by a simple deduction since she had observed only one swimmer in the area of the accident before the collision occurred.

Other evidence was presented at trial to corroborate Domingue’s placement of the site of the accident to the far right of the high diving board. Todd Courville said that he saw the plaintiff 6 to 8 feet to the west of the board when he became aware of the victim’s plight immediately after the accident. Jennifer Sims and Stephen Gotch, both of whom were lifeguards on duty in other areas of the pool at the time of the accident, placed the location of the plaintiff from 9 to 12 feet to the west of the high board. Since the plaintiff had lost all power of locomotion, becoming immediately paralyzed by his collision with Dwight Williams, it is likely that the area in which these witnesses placed the plaintiff was the area of the collision.

No witnesses to the actual collision were produced so the best evidence of the site of the accident is the indirect testimony outlined above. Furthermore, the plaintiff did not examine Dwight Williams at the trial, so there was no testimony from him as to his location when struck by the plaintiff. It is well established in this State that the failure to call a witness who has knowledge of material facts pertinent to the resolution of the litigation gives rise to the presumption that the witness’ testimony would have been unfavorable to the appellant. Morgan v. Matlack, Inc., 366 So.2d 1071 (La.App. 1st Cir. 1979), writ denied, 369 So.2d 1352 (La.1979); Walters v. Coen, 228 La. 931, 84 So.2d 464 (La.1955); Wolfe v. Employers Commercial Union Insurance Company, 272 So.2d 714 (La.App. 3rd Cir. 1973). Dwight Williams had a peculiar knowledge of the pertinent facts in this case, and in view of the fact that he was the plaintiff’s cousin, the plaintiff could have readily obtained his presence for trial. Williams’s testimony if it would have been favorable to the plaintiff would have helped plaintiff meet his burden of proof. Therefore, in the absence of this testimony, and in view of the strong circumstantial evidence placing the site of the accident to the right of the normal diving area and with insubstantial evidence to rebut this finding, we find that the finding of the triers of fact is not clearly wrong.

WAS THE VERDICT AND JUDGMENT OF THE TRIAL COURT CONTRARY TO THE LAW?

The plaintiff urges that the trial court based its ruling on an incorrect legal standard, particularly with reference to liability without fault, and that the instructions to the jury were based on the same incorrect statement of the law. The plaintiff asserts LSA-C.C. art. 2317 as one of the bases for liability of the defendant under the construction given to that article in Loescher v. Parr, 324 So.2d 441 (La.1975). Article 2317 provides for liability for damages caused by a person for whom one is responsible or by a thing in one’s custody. The plaintiff argues both that the City of Lafayette was responsible for the person of Dwight Williams and that the diving board was a thing in the City’s custody.

We find no merit in the plaintiff’s argument that the City of Lafayette was answerable under Article 2317 for damages caused by the actions of Dwight Williams. By the express terms of that article, the liability under Article 2317 is understood to be subject to the modification of the subsequent articles. These modifications are found in Articles 2318 through 2322 and impose liabilities such as those of employers for acts of servants (Article 2320), owners for acts of animals (Article 2321), and parents for acts of their children (Article 2318).-Although counsel for the plaintiff sought to establish at trial that the lifeguards exercised a high degree of control over the person of Dwight Williams and other swimmers under their supervision, we do not find that the relationship between the lifeguards and swimmers is analogous to the strong relationships between those whose acts cause harm and those answerable for those acts under Article 2317.

We likewise find no merit in plaintiff’s argument that the City of Lafayette is responsible for harm caused by the high diving board under Loescher v. Parr, supra. Loescher imposes liability upon one who has custody or care over the thing which causes harm, but only if that thing has a vice or defect which poses an unreasonable risk of harm and the harm incurred resulted from this vice or defect.

The only evidence presented at trial which could be construed to show that the diving board had a “defect” is that the board created a “blind spot” which partially obstructed the diver’s view of the water. We do not feel, however, that this is a vice or defect of the board, but rather it is a condition inherent in all diving boards of which a reasonably prudent diver should be aware and which he should take into account in making his dive properly and safely. No evidence indicated the diving board was unusual or was different from the ordinary diving board customarily found in public swimming pools. Furthermore, the alleged “blind spot” created by the board does not create an unreasonable risk of harm. The defendants presented video tapes at trial which demonstrated that the diver could compensate for the blind spot by inclining his head a few inches to either side of the board and checking to see if the area in front of the board is clear before diving.

