text:
    John G. THOMPSON and Faye M. Thompson v. Louis Leonard SICARD, Lurline McMillan Sicard and First of Georgia Underwriters Company.
    No. 13232.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    William. R. Aaron, Baton Route, of counsel, for plaintiffs-appellees, John G. Thompson and Faye M. Thompson.
    Charles A. O’Brien, III, Baton Rouge, of counsel, for defendants-appellants, Louis Leonard Sicard, Lurline McMillan Sicard and First of Georgia Underwriters Co.

      Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

John G. Thompson and Faye M. Thompson, husband and wife, brought suit against Louis L. Sicard and Lurline M. Sicard, husband and wife, and their homeowner’s insurer, First of Georgia Underwriters Company, alleging injuries to Mrs. Thompson resulting from a fall when she tripped over a dog belonging to the Sicards. The trial court awarded Mrs. Thompson $25,000.00 and defendants appealed.

The evidence shows that on the morning of December 7, 1976, Mrs. Thompson put her own dog out for a short time and when she opened her door to let it back in, the Sicard’s dog came in with the Thompson’s dog. (In setting out the facts we refer to the dog in question as the Sicard’s dog although defendants deny ownership.) It was not contended that the dog was dangerous, vicious or had ever harmed anyone — on the contrary, it was a mixed bred German Shepherd-Collie puppy weighing between twenty-five and forty pounds. When Mrs. Thompson commanded the dog to leave, it came to her near the door and rolled over on its back. In an attempt to nudge the dog out with her foot, she fell, injuring her left knee. After getting up, she again tried to nudge the dog out, fell again and injured her right knee. Mrs. Thompson was taken to the hospital where her injuries were diagnosed as an avulsion of both patella tendons. An orthopedic surgeon performed a bilateral patella tendon repair. She remained in the hospital until December 23, 1976 at which time she returned home in full length casts. It might also be noted that Mrs. Thompson was a chronic renal failure patient and had been on dialysis for five years. This added to her problem since she had to be transported to the Baton Rouge Kidney Center three times each week. Mrs. Thompson’s mother came to stay with her on December 9, 1976 until March 11, 1977 to care for plaintiff’s children and do the housework. She testified that her daughter was in severe pain during that period. There was some question as to whether Mrs. Thompson fell forward or backward, but needless to say, the medical report shows the patella regions of both legs were extremely swollen bilaterally and palpation elicited pain.

Appellants contend that there was no showing of ownership of the dog nor proof that the dog in question caused the injury; that the court erroneously applied the doctrine of strict liability; that the court erred in assessing damages for the second injury and that the court erred in refusing to allow defendant the right to re-cross examination of the plaintiff.

In support of appellant’s first contention they cite Leger v. La. Dept. of Wildlife and Fisheries, 306 So.2d 391 (La.App. 3rd Cir. 1974) which involved the question of state ownership of wild deer which damaged plaintiff’s potato crop. The court held that the state owns wild birds and quadrupeds in the sovereign capacity rather than in a proprietary capacity. L.S.A.-C.C. art. 2321 states in part that, “The owner of an animal is answerable for the damage he has caused . . . Jurisprudence has extended this article to include a domestic animal which is actually or constructively under control of or is harbored by the defendant. Tillman v. Cook, 3 So.2d 230 (La. App. Orleans 1941). The absolute wording of C.C. art. 2321 has further been interpreted to be less than absolute and therefore subject to the fault requirements of articles 2315 and 2316 of the Civil Code.

Based upon the record, we have no difficulty in finding that the Sicards harbored the dog in question and are therefore “owners” under C.C. article 2321.

Negligence of the owner is more difficult. The courts have distinguished between keepers of wild as opposed to domestic animals, applying the doctrine of strict and absolute liability to the former while requiring some amount of negligence in cases involving animals “mansuetae natu.-rae”. In the latter classification it has generally been held that the keeper must know or should have known of a dangerous propensity in the animal in question in order to be held liable. In the instant case, there existed no “dangerous propensity” in the dog and the unfortunate injury was caused by the manner in which appellee attempted to remove the dog from her premises. Liability of the owner of an animal for damages to another person is in the nature of strict liability and the owner is presumed to be at fault; however, this presumption may be rebutted by showing the harm was caused by fault of the victim. Normand v. City of New Orleans, 363 So.2d 1220 (La. App. 4th Cir. 1978).

In the instant case, we are of the opinion that Mrs. Thompson was at fault in attempting to remove the dog from her premises in such manner and that as a result she tripped and was injured. This is particularly true in view of her physical condition and doubly so in that she repeated the error and injured herself a second time.

The court was correct in applying strict liability, but erred in holding that the mere presence of the dog caused an unreasonable risk to appellee. In Daniel v. Cambridge Mutual Fire Ins. Co., Andover, Mass., 368 So.2d 810 (La.App. 2nd Cir. 1979), the court stated, “ . . . there is no duty owed by the owner of an animal to one who voluntarily assumes the risk of injury by the animal.”

We are of the opinion that no unreasonable risk was created by the dog and if any risk of any nature existed, Mrs. Thompson voluntarily exposed herself to the danger of tripping over the dog which was more or less motionless on the floor.

For the above reasons, the judgment of the trial court is reversed and plaintiffs’ suit is dismissed, plaintiffs to pay all costs.

REVERSED.

      . Briley v. Mitchell, 238 La. 551, 115 So.2d 851 Noted in 34 Tul.L.Rev. 843 (1960) See also Vredenburg v. Behan, 33 La.Ann. 627 (1881).


source: Caselaw Access Project

author: LEAR, Judge.

license: Public Domain

text:
    Ralph T. THORNHILL, Individually and as Administrator of the Estate of his Minor Son, Allen Arthur Thornhill v. BLACK, SIVALLS & BRYSON, INC., et al.
    No. 13240.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Rehearing Denied June 9, 1980.

      H. Alva Brumfield, III, Emile Rolfs, III, Baton Rouge, of counsel, for plaintiff-appellant, Ralph T. Thornhill, Individually, etc.
    A. Michael Dufilho, Baton Rouge, of counsel, for defendants-appellees, Black, Si-valls & Bryson, Inc., et al.
    Ben Louis Day, Baton Rouge, John Barkley Knight, Jr., Winnsboro, of counsel, for intervenors-appellees, U. S. Fidelity & Guaranty, Co., Inc., Clayton Grain Elevator, Inc., Mayes H. Brister, Larry W. Robinson and William E. Moroni.
    William B. Ragland, Lake Providence, of counsel, for defendants-appellees, Otis C. Raley & Walter Beebe.
    Dermont S. McGlinchey, and J. Michael Johnson, New Orleans, of counsel, for inter-venor-appellee, Screw Conveyor Corp.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This is an appeal from the granting of a summary judgment in favor of defendant-appellee, Screw Conveyor Corporation, who manufactured and sold an auger type conveyor system which was used in the construction of two silos in a grain storage facility.

Allen Thornhill, then a minor, was directed by his employer, Clayton Grain Elevator, Inc., to enter one of the empty silos in order to sweep the residual soy beans into the conveyor.

The screw-type auger conveyor system consisted of a trough recessed into the floor of the silos containing the auger and a cover. The auger would transport the grain through the trough by means of three access openings which could be closed individually. At the time of his injury, plaintiff was walking along the perimeter of the bin dislodging grain from the walls and sweeping same into the auger when he inadvertently stepped into an access opening. This resulted in his left leg being pulled into the trough which later resulted in its amputation.

In written reasons for judgment, the trial court stated, “Mr. Thornhill’s deposition indicates that he was aware that the auger was in operation at the time of his entry into the bin and that he the aware that this was a potential source of injury.” This deposition of Allen Arthur Thornhill, taken April 11, 1979, was also quoted in part in the memorandum in support of defendant’s supplemental motion for summary judgment, but was not filed in evidence and made part of the record sent up on appeal.

Screw Conveyor Corporation sold the conveyor system to the former owner and operator of the silos and did not install the system or make the modifications consisting of the access openings.

The trial court granted summary judgment on the basis that appellee had merely sold component parts of the conveyor system and had no part in the design, installation or construction of the grain elevator. The court further held that the modification of the auger cover was made by the purchaser and appellee had no control over this modification and that inasmuch as the danger was obvious to plaintiff no duty to warn can be imputed to appellee.

There are a number of other defendants involved in this suit; however, this appeal concerns only the granting of summary judgment to Screw Conveyor Corporation.

LSA-C.C.P. 966 provides for summary judgment and reads as follows:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.”

Inasmuch as this is an appeal from the granting of summary judgment, this court must decide whether there exists any genuine issue as to a material fact in the claim against defendant-appellee.

Appellant contends first that the assembled auger consisting of the trough, screw and cover was defective. The trial judge concluded that the modification, consisting of access openings, was not made by appellee and therefore there was no negligence attributable to appellee. We must conclude from the record that the alleged defect did not exist when appellant relinquished control of the device to the purchaser. In view of this we must agree with the trial court.

See Second Restatement of Torts, § 402 A, Comment “G”:

“The rule stated in this Section applies only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.”