In fact, the plaintiff testified at trial that he did not bend over to look at the area underneath the diving board which he refers to as a “blind spot”. As he was climbing the ladder to the high board, the plaintiff actually saw Dwight Williams swimming to the right but he did not check to see if Dwight had cleared the diving area. The plaintiff said that he knew he had to make sure the diver before him was clear of the diving area before he could dive himself but he relied on the lifeguard to clear the area instead.

Since the plaintiff’s action in this case is one in negligence and not in “strict liability” under LSA-C.C. art. 2317 as we have held, the contributory negligence of the plaintiff is a bar to his recovery. Under the circumstances described above, we find ample evidence of the plaintiff’s negligence which also supports the trial court judgment. The trial court, finding that the plaintiff had a duty of determining the safety of diving before doing so, stated that the plaintiff’s failure to do this was an additional bar to his recovery. We agree.

The primary duty of care to ascertain whether or not it is safe to dive falls upon the diver. The lifeguard has a duty to maintain order in the pool for the patrons’ safety and to respond quickly and appropriately to swimmers in danger. See Honeycutt v. City of Monroe, 253 So.2d 597 (La.App. 2nd Cir. 1971) and Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (La.1968). In this case, the two lifeguards assigned to watch the diving area performed their duties non-negligently. Todd Courville was disciplining some rowdy children while glancing back at the diving area when the accident occurred. He responded quickly to rescue the plaintiff upon becoming ¿ware of his plight. His failure to see the accident occurred because he was engaged in the performance of another of his duties at the time. Likewise, Pam Do-mingue did not see the collision because she was scanning another part of the diving area at the time. She had earlier observed Dwight Williams swimming to the right of the high board and reasonably concluded that he posed no threat to the plaintiff.

Furthermore, the plaintiff in this case knew of the danger of diving into an area before checking to see if the area was clear of swimmers, yet failed to take this precaution for his safety, relying instead upon the lifeguards’ duty to keep the diving area clear. Under these circumstances the “contributory negligence” of the plaintiff rises to the level of primary negligence in his failure to provide for his own safety.

The plaintiff makes a final argument that, even if he is found to have been contributorily negligent, he should still be allowed to recover because the lifeguards had the “last clear chance” to prevent the accident. The last clear chance doctrine was designed to allow a plaintiff to recover against a negligent defendant despite his own contributory negligence which ordinarily would operate as a complete bar to his recovery. Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978). Since we have held that the lifeguards were not negligent, the last clear chance doctrine is clearly inapplicable.

The trial court in its reasons for judgment implied that the lifeguards had the primary duty to insure that the diving area was clear before allowing anyone to dive. Even under that formulation of duty, the trial court found that the plaintiff’s dive was not covered by the lifeguards’ duty and the jury found the defendants to be non-negligent.

We find no manifest error in the judgment complained of. Therefore, we affirm the trial court’s ruling. The costs of this appeal are assessed to appellant.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff-appellant’s application for rehearing is denied.

In plaintiff-appellant’s application for rehearing numerous assignments of errors are made on behalf of plaintiff-appellant. Among his assignments plaintiff complains of the adverse presumption applied against him on the ground that plaintiff did not call Dwight Williams as a witness in his behalf. In the application on behalf of plaintiff-appellant the following statement is made:

“The record in this cause demonstrates that Dwight Williams was at the Courthouse under subpoena. The record of this cause further demonstrates that during the course of the trial counsel for both plaintiff and defendants left the Courtroom to make measurements of Dwight Williams’s physical characteristics and returned into Court and entered into a stipulation as to these physical characteristics. Thus, Dwight Williams was equally available to the defendants. In such a circumstance there can be no unfavorable presumption against plaintiff. The rule of law applicable is absolute to the effect that where a witness is equally available, no presumption arises from the failure of either party to present such a witness.”

If one may. conclude from the record that Dwight was at the courthouse during the trial and thus was available to be called as a witness for both sides, then we did err in applying the presumption. We have followed the rule that no inferences or presumptions are to be indulged in for a party’s failure to call an available witness if the witness was equally available to both sides. Rushing v. Insurance Company of North America, 391 So.2d 864, (La.App. 3rd Cir. 1980) and Slocum v. American Casualty Insurance Company, 189 So.2d 299 (La.App. 3rd Cir. 1966). Without re-examining the record on this appeal with reference to this specific point, we have considered our opinion on original hearing and have concluded that our holding can rest on all other reasons given by us without applying the presumption complained of.