Appellee also contends that appellant owed a duty to warn of the danger involved, citing Chappuis v. Sears Roebuck and Co., 358 So.2d 926 (La.1978). In Chap-puis the plaintiff was injured by a defective hammer which he did not know, nor could he be reasonably expected to know, was defective.

One limitation commonly placed upon the duty to warn is that the manufacturer is not liable for dangers known to the user, or obvious to him. (See Prosser, Law of Torts, Pg. 649.) Appellant in his deposition (Pages 49-50) readily admits that the danger was clear.

In Leonard v. Albany Machine and Supply Co., 339 So.2d 458 (La.App., 1st Cir. 1976), this court rejected plaintiff’s contention that defendant owed a duty to warn where the user knew of the danger. In Leonard a sawmill employee was killed when a piece of lumber ejected from a trimmer struck him in the head. The court stated that both the purchasers and users of the trimmer knew of its propensity to throw cutoffs. We must therefore conclude, as did the trial judge, that there are no genuine issues as to material facts.

The judgment of the trial court is affirmed, appellant to pay costs.

AFFIRMED.


author: WATKINS, Judge.

text:
    Nancie MURPHY v. STATE of Louisiana, THROUGH its DEPARTMENT OF EMPLOYMENT SECURITY et al.
    No. 13075.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      William G. Whatley, Baton Rouge, for plaintiff, appellant.
    James A. Piper, Baton Rouge, for State Dept. Emp. Security, defendant, appellee.
    Maurice J. Le Gardeur, Jr., Covington, for Maginnis Oil Company, defendant, ap-pellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a judgment of the district court affirming action of the State of Louisiana Board of Review for the Department of Employment Security denying Nancie Murphy benefits. We reverse.

Mrs. Murphy was originally denied benefits by the Louisiana Department of Employment Security, Bogalusa, for the following stated reason:

“You left your employment of your own accord to repair your house and raise a garden. Your leaving was for personal reasons and without good cause connected with employment.”

Mrs. Murphy appealed to an appeals referee, who denied benefits.

The appeals referee held a hearing, which brought out the following facts, as revealed from the transcript of testimony:

Mrs. Murphy was employed by Maginnis Oil Company from late August 1976 until March 10 or 11, 1977, as a cashier at a self-service gasoline station. Her hours were from 6:00 a. m. until 2:30 p. m. She was the only employee at the station, and, when she entered, she locked the doors behind her. She started receiving obscene telephone calls at the station. She told her supervisor about this, and was offered a job at a new station in Mandeville when it was completed. One call came within a few minutes of the opening of the station in the morning, and the caller described her clothing and her hairdo. She called her husband to come sit with her. The next day the caller said that she would be sorry she had done that, and thereafter the caller repeatedly called her and said it would be only so many more days until they got together. The calls usually came while it was still dark. Finally, someone tried the back door. After working two more weeks, she quit her job. The transcript reveals that although she talked to her supervisor, she never talked to the president of the company, and never requested being put on another shift. Her employer appears to have made an effort to have the telephone number changed, without success.

Under LSA-R.S. 23:1601 (as amended by three acts of 1978) a claimant shall be disqualified for benefits: “(1) If the administrator finds that he has left his employment without good cause connected with his employment . The administrator, as we have stated, found that Mrs. Murphy had left her employment to repair her house and plant a garden; hence, she had left her employment without good cause connected with her employment.

The referee made the following findings of fact:

“The claimant worked for the above employer for approximately 6V2 months as a Cashier at a self-service gasoline station. She earned wages at the rate of $2.45 per hour working from 6:00 a. m. to 2:30 p. m., five days per week. The claimant quit her job because of obscene phone calls she was receiving at the place of business. The claimant had spoken to her supervisor about this who relayed the information to the President of the corporation, John Mcginnis. Mr. Mcginnis contacted the telephone company and had the two pay phones disconnected and asked that the telephone number be changed for the business phone. However, the telephone company did not change the telephone number for the business phone. Mr. Mcginnis testified at the Appeals Hearing that the claimant never contacted him regarding the obscene phone calls, and he was not aware until her claim was filed that this was her reason for leaving.
* * * * * *
The facts and evidence in this case show that the claimant quit her job because she had been receiving obscene phone calls at the place of business. The facts further show, however, that the claimant did not make a reasonable effort to maintain her employment before quitting. She neither requested a change in hours nor did she contact the President of the corporation prior to quitting. Under these circumstances, it must be determined that the claimant’s leaving was without good cause connected with the work.”

Mrs. Murphy applied for review to the Board of Review, Department of Employment Security, which affirmed the referee’s decision without discussing the facts. She then applied to the district court for review, which likewise affirmed, after submission of briefs only. As we have stated, we reverse.

The Board of Review made no independent findings of fact, and simply affirmed the referee’s decision. We will assume that the referee’s findings of fact were incorporated into the decision of the Board of Review, to take the position least favorable to the awarding of benefits.

The scope of judicial review is stated in Benward v. Gerace, 370 So.2d 660 (La.App. 4th Cir. 1979) in the following terms:

“Findings of the Board of Review as to facts are conclusive if supported by sufficient evidence and in the absence of fraud. Louisiana Revised Statute 23:1634.”

(370 So.2d 660, 661, 662)

Also taking this position are many cases, including Cotton Bros. Baking Co. v. Bettevy, 367 So.2d 1274 (La.App.3d Cir., 1979) and Dorsey v. Administrator, 353 So.2d 363 (La.App. 1st Cir., 1977), writ denied 355 So.2d 549 (1978).

We see that the referee found as a matter of fact that Mrs. Murphy left her job because she had been receiving obscene phone calls. He then stated that she did not make a reasonable effort to maintain her employment because she did not request a change in hours or contact the president of the corporation. We hold that the finding that she did not make a reasonable effort to maintain her employment is a conclusion of law, not a finding of fact, and that, in any event, it is unsupported by the evidence. Mrs. Murphy contacted her supervisor, who under normal business procedure, would be the one to contact. She agreed to take a job at Maginnis Oil Company’s Mandeville station, which was being built. It would appear that the next shift would have been even more fraught with danger, as it would have included the evening hours. Accordingly, we hold that Mrs. Murphy did not leave her employment without good cause connected with her employment — she had a very good reason to fear for her physical well-being and to leave— and that she is entitled to benefits.

Under the procedure set forth in LSA-R.S. 23:1634, the case is remanded to the Board of Review with instructions that it enter an order awarding Mrs. Murphy benefits in accordance with the determination made by this Court.

REVERSED AND REMANDED.


text:
    Claude A. FONSECA v. MARLIN MARINE CORPORATION, Alfred Cenac, Jr., and The Home Indemnity Company.
    No. 13158.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Rehearing Denied June 9, 1980.
    J. Nelson Mayer, III, New Orleans, for plaintiff and appellant.

      Philip McMahon, Houma, for defendant and appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action to recover damages in tort, or in the alternative, workmen’s compensation benefits. The trial court rendered judgment for defendants-appellees, dismissing both causes of action. We affirm.

Although other defendants were at first named, the only parties defendant at the time the case was brought to trial were Marlin Marine Corporation, its workmen’s compensation insurer Home Indemnity Company, and Alfred Cenac, Jr.

The testimony reveals that Cenac and some of his friends started building a barn to stable horses. The construction was rather defective; most notably, the pilings leaned. Finally, Cenac, who was president of Marlin Marine, either in his individual capacity or as president of Marlin Marine, hired Claude A. Fonseca, a carpenter, and two of his men, Roger D. Songe and Sidney Bouquet, to finish building the barn. Joists for the ceiling had been nailed in place by the first set of builders. Laid across the joists were cypress planks, which were not nailed down. The weight of the testimony indicates that these planks were put in place by the first set of builders, although the testimony at one place seems to indicate that Fonseca’s set of builders put them in place. In any event, while Fonseoa was standing on the platform or scaffold composed of the unnailed planks, he stepped on the loose end of one that did not extend to the next joist. The plank seesawed, and Fonseca fell to the platform, apparently injuring his back. The present suit is based upon this alleged injury.

Appellant Fonseca’s brief on appeal appears to be restricted solely to the cause of action in tort. However, we will also consider the cause of action for workmen’s compensation benefits.

Plaintiff contends that defendants (whoever are the defendants liable) are held strictly liable for defects in the barn, under the authority of LSA-C.C. art. 2322, which reads as follows:

“The owner of a building is answerable for the damage occasioned by its ■ ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

Strict liability, without the necessity of showing negligence, was found to be imposed upon the owner of a defective structure in Olsen v. Shell Oil Co., 365 So.2d 1285 (La.Sup.Ct. 1979) and Green v. Billa, 86 So.2d 578 (La.App.Orl. 1965).

However, art. 2322 does not apply, and strict liability is not imposed, if a building is in the process of being constructed. In Temple v. Gen. Ins. Co. of America, 306 So.2d 915 (La.App. 1st Cir. 1975), writ refused 310 So.2d 643 (La. 1975), a brickma-son’s helper employed by a subcontractor who was reconstructing a brick wall on an apartment owned by defendant French Provinces Corporation, which had insurance with defendant insurer, was struck by bricks when the wall collapsed. The Court held that liability under C.C. art. 2322 does not exist if the building is in the process of being constructed or repaired. In the present factual situation, construction of the barn was being completed, and, thus, there can be no strict liability. Nor can there be liability in tort under the theory of negligence, as there is no showing that there was anything negligent about the manner in which the scaffold was laid. It was customary not to nail down the scaffold planks, and, unless the planks were cut in precise lengths to fit the joists, which would in itself be dangerous if the planks were to shift to the side, it was necessary that the ends of the planks extend beyond the end of the last joist. Furthermore, Fonseca was a carpenter, and should have known the dangers of standing on such a scaffold, and assumed the risk.

It next must be determined, as we have found there is no tort liability, whether or not Fonseca is entitled to workmen’s compensation benefits. It is not material to our consideration whether Fonseca was employed by Marlin Marine or Cenac, as the barn was being built for Cenac, either in his capacity as president of Marlin Marine or in his individual capacity, to stable horses, which Cenac raised as a hobby. In order for an employee to be entitled to benefits under the workmen’s compensation statute, he must be performing “. . . services arising out of and incidental to his employment in the course of his . employer’s trade, business, or occupation . . ” LSA-R.S. 28:1035. Here, neither Cenac nor Marlin Marine was in the business of raising horses. Rather, Cenac raised horses as a hobby. In Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972), a building owner hired a Mr. Gould to paint a building which it was to rent for commercial uses. Mr. Gould, who could be considered a subcontractor (there was no general contractor) employed plaintiff, who was injured in the course of his employment. Plaintiff sought workmen’s compensation. The Louisiana Supreme Court held that (as a matter of fact) the building owner was in the construction business, although this was the only building it had ever constructed, as well as in the business of renting, and that plaintiff was injured in the course of defendant’s construction business. However, the Court stated that each case rested upon its particular facts, and clearly limited its holding to buildings to be rented or used commercially. As this case is the one most favorable to the awarding of benefits that we can find, and as the building or barn in the present case was not to be rented or used commercially, we hold that workmen’s compensation coverage does not apply.

We, therefore, affirm the decision of the lower court. As the matter was appealed in forma pauperis, no costs are assessed to plaintiff.

AFFIRMED.


text:
    Howard TULL v. CITY OF BATON ROUGE.
    No. 13231.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Rehearing Denied June 9, 1980.

      Dennis R. Whalen, Baton Rouge, for plaintiff-appellant Howard Tull.
    Joseph F. Keogh, Walter G. Monsour, Baton Rouge, for defendant-appellee City of Baton Rouge.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action for 14 days’ overtime pay by a former police officer of the City of Baton Rouge. The City of Baton Rouge filed exceptions of prescription and no cause or right of action. From a judgment of the trial court sustaining the exception of no cause of action, plaintiff appeals. We affirm.

Plaintiff contends that he is entitled to overtime pay under the authority of LSA-R.S. 33:2213 (as amended by La. Act No. 669 of 1976, Sec. 1). That statute reads as follows:

“The maximum hours of work required of any full-time paid patrolman, patrolman first class, sergeant, lieutenant, or captain, or any other employee of the police department, except those employed in a position, grade or class above that of captain, in any municipality affected by this Subpart, shall be forty hours in any one calendar week. In cases of emergency, any employee may be required to work in excess of the maximum. For each hour so worked the employee shall be paid at the rate of one and one-half times his usual salary, to be determined by reducing his monthly salary to an hourly scale.”

The Sub-part referred to in the statute is Sub-part B of Part III of Chapter 4 of Title 33. That Sub-part applies “. . . to municipalities having a population of not less than twelve thousand nor more than two hundred fifty thousand.” (LSA-R.S. 33:2211.)

Thus, it would appear at first glance that the LSA-R.S. 33:2213 would apply to plaintiff’s case. However, the problem is complicated by the fact that the Parish of East Baton Rouge has a Home Rule Charter. This Home Rule Charter was granted under the provisions of Art. 14, Sec. 3(a) of the Louisiana Constitution of 1921, which read in pertinent part as follows:

“See. 3(a). East Baton Rouge Parish
Section 3(a). The people of East Baton Rouge Parish shall have power to establish, in the manner hereinafter provided, government for the Parish and the several municipal corporations and other political subdivisions and districts situated therein.
(2) Plan of government. Subject to the constitution and laws of this state with respect to the powers and functions of local government, as distinguished from structure, organization and particular distribution and redistribution of such powers and functions among the several units of local government within the Parish, such plan of government may provide, among other things:
(a) For consolidation, or reorganization, of all or part of the local governmental units, agencies and subdivisions in the parish, for the elimination or transfer of powers and functions of such units, agencies and subdivisions, for the creation of one or more new local governmental units, agencies and subdivisions, for the reorganization of one or more local governmental units, agencies or subdivisions, for the extension of municipal limits, and for all matters necessary or appropriate to the effectuation of such provisions, including, without limitation, the assumption by one local governmental unit, agency and subdivision of indebtedness of another or other and transfer of official personnel records, funds and other property and assets; and
(b) For revenue for the support of the one or more local governmental units, agencies or subdivisions proposed by the plan, including, without limitation, allocation of parish revenues to other units, agencies or subdivisions.”

Under the constitutional mandate, the Parish of East Baton Rouge and the City of Baton Rouge adopted a Plan of Government which became effective January 1, 1949. That Plan of Government has been amended six times, most recently on February 1, 1972. Although the Plan of Government has not been filed in the record, the Plan of Government has been duly filed with the Clerk of this Court and the Parish of East Baton Rouge, and this Court may take judicial notice of its provisions under the authority of LSA-R.S. 13:3712(B). (See Bradford v. City of Shreveport, 266 So.2d 254 (La.App. 1972), writ refused 263 La. 364, 268 So.2d 256 (1972).) The Plan of Government contains the following provision:

“SECTION 6.02. Police Department— Organization. The city council shall have, except as provided in this plan of government, all the powers and duties relating to the organization and activities of a police department conferred or imposed on the City of Baton Rouge by its charter and the general laws of the state. The chief of police shall be in direct command of the department and, subject to the provisions of Chapter 9 of this plan of government, shall have power to appoint and remove all other officers and employees of the department. He shall assign all members of the department to their respective posts, shifts, details and duties. He shall make rules and regulations consistent with this plan of government, the ordinances of the city council, and the laws of the state, concerning the operation of the police department, the conduct of its officers and employees, and their equipment, training and discipline, and the penalties to be imposed for infraction of such rules and regulations, which when approved by the city council shall be binding on all members of the department.”

Home Rule Charters in effect when the Louisiana Constitution of 1974 was ratified remained in effect by virtue of Art. 6, Sec. 4 of the 1974 Constitution. Article 6, Sec. 4 of the 1974 Constitution reads as follows:

“Section 4. Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.”

The question then arises as to whether or not the provisions of LSA-R.S. 33:2213 may constitutionally apply to the City of Baton Rouge. La Fleur v. City of Baton Rouge, 124 So.2d 374 (La.App. 1st Cir. 1960), considering the applicability of a similar statute (LSA-R.S. 33:1992) to firemen of the City of Baton Rouge, answered this question in the negative. It held that the provisions of the East Baton Rouge Parish Home Rule Charter, more especially that clause of Art. 14, Sec. 3(a)(2) of the Constitution of 1921 which delegated to the people of East Baton Rouge Parish the power to regulate the “structure, organization and particular distribution” of powers and functions, rendered, the provisions of the general statute (which purportedly applied to firemen in municipalities having a population of thirteen thousand or more) constitutionally inapplicable to the City of Baton Rouge.

The holding in La Fleur was buttressed by the holding in Bradford v. City of Shreveport, 305 So.2d 487 (La.1975). In that case, policemen sought overtime pay under the statute upon which the present plaintiff founds his case. The City of Shreveport had a Home Rule Charter which did not contain the clause quoted from the East Baton Rouge Parish Home Rule Charter, and the Court held that for that reason, and for that reason alone, the statute applied to policemen employed by the City of Shreveport.

We hold, under the decisions in La Fleur and Bradford, that LSA-R.S. 33:2213 (as amended by La. Act. No. 669 of 1976, Sec. 1) cannot constitutionally apply to the City of Baton Rouge, under the Home Rule Charter and Plan of Government as the statute involves the “structure” and “organization” of East Baton Rouge Parish and the City of Baton Rouge.

We must now consider plaintiff’s contention that the constitutional inapplicability of the statute under Art. 6, Sec. 4 of the 1974 Constitution is an abridgement of the State’s police power under Art. 6, Sec. 9(B) of that Constitution. Article 6, Sec. 9(B) reads as follows:

“(B) Police Power Not Abridged. Notwithstanding any provision of this Article, the police power of the state shall never be abridged.”

We find the following language in La Fleur is pertinent:

“A municipality, where created by legislative mandate in accordance with the Constitution, is granted powers and authority which are subject to change by the Legislature but where the creation of the municipality has its origin in the Constitution itself, then the Legislature is not vested with authority to alter, change or interfere with the powers and authority so granted to the municipality. Under the ‘power and function of government’ the obligation on the part of the City of Baton Rouge to furnish a fire department is self-evident, but it is difficult to conceive how the structure and organization of the fire department could be effectuated by the City of Baton Rouge without giving particular consideration to the salaries to be paid to the firemen. Since the aforesaid constitutional provision reserves all matters of structure and organization exclusively to the defendant, City of Baton Rouge, it follows that the question of pay of a fireman being a matter of structure and organization and distinguished from a power or function is reserved exclusively to defendant herein and Act 219 of 1956 is not applicable to defendant herein.” (124 So.2d 374, 379)

The statute on the pay of firemen that La Fleur involved has not been amended since La Fleur was decided. The scope of LSA-R.S. 33:2213, the statute involved in Bradford and in the present case, has not been broadened to apply to the Parish of East Baton Rouge Home Rule Charter since Bradford was decided. Although the statute has been amended since then (in 1976), the amendment had no express bearing on its applicability to the Home Rule Charter of that Parish, and we hold it has no implied bearing on its applicability.

The amendment to LSA-R.S. 33:2213 subsequent to the effective date of the 1974 Constitution and to the denials of rehearings in Bradford (1975) expressed no legislative intent to change the ruling in Bradford or that in La Fleur. The Legislature, we presume, did not find the inapplicability of the statute to East Baton Rouge by virtue of the constitutional grant of power to the local government to constitute an abridgement of the State’s police power. We, therefore, hold that there is no abridgement of the State’s police power in this case.

Accordingly, the judgment of the trial court sustaining the City of Baton Rouge’s exception of no cause of action is affirmed, at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 33:1992.

      . “ . . . structure, organization and particular distribution . . ” (quoting from Art. 14, Sec. 3(a)(2) of the Louisiana Constitution of 1921).

      . LSA-R.S. 33:1992.

      . For purposes of comparison, we quote LSA-R.S. 33:2213 as it stood before the 1976 amendment:
      “Sec. 2213. Máximum hours

      The maximum hours of work required of any full-time paid patrolman, patrolman first class, sergeant, lieutenant, or captain, or any other employee of the police department, except those employed in a position, grade, or class above that of captain, in any municipality affected by this Sub-part, shall be forty-eight hours in any one calendar week, and eight hours in any one day. In cases of emergency, any employee may be required to work in excess of the maximum. For each hour so worked the employee shall be paid at the rate of one and one-half times his usual salary, to be determined by reducing his monthly salary to an hourly scale.”


text:
    Patricia Remaley HUNSICKER v. John E. HUNSICKER, III.
    No. 13235.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Sylvia Roberts, Baton Rouge, of counsel, for plaintiff-appellee, Patricia Remaley Hunsicker.
    David Donnell Moss, Baton Rouge, of counsel, for defendant-appellant, John E. Hunsicker, III.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a rule to increase an alimony award to Patricia Remaley Hun-sicker, appellee, and to increase an award for child support for the parties’ two minor children, Deborah Lynn Hunsicker and Kimberly Jean Hunsicker. John E. Hun-sicker, appellant and defendant in rule, answered seeking a reduction in alimony. The trial court left the amount of alimony at $500.00 per month and increased the amount of child support to $350.00 per month for each of the two children. John E. Hunsicker, III appealed. We affirm.

The parties were divorced by judgment of the Family Court of East Baton Rouge Parish dated June 23, 1978. The judgment awarded temporary custody of the two minor children to Mrs. Hunsicker, and awarded alimony of $1,200.00 per month and $100.00 per month for child support for each child. The judgment was amended by consent of the parties on October 19, 1978, to award permanent custody of the children to Mrs. Hunsicker, and to reduce the amount of the alimony to $500.00 per month, and to increase the amount of child support to $250.00 per month for each child.

The amended judgment contained the following paragraph:

“ ‘The amount of alimony and child support has been agreed upon by petitioner and defendant and said agreement is without prejudice to either party’s right to reopen the matter of child support and alimony at a later date without the need to show a change in circumstances.’ ”

We, therefore, hold that there is no need to show a change in circumstances.

Mr. Hunsicker is president of Buckelew’s Food Serving Equipment Co. in Baton Rouge, a wholly owned subsidiary of Bucke-lew Hardware Co. in Shreveport, of which his father is president. He has an assured income of $48,000 per year, plus a possible annual bonus which in the past has been ten per cent of the net profit of the company. The trial court proceeded on the assumption that Mr. Hunsicker’s annual gross income was $48,000.00.

Mrs. Hunsicker is an artist. She planned to move to Florida, a move which the record strongly suggests, but does not expressly state, was imminent. At the time of the trial on the alimony rule, she did not have a regular job, but she derived a small income from the sale of some paintings and pen and ink sketches. She plans to get a part-time job in Florida, and to attend the University of Central Florida to get a degree. She will pay the college expenses from the alimony. Other major expenses that she will incur are expenses of sending the children to visit their father, $1,200 moving expenses, $350.00 per month rent in Florida, $100.00 per month for electricity, $147.36 per month for taxes, tolls, and licenses, and $500.00 per month for groceries. The total amount of estimated monthly expenses for Mrs. Hunsicker and the two children was $2,239.74 per month. This amount, we note, is far more than the total amount of alimony and child support that the trial court awarded ($1,200.00 per month). We doubt that Mrs. Hunsicker will derive sufficient income from part-time work to meet expenses, even with the awards of alimony and child support.

We do not find that the award of alimony and child support was excessive; we think it was conservative. Nor do we find the expenses to be incurred by the move to Florida to be remote and speculative, as appellant contends. The entire record indicates that the move to Florida was to take place in the immediate future. The house that Mrs. Hunsicker was to rent in Florida had been selected, and the moving expenses had been ascertained. This factual situation differs entirely from the factual situations presented in Graves v. Graves, 197 So.2d 206 (La.App. 1st Cir. 1967) and Faust v. Faust, 254 So.2d 304 (La.App. 4th Cir. 1971), in which economic circumstances which would exist in the rather distant future and which were a matter of speculation were involved.

As we have stated, we find no fault with the amount of the trial court’s award for alimony and child support. We find the following language in Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir. 1975) to be appropriate:

“ . alimony and child support are within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. Johnson v. Johnson, 293 So.2d 213 (La.App. 3rd Cir. 1974), Jackson v. Jackson, 275 So.2d 456 (La.App. 2nd Cir. 1973), Bernhardt v. Bernhardt, 271 So.2d 342 (La.App. 2nd Cir. 1972), Guilbeau v. Latour, 270 So.2d 328 (La.App. 3rd Cir. 1972).”
(308 So.2d 377, 379)

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


text:
    DAIGLE & ASSOCIATES, INC. v. Sylvia S. COLEMAN et al.
    No. 13239.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Rehearing Denied June 9, 1980.
    Sanders Cazedessus, Baton Rouge, of counsel, for plaintiff-appellee Daigle & Associates, Inc.
    Robert L. Kleinpeter, Baton Rouge, of counsel, for defendants-appellants R. E. Coleman and Sylvia S. Coleman.
    Chapman L. Sanford, Baton Rouge, of counsel, for defendants-appellants/appel-lees Bernard Watson, Jr. and Rowena Ding-man Watson.
    Robert E. Tillery, in pro. per.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is a concursus proceeding convoked by a real estate broker, Daigle & Associates, Inc., Baton Rouge, to determine who is entitled to $5,000.00, which it deposited in the registry of court. The impleaded claimants are Bernard Watson, Jr. and Rowena Ding-man Watson, husband and wife, Robert E. Coleman and Sylvia S. Coleman, husband and wife, and Robert E. Tillery. The trial court awarded the $5,000.00 to the Watsons. The Colemans and Tillery appealed. We reverse.

Mrs. Coleman hired Robert E. Tillery, a lawyer, to obtain a separation from bed and board from her husband. She paid Tillery the sum of $18,761.17, as an advance payment of fees and expenses, which he deposited in his client account. She needed a place for herself and her son to live, and after living at the Sheraton Hotel for a short time, she looked at apartments, and contacted plaintiff firm about purchasing a house. She agreed to buy the house that the Watsons owned and in which the Wat-sons had lived for a short time. However, the community had not been partitioned, or the judgment of separation obtained, for that matter. Mrs. Coleman agreed to enter into an agreement to purchase, which was to bind the buyer to buy and the seller to sell, with a lease until the purchase was perfected. The agreement was to be in writing. Mrs. Coleman gave Tillery, her lawyer, a written general power of attorney prepared by a notary other than himself, which she clearly intended was to give him authority to sign the agreement to purchase in her name should she be absent. On the day the agreement to purchase was signed, Mrs. Coleman was unavailable, so Tillery signed the agreement for her as her attorney in fact. There is nothing that would indicate that the agreement to purchase contained any provisions at variance with Mrs. Coleman’s intentions; in fact, it is clear that Mrs. Coleman entered into the discussions leading up to the signing of the agreement. The sum of $5,000.00 was deposited with Daigle & Associates as earnest money, with Tillery paying that sum by check on his attorney account. The power of attorney was not produced at the time the agreement to purchase was signed, and it did not contain express power to buy or sell immovables. Mrs. Coleman moved into the house, made arrangements about landscaping, repainted several rooms, and ordered some $150,000 of furniture for the house.

The judgment of separation was subsequently obtained. Later, Mr. and Mrs. Coleman became reconciled, and Mrs. Coleman stopped paying rent, and moved out of the house. She said she would not buy the house. The Watsons never had an act of sale prepared and never demanded that Mrs. Coleman, or Mr. and Mrs. Coleman, appear before a notary to execute an act of sale. Three days before the closing date, which was to be July 10, 1978, Daigle & Associates filed the present concursus proceeding, depositing $5000.00 in the registry of the court. On the same date, Daigle & Associates entered into a written settlement with the Watsons under which Daigle & Associates paid the Watsons $2,500.00 and the Watsons released Daigle & Associates from “. any and all liability

As the agreement to purchase was signed by Tillery as attorney in fact for Mrs. Coleman, and as Tillery did not have express authority to enter into purchases of immovable property or agreements to purchase immovable property, the contract was voidable. See LSA-C.C. art. 2996; Lake v. Le Jeune, 226 La. 48, 74 So.2d 899 (1954); Marchand v. Armstrong, 354 So.2d 581 (La. App. 4th Cir. 1978), writ denied 355 So.2d 254, 255, 256 (1978). The Colemans contend that the contract lacks validity. Yet, a contract entered into by an agent, though voidable for lack of authority to act, may be ratified by the principal. LSA-C.C. art. 3021; Skye Realty Co. v. Diversified Ins. Agency, Inc., 221 So.2d 871 (La.App. 3rd Cir. 1969). However, Skye concerned a lease of an office building. The purported contract in the present case is an agreement to purchase immovables. It has been held that an agreement to purchase affecting immovable property can be ratified only in writing. See Krupp v. Nelson, 50 So.2d 464 (La.App.Orl.1951). Furthermore, it was held in Noble v. Plouf, 154 La. 429, 97 So. 599 (1923), on an exception of no cause of action, that parol evidence would be inadmissible to prove ratification of a mineral lease if the matter were to be brought to trial, as a mineral lease created rights which were immovables. The parol evidence which it was held could not have been introduced was evidence of acceptance of cash consideration by the principals and evidence of the principals’ stating that the agent had full authority to enter into the mineral lease. In the present case neither Mr. Coleman nor Mrs. Coleman ever ratified in writing the agreement to purchase. Parol evidence of ratification cannot be considered. Thus, as there was no binding contract upon the Colemans, because Tillery was without authority to sign the agreement to purchase, and as the contract was never effectively ratified by Mr. or Mrs. Coleman, there is no contract that can be enforced by the Watsons. There having been no contract, either the Colemans or Tillery are entitled to the $5,000.00 deposited as earnest money.

As Tillery has repeatedly promised to deliver the $5,000.00 to the Colemans if that sum is awarded to him (his having obtained a judgment against the Colemans for the amount of the purported deposit as well as attorney’s fees), the question of whether the $5,000.00 should be awarded to the Cole-mans or Tillery is moot.

We reverse the holding of the trial court, and render judgment awarding the $5,000.00 to Robert E. Coleman and Sylvia S. Coleman, all costs to be paid from the fund on deposit in the registry of the court.

REVERSED AND RENDERED.

      . This is still the case under the Louisiana Mineral Code (LSA-R.S. 31:1 et seq., after a rather checkered history following the decision in Gulf Refining Co. v. Giassell, 186 La. 190, 171 So. 846 (1936). See Yiannopoulos, Movables and Immovables in Louisiana and Comparative Law, 22 La.L.Rev. 517, 551 et. seq. (1962). In Slay v. Smith, 368 So.2d 1144 (La.App. 3rd Cir. 1979), it was held that parol evidence would be inadmissible under the Mineral Code to prove transfer of an interest in certain sand and gravel leases, which were classified as incorporeal real rights (sand and gravel leases being covered by the Mineral Code, the scope of which includes gravel and soil. See LSA-R.S. 31:4).


text:
    In the Matter of the SUCCESSION OF Willie Warner HOOVER.
    No. 13252.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Rehearing Denied June 9, 1980.
    Robert L. Kleinpeter, and Melanie Klein-peter, Baton Rouge, of counsel, for plaintiff-appellant Judy C. Hoover.
    Gerard E. Kiefer, Baton Rouge, of counsel, for defendant-appellee Melda Hoover Courtney.

      Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

The present matter was presented in the form of a rule to show cause why the will of Mrs. Willie Warner Hoover should not be admitted to probate. After a rather lengthy contradictory trial in which all heirs and legatees were represented, the rule was made absolute and the will was found to be proved. Defendants in rule appealed, and we affirm.

The will was in the form permitted for the execution of a statutory will by one who can read (which at the time of the execution of the will, 1973, was the sole form for a statutory will. — see LSA-R.S. 9:2442 as it stood before amendment). There is ample evidence in the record to show that Mrs. Hoover could write letters and sign checks and we, therefore, conclude that she could read. The notary who signed the will had died, and the two witnesses to the execution of the will were called. Defendant in rule, appellant, contends that the will was not in proper form because (1) the will was not read aloud in the presence of the testatrix, and the subscribing witnesses, and (2) one of the two subscribing witnesses could not remember at the trial on the rule that Mrs. Hoover had declared the document to be her last will and testament. The first contention is without merit, as the statute does not require that the will be read aloud in the presence of the testator (-rix) and the two witnesses, and, furthermore, there is testimony that the notary read the will aloud to the testatrix either before or after witnesses arrived. The second contention is also without merit, as LSA-C.C.P. art. 2887 (as amended by La. Act No. 475 of 1970, Sec. 1) merely requires that the notary and one subscribing witness, or the two subscribing witnesses, testify that a will confected in accordance with LSA-R.S. 9:2442 was signed by the testator (-rix). The testimony of the two subscribing witnesses is clear and unchallenged that the will was signed by the testatrix.

Appellant (defendant in rule) also contends that Mrs. Hoover lacked testamentary capacity at the time the will was executed. Testamentary capacity is presumed, and the degree of proof required to overcome the presumption of testamentary capacity is similar to that required in criminal cases to remove the presumption of innocence, that is, any reasonable doubt must be resolved in favor of the validity of the will. Succession of Brown, 251 So.2d 465 (La. App. 1st Cir.1971), Succession of Bush, 292 So.2d 915 (La.App. 1st Cir.1974) writ refused 294 So.2d 837 (1974). The trial court applied this test correctly, and concluded that the opponent of the will (defendant in rule) fell “ . . . far short of establishing beyond a reasonable doubt that Mrs. Hoover was not sufficiently sound of mind to fully understand the testamentary act and appreciate its effects.” We have carefully read and examined the record, including the depositions “Jand other exhibits, and we find that the trial court was correct in finding that defendant in rule fell far short of meeting the test.

The judgment of the trial court making the rule absolute is, therefore, affirmed, at appellant’s cost.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Alfred S. ROMANO v. Rodney A. GIRLINGHOUSE.
    No. 13198.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      Joseph L. Waitz, Houma, for plaintiff and appellee.
    W. Richard House, Jr., New Orleans, for appellant and defendant Kansas City Southern Railway Co. & L. D. Durrett.
    Kerry P. Camarata, Metairie, for defendant Rodney A. Girlinghouse.
    Charles Hanemann, Jr., Houma, for defendant-third party Chromalloy American Corp.
    Frank H. Walk, Jr., New Orleans, for defendant-third party Government Employees Insurance Co.
    John L. Lanier, Thibodaux, for defendant-third party Aetna Casualty & Surety Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is an action ex delicto filed by Alfred S. Romano against Rodney A. Girlinghouse, Kansas City Southern Railway Company (KCS) and L. D. Durrett for injuries received when plaintiff was a guest passenger in an automobile operated by Girlinghouse which collided with a train owned by KCS and engineered by Durrett. KCS and Dur-rett impleaded, among others, Aetna Fire and Casualty Company (Aetna), Girling-house’s personal family automobile insurer. From a summary judgment in favor of Aet-na, KCS and Durrett have appealed.

At issue is the proper interpretation of the “regular use” exclusion in the family automobile policy.

Plaintiff Alfred Romano accompanied defendant Rodney Girlinghouse on a business trip to Minden, Louisiana, on February 8, 1977. Girlinghouse was an employee of Delta Iron Works, while Romano was an employee of Petroleum Treaters, both subsidiaries of American Chromalloy Corporation. The two men drove to Minden in Girlinghouse’s company car.

In the early evening of the next day, Girlinghouse and Romano were traveling to the home of Bill Roberts, another Delta employee, when the company car in which they were riding collided with the train. Romano alleges Girlinghouse was driving the car although there is still some dispute as to this fact. For the purposes of the appeal, we will assume Girlinghouse was driving. In deposition, Girlinghouse claims he and Romano were going to Roberts’ house to eat dinner and to discuss an upcoming oil show in Houston. Whether the trip to Roberts’ house was for business or social purposes is also in dispute. The accident resulted in serious injuries to Romano, who subsequently brought this suit against Girlinghouse, as the alleged driver of the company car; the Kansas City Southern Railway Company; and Durrett, the operator of the locomotive involved in the accident. The KCS and Durrett impleaded Aetna Fire and Casualty Company, seeking indemnity or contribution for any damages they might be required to pay. Aetna, in a motion for summary judgment, contended that the company vehicle Girlinghouse was allegedly driving was a vehicle furnished for his regular use and was therefore ex-eluded from coverage under the family automobile policy issued by Aetna.

The Aetna policy covers certain listed owned automobiles and some unlisted non-owned cars. Covered under the non-owned provisions are automobiles and trailers “not owned by or furnished for the regular use of either the named insured or any relative

KCS and Durrett concede that Girling-house’s employer “placed no restriction upon Girlinghouse’s use of his company ear, and Girlinghouse was free to use it for social as well as business purposes.” But they question whether summary judgment was the proper device to remove Aetna from the suit. KCS and Durrett contend there are some disputed issues of fact which if resolved in their favor, could result in coverage under the Aetna policy. The only disputed factual issue raised in brief is whether Girlinghouse was engaged in the course and scope of his employment at the time of the accident or whether he was on a social visit at that time. In their memorandum in opposition to the motion for summary judgment, Durrett and KCS also seemed to question whether Girlinghouse’s use of the company car on an extended business trip was a “regular use” of the vehicle in Girlinghouse’s employment and whether such use was intended to be excluded under the Aetna policy provisions.

Whether a certain vehicle has been furnished for the regular use of a person is a question which can be answered only after considering the facts and circumstances of each case. In Blanchard v. Hanover Insurance Company, 250 So.2d 484 (La.App. 1st Cir. 1971), the court held that an employer’s pickup truck which was used by the plaintiff to deliver the employer’s products was furnished for the regular use of the plaintiff. The court noted that the employer continuously furnished certain vehicles for the plaintiff’s use at regular and predictable certain intervals. The accident occurred while the plaintiff was in the course and scope of his employment and while he was using one of the vehicles regularly furnished to him by the employer. The use “constantly recurred at fixed intervals” so that plaintiff was precluded from coverage under the medical provisions of his personal automobile policy.

Likewise, in Brouillette v. Fireman’s Fund Insurance Company, 163 So.2d 389 (La.App. 3rd Cir. 1964), writ refused, 246 La. 594, 165 So.2d 485, the court excluded coverage under a personal automobile liability policy when the plaintiff was injured while performing his duties as a city fireman on a city fire truck. The regular use exclusionary clause was held to be unambiguous so that the policy did not have to be interpreted strictly against the insurer. The court also noted that the purpose of the exclusionary clause is to limit coverage to casual or infrequent use or occupancy of automobiles other than the automobile defined in the policy. See also Dickerson v. Millers Mutual Fire Insurance Company of Texas, 139 So.2d 785 (La.App. 2nd Cir. 1962), wherein the court held that a funeral home ambulance was regularly furnished to the funeral home employee because he drove it on sporadic occasions when it was needed to transport patients. The accident in that case occurred while the funeral home employee was on the job.

A case which appears to be close in point to the facts of this case but which, unfortunately, bears little discussion of the regular use clause is Crandall v. Scott, 350 So.2d 922 (La.App. 4th Cir. 1977). In that case, a company vehicle was furnished to the father on an apparently regular basis. The father apparently had total use of the car 24 hours a day. While the father and mother were on a vacation, the father’s minor son took the keys of the company car from the kitchen and accidentally wrecked the vehicle. In excluding coverage under the father’s personal automobile policy, the court held, without discussion, that the car was furnished for the regular use of the father-employee, and therefore the father’s insurer was not liable.

A case in which coverage was allowed was Lincombe v. State Farm Mutual Automobile Insurance Company, 166 So.2d 920 (La.App. 3rd Cir. 1964), writ refused, 246 La. 907, 168 So.2d 820. In that case a woman had purchased a new car but the new car was not in stock. The automobile dealer furnished her another car while the car she ordered was being delivered. She was involved in an accident in the car that had been furnished for her use and a suit was brought against her personal liability insurer. In holding that the personal liability policy applied to the accident, the court noted that the risk to the insurer was not increased by the woman’s use of the dealership’s ear, and consequently, there was no double coverage. The court found that the car had not been furnished for her regular use because there was no commitment by the automobile dealership to provide her with this particular vehicle at all times while the car she ordered was being delivered and that her use of the loaned automobile would be discontinued after her new vehicle arrived.

In the case at bar, Girlinghouse had use of the company vehicle 24 hours a day. He used the car for business and social purposes, and he often took it with him on business trips in other parts of the state and even out of state. The keys to the company car were on a ring with keys to his house and other personal keys.

Even conceding for the purposes of this appeal that Romano and Girlinghouse were on a social instead of a business function at the time the accident occurred, Girling-house’s personal automobile policy would not provide coverage. This is so because Girlinghouse was free to use his company car in any way that he saw fit, including personal, business and social purposes. Excluding coverage under these circumstances also squares with the intent of the regular use exclusion. The purpose of the regular use exclusion is to protect an insurance company against double coverage when a premium has been paid on only one vehicle. If the insured has access to a second vehicle furnished for his regular use, the insurance company can rightfully require that a premium be paid for the insured’s use of the second vehicle. It simply would not be fair to impose liability on Girlinghouse’s personal automobile insurer for an accident which occurred when Girlinghouse was driving a company car which had been furnished to him for almost any use he saw fit.

We realize that in reviewing a summary judgment, the benefit of the doubt should in all cases be given to the party opposing the motion for summary judgment. And only if there is no genuine issue as to material fact, and the mover is entitled to a judgment as a matter of law, should a summary judgment be granted. La.C.C.P. art. 966. We do not see how any resolutions of the facts in this case can lead to a holding that coverage is due under Girling-house’s personal automobile liability policy.

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

AFFIRMED.


text:
    Orelia HANZY v. Clarence SAM, Affiliated Foods, Inc. and United States Fidelity and Guaranty Company.
    No. 13208.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      Thomas L. Mahfouz, Morgan City, for plaintiff and appellant.
    Robert D. Morvant, Thibodaux, for defendants and appellees.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This automobile accident case comes before us solely on the issue of quantum. The plaintiff, Orelia Hanzy, appeals a trial court judgment awarding her $4,000.00 in general damages and $2,830.63 in special damages. Specifically, the plaintiff claims the trial court erred in refusing to award her any sum for loss of wages and in awarding only $4,000.00 in general damages.

The accident occurred on June 1, 1977, as plaintiff was returning from a meeting with representatives of Avon, with whom she had begun work as a sales person that day. Her 1973 Toyota, stopped in the right lane of traffic while waiting to make a left turn, was struck from behind by an 18-wheeler driven by defendant, Clarence Sam. The plaintiff subsequently filed this suit against Sam; Sam’s employer, Affiliated Foods, Inc.; and Affiliated’s insurer, United States Fidelity and Guaranty Company.

The suit was tried on the issue of quantum alone. The plaintiff testified that she told the investigating police officer at the scene that she was hurt. Later that day, she went to the emergency room of a local hospital where she received medication for a sore neck and a cervical collar for neck support.

Two days after the accident, Ms. Hanzy made the first of what was to become a long series of visits to the doctor’s office. After three visits with her family doctor, plaintiff was referred to Dr. Lawrence Russo, Jr., an orthopedic surgeon.

The plaintiff testified she was virtually bedridden for the four-month period between June and September. She was hospitalized for 10 days from August 31 to September 9 and placed in traction for 24 hours a day. The plaintiff said her neck hurt constantly from June, 1977, to January, 1978. She also complained of back pain and frequent headaches. She enrolled at Nich-olls State University in the fall semester, 1977, but had to drop out because of neck pain and because of the difficulty the cervical collar was causing.

In a deposition submitted into the record, Dr. Russo testified he diagnosed Ms. Han-zy’s condition as a moderate cervical strain, including injuries to tissues, muscles and ligamentous areas of the cervical spine.

At first, Dr. Russo required the plaintiff to undergo daily heat treatments at his office. He also prescribed muscle relaxants and mild pain medication. Later, however, when Ms. Hanzy’s condition did not improve as it normally should have, Dr. Russo ordered her hospitalized for intensive physical therapy.

The plaintiff saw Dr. Russo a number of times after her hospitalization and he continued conservative treatments. Examination by two other physicians confirmed that the plaintiff did not have a herniated disc, a fracture or nerve root damage. Dr. Russo said there was no evidence that Ms. Hanzy was faking her injuries and he felt Ms. Hanzy had a “fairly significant injury to her neck.”

Ms. Hanzy’s last visit to Dr. Russo before the trial was on October 18,1978 — some one year and four months after the accident. She still complained of neck pain and headaches. Dr. Russo said Ms. Hanzy can expect to suffer pain for the next six to twelve months and even thereafter when the weather changes or when other circumstances aggravate her injury.

The plaintiff testified she could not work from the time of the accident until January, 1978. However, her sister took over her Avon route during this time and earned $2,834.27 from cosmetic sales. Ms. Hanzy testified that her sister kept all of the money earned during this time, although all sales were made on Ms. Hanzy’s Avon account. Neither reported this income on her tax return.

GENERAL DAMAGES

We are once again faced with the troublesome issue of appellate review of a trial court’s general damage award. Much of the trouble exists because of two opposing policy considerations which are manifested in our constitution and statutes. The Constitution empowers appellate courts to review both fact and law on appeal. La.Const. Article 5, § 10(B). However, La. C.C. art. 1934(3) gives trial courts and juries “much discretion” in assessing tort damages. If a trial court’s much discretion is to be given any weight, then appellate review of damage awards must necessarily be limited to the exceptional cases in which the trial court has clearly abused its discretion. But what constitutes “much discretion” and “clear abuse” has not been adequately addressed in our law or in our jurisprudence, probably because of the slippery nature of the concept of general damage awards, i. e., awards for physical and mental pain and suffering, grief, mental anguish, etc.

Instead of attempting the probably impossible task of defining “much discretion” and “clear abuse,” our Supreme Court has tried to establish a framework for applying these concepts. In the recent case of Reck v. Stevens, 373 So.2d 498 (La.1979), the court established a two-step process for appellate review of general damages. Before an appellate court can even think of raising or lowering a trial court’s award, it must first make an articulated finding that the trial court abused its discretion. Significantly, a finding of abuse must be based on facts in the record before the appellate court, and not on past cases which appear to be similar to the case before the court. Only after finding an abuse of discretion can the appellate court proceed to the second step of determining an adequate award. While past cases may be helpful in determining what the proper award should be, only truly similar cases should be relied upon because no two cases are alike. If the appellate court determines an award should be raised or lowered, it can only raise or lower the award to the highest or lowest point which would have been within the trial court’s discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

In a recent case before this circuit, we affirmed a $12,500.00 award to a plaintiff whose injuries were similar, though perhaps not truly similar, to those of the plaintiff in this case. Engolia v. Cumis Insurance Society, 383 So.2d 1055, No. 13144 on the docket of the First Circuit Court of Appeal. We noted in that case the difficulty of following our Supreme Court’s rules on appellate review of quantum, and opined that the Supreme Court favored a hands-off policy on quantum unless an award was so exceptionally wrong that even the Supreme Court would amend it.

In again attempting to determine what the Supreme Court meant in its admonition to the courts of appeal, we are reminded that the trial judge or jury is not a computer into which facts and circumstances can be fed and out of which comes a uniform answer no matter where in the state the computer is located. These are not workmen’s compensation cases where there is a schedule of benefits which have been standardized by the legislature. There is no pigeon hole into which we can place each award. Judges and jurors are all possessed with the fallible characteristics of human beings, thus awards for seemingly similar injuries will seldom be the same.

It is not the function of the appellate courts, including the Supreme Court, to standardize general damage awards across the state in eases with similar facts. Our purpose and our constitutional role is to guarantee by appellate review that the trial judge or jury in fulfilling its role has not so excessively abused its much discretion that our consciences would be shocked if such an award were allowed to remain untouched.

The shocking of the conscience concept means simply that if the award is so excessively high or low as to shock a reviewing court into the realization that it must correct the award, then so be it. An award must be so out of line as to cry out for a change. But in doing so, the reasons why must be articulated; that is, they must be spelled out in detail and not in generalities. Stated another way, the opinion of the intermediate appellate court must convince the Supreme Court that the trial judge or jury abused that much discretion. To say that it has is not enough.

Certainly one can say without contradiction that a $100.00 award for pain and suffering for an individual who must endure the pain of third degree burns over a major portion of his body for sometime before medical assistance is rendered is shocking and certainly a flagrant abuse of discretion. By the same token, a $100,000 general damage award for injuries the same as those in the instant case would also be shocking. Our point of course is that there is no manual that one can look to for the answer as to what is shocking enough to constitute an abuse of discretion. Whether a particular award shocks the conscience will depend to a large extent on the philosophical makeup of the reviewing court. But importantly, if a change is to be made, it must not be merely a slight change in the award. It must not be a change merely because the reviewing court would have given a different amount. If any change is made, it must be made because the trial award is so out of line with reality that it is shocking and would constitute an injustice if allowed to stand.

Plaintiff-appellant has referred us to cases where higher awards have been made. Defendant on the other hand has referred us to cases where lower awards were made. Considering all of the facts and circumstances, we are of the opinion that this case does not fall within the parameter of the shocking of the conscience concept, and therefore find no error in the general damage award.

LOSS OF WAGES

The trial judge made no award to plaintiff for loss of wages and gave no written or oral reasons as to why he refused to do so. Considering the facts as presented by plaintiff and her sister, and in particular that neither reported this income on her tax return, we view the trial judge’s refusal to make an award a credibility question. He apparently did not believe plaintiff. He saw and heard these witnesses testify, is in a better position to judge their credibility, and we will not interfere with his decision.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


text:
    WATSON, BLANCHE, WILSON & POSNER v. CHARLES CARTER & COMPANY, INC.
    No. 13280.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Rehearing Denied May 20, 1980.

      Ben L. Guelfo, Baton Rouge, for plaintiff and third party plaintiff, appellee Watson, Blanche, Wilson & Posner.
    Walton J. Barnes, Baton Rouge, for defendant, appellant Charles Carter & Co., Inc.
    Ray C. Dawson, Baton Rouge, for third party defendant, appellee National Surety Corp.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit by plaintiff, Watson, Blanche, Wilson & Posner, a law partnership, against Charles Carter & Company, Inc. (Carter) for unpaid legal fees. Carter in turn third partied Cliff Hughes Co. of Louisiana, Inc., formerly Hughes-Walsh (Hughes), and its surety, National Surety Corporation (National Surety), for the amount of the attorney fees under the provision of the subcontract existing between Carter and Hughes. Hughes was never served with the third party demand. On motion of plaintiff, the principal demand was severed from the third party demand. Judgment was rendered in favor of plaintiff and against Carter for $4,263.23. On the third party demand, judgment was rendered in favor of National Surety and against Carter. Carter has appealed only the denial of its third party demand.

To better understand this case it is necessary to review the facts leading up to the instant suit. In 1968 Carter contracted with Capitol Construction & Improvement Commission for the construction of a health and physical education building at Southeastern Louisiana College (Southeastern Louisiana University) in Hammond. Subsequently, Carter subcontracted certain mechanical work to Hughes-Walsh of Dallas, Texas. As the subcontract progressed, Hughes reached a point whereby it could not meet its financial obligations. At that time Carter still held some $54,259.42 due under the subcontract. This amount represented some $12,400.74 spent by Carter to complete work not done or repair work improperly done by Hughes. Additionally, some $21,128.30 was retained as the costs of repairing damages to the gymnasium floor caused by the negligence of Hughes. The remainder was retained as a result of Carter being served with a notice of a federal tax lien and levy against Hughes.

Carter was sued in the United States District Court for the Middle District of Louisiana by National to recover the retain-age due under the subcontract. The amount sued for was $55,063.69. Plaintiff, Watson, Blanche, Wilson & Posner, was retained as counsel to represent Carter in defense of the federal suit. The federal district court found that the amount that had been retained was $54,259.42, that Hughes was indebted to Carter in the sum of $33,529.04 and that Carter was entitled to this retainage. The balance, $20,730.38, was to be paid by Carter to the United States of America under its lien and levy, and Hughes was granted judgment against Maryland Casualty Company, its liability insurer, for $21,128.30. National was to take nothing in the proceeding. Fireman’s Fund Insurance Company v. Charles Carter Construction Company, Inc., 382 F.Supp. 332 (M.D.La.1974).

On appeal the United States Court of Appeal, Fifth Circuit, vacated the judgment of the district court and remanded “with directions to enter judgment permitting Carter to withhold $12,400.74 of the balance due on its subcontract with Hughes-Walsh; requiring Carter to pay into court the balance of the unpaid portion of the contract price, $21,128.30, in addition to the sum of $20,730.38 previously paid in, pending final disposition on remand of the competing claims of National Surety and the United States; granting Carter a judgment for $21,128.30 against Maryland Casualty, * * National Surety Corporation v. Charles Carter & Company, Inc., 539 F.2d 450 (5th Cir. 1976).

In its third party demand, Carter calls upon Hughes and National to pay the attorney fees incurred by it in defense of the federal suit under a clause in the subcontract which reads as follows:

“Should Contractor employ an attorney to enforce any of the provisions hereof, or to protect its interest in any matter arising out of this contract, or to collect damages for the breach of this contract, or to prosecute or defend any suit resulting from this contract, or to recover on the surety bond given by Subcontractor under this contract, Subcontractor and his surety, jointly and severally agree to pay Contractor all reasonable costs, charges, expenses and attorney’s fees expended or incurred therein.”

In denying the third party demand the trial judge concluded that “since the 5th Circuit authorized the withholding of $12,-400.74 this court thinks perhaps attorney fees attributed to that claim might have been proper if the attorney fees had been itemized as to what time had been spent on these claims individually. Since this was not done, this court in applying McGowan-Rigsby Supply, Inc. [McGowan-Rigsby Supply, Inc. v. Charles Carter & Company, Inc., 268 So.2d 716 (La.App. 1st Cir. 1972)] must deny Carter’s claim.”

In appealing, Carter argues that the trial court erred in refusing to enforce the provisions of the contract between the parties; and in the alternative, that if we agree that the trial judge is correct in that Carter is only entitled to a prorata recovery, then the trial court erred in failing to award a pro-rata share of the expenses.

Appellee-National cites McGowan for the rule that Carter must be without fault before it can recover attorney fees. In McGowan, we did not use the term fault, but rather said that attorney fees were denied where the subcontractor was the victorious party.

In the instant case it is perhaps difficult to say who is the victorious party, or who is at fault. Appellee argues that the Fifth Circuit at 539 F.2d 457 held that Carter had no legal right to withhold payments from Hughes on account of the damage to the gym floor. We are of the opinion that this statement is pure dictum. We will concede for the sake of argument that the amount of the damage to the gym floor is an unliq-uidated claim, La.C.C. arts. 2007 & 2009, and thus does not fall within the rule of “compensation” as found in our Civil Code. However, can anyone deny that Carter had equity on its side in retaining this amount when same was used to repair damage caused by Hughes’ negligence?

National filed suit for all of the retainage which included $12,400.74 for repairs and incomplete work, $21,128.30 for floor damage, and the overage of $20,730.38 held because of the federal tax levy. If National had sued for only the portion held for the federal tax levy, when supposedly the levy had been released, the position of both sides would be different. But we cannot find Carter at fault for retaining the sums of money for repair and incomplete work as well as for floor damage, particularly considering that Hughes’ liability insurer, Maryland, denied any negligence up to and including the federal suit.

The federal district court allowed Carter the retainage spent as a result of Hughes’ fault. In all practicality, the Fifth Circuit’s result is the same as far as Carter is concerned. Thus we conclude that Carter is truly the victorious party in the federal suit because it was allowed to keep the retain-age to the extent of its added expenses.

Since these two retainages were the bulk if not all of the work done by Carter’s attorneys in the federal suit, the trial judge was in error in denying the third party demand.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and IT IS ORDERED ADJUDGED and DECREED that there be judgment in favor of Charles Carter & Company, Inc. as third party plaintiff and against National Surety Corporation as third party defendant for the full and true sum of $4,263.23 together with interest from date of judicial demand, and for all costs of these proceedings.

REVERSED AND RENDERED.


author: COLE, Judge.

text:
    Sharon R. HOLUBAR v. STATE of Louisiana et al.
    No. 13186.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    David L. Ray, Baton Rouge, of counsel for plaintiff-appellant Sharon R. Holubar, Individually, etc.
    Anthony J. Clesi, Jr., Baton Rouge, of counsel for defendants-appellants Debra S. Bridgers, Z. Ross Bridgers and State Farm Mut. Ins. Co.
    William J. Doran, Jr., Baton Rouge, of counsel for defendant-appellant State of Louisiana through the Dept, of Transp. & Development.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a wrongful death and survival action brought by the surviving spouse and two children of the decedent, Steven W. Holubar. Joined with it is a claim for injuries suffered by Shannon, Holubar’s minor daughter. Holubar was killed when the truck in which he and Shannon were riding collided with a Ford camper van driven by the defendant Debra S. Bridgers. The State through the Department of Transportation and Development (DOTD) was also named as a defendant on the ground that the traffic control devices in the vicinity of the accident were inadequate to warn motorists of abnormal, dangerous traffic conditions on that section of the highway.

The trial court found negligence on the part of both defendants. DOTD and Mrs. Bridgers appeal the findings of negligence against them and plaintiffs ask for an increase in the award for loss of future support.

The collision out of which this suit arose occurred in the late afternoon of Sunday, May 1, 1977, on U.S. Highway 190 on the Amite River Bridge. In the vicinity of the accident, Highway 190 is a divided, four-lane highway with separate bridges for eastbound and westbound traffic. On the Friday preceding the collision, the state police closed the south bridge, which carries eastbound traffic, to facilitate work on a gas line under the bridge. When Robert Adams, the district traffic engineer, was informed of the closure of the south bridge Friday morning, he and his crew went to the scene to erect signs to direct eastbound traffic on to the north bridge and to warn westbound vehicles that a section of the highway was carrying two-way traffic.

Plaintiffs and defendant Bridgers assert the signs erected for westbound motorists were deficient in informing motorists of the two-way traffic situation. Mrs. Bridgers, who was traveling to the west, testified that after passing a barricade, she moved into the left lane as she was unaware the road was carrying two-way traffic until she saw on-coming vehicles in her lane. At that point she was unable to avoid a head-on collision with Holubar. She explained she thought the barricade was there to mark an obstruction in the road, such as a pothole, and that she never saw any signs advising her of two-way traffic.

Photographs taken by Adams on the morning after the accident show the traffic control devices alleged to have been in place at the time of the accident. The first sign for the westbound motorist was a black-on-orange sign on the right side of the road with the legend “Left Lane Closed Ahead.” The second sign was also black-on-orange and read “Left Lane Closed 1000 Ft.” Next came two black-on-yellow signs, on opposite sides of the road, reading “Left Lane Closed 500 Ft.” Then began a taper of approximately 660 feet to channel traffic into the right lane. The taper consisted of smudge pots and cones. At the end of the taper was an orange-and-white, three-board barricade across the left lane. Shortly before the barricade, there was a 24" X 30" black-on-white “Two Way Traffic” sign on the right shoulder. The barricade was placed a few feet before the entrance to the relief bridge. Between the relief bridge and the Amite River Bridge, a distance of approximately 816 feet, the road makes a curve to the right. On this stretch of road on the right shoulder facing westbound traffic, there were two more 24" X 30" black-on-white “Two Way Traffic” signs. These were the only signs for westbound traffic prior to the point of collision.

Adams and the three expert witnesses in traffic engineering compared the signs erected by DOTD with those recommended by the Department of Highway’s Traffic Control Devices Manual. None of the traffic control devices used were in strict compliance with the manual. However, as DOTD correctly points out, failure to comply with the manual does not constitute negligence per se. Norris v. State, 337 So.2d 257 (La.App. 3d Cir. 1976).

The standard to which DOTD is held has been stated by this court as follows:

“No hard-and-fast rule can be laid down as to the type of warning which should be given other than that the warning should be of a size and nature commensurate with the danger ahead, and they should be reasonably adequate for the intended purpose. In determining what is reasonable warning, the place at which the danger exists, the nature of the road, and the general situation and circumstances surrounding it are to be taken into consideration, as are also the kind of travel and the speed at which vehicles will probably travel on the road.”

Edwards v. State, Department of Highways, 271 So.2d 672, 676 (La.App. 1st Cir. 1972).

Plaintiffs’ experts, Nathan Ficklin and Duane Evans, testified that the signs used were inadequate and that the lack of effective warning devices was a cause of the collision. Both thought that due to the curve, passing should have been prohibited by the use of “Do Not Pass” signs on both shoulders along with temporary striping. They also felt there was inadequate warning of the two-way traffic situation after the barricade. Ficklin and Evans stated it would not be unusual for a motorist in the left lane traveling along a right curve to miss a black-and-white “Two Way Traffic” sign located on the right shoulder. They opined more “Two Way Traffic” signs, placed on both the left and right shoulders, should have been used and that instead of the rectangular black-on-white signs, DOTD should have erected larger diamond-shaped, black-on-orange signs with a symbol and word legend. Plaintiffs’ experts also pointed out that except for the three “Two Way Traffic” signs, the traffic control devices used were just like those employed to direct motorists around a bad pothole.

In contrast, Adams and Olin K. Dart, DOTD’s expert, testified the signs used gave sufficient warning to westbound motorists. However, both acknowledged the sign configuration recommended by the manual was preferable to that employed by Adams. Adams admitted he would have used the signs shown in the manual and “Do Not Pass” signs had those signs been available to him. But he made no effort to contact the central sign shop in Baton Rouge to see if the signs could be obtained.

Plaintiffs offered the testimony of several witnesses who had traveled this section of highway after the signs were erected on Friday. Some of these witnesses were in the vicinity when the collision occurred. Mr. and Mrs. Clifton Hufsteder testified that when they were driving west on Sunday, they had an experience very similar to that of Mrs. Bridgers, except they were fortunately able to avoid a collision. Mr. Hufsteder, the driver, said he pulled into the left lane after passing the barricade because he thought the barricade marked a pothole and he saw no signs indicating two-way traffic. It was only when his wife screamed that he realized there was oncoming traffic in his lane of travel. Alton Sullivan and his passenger Dwayne Cobb related that when they were traveling west to Baton Rouge on Sunday they too moved into the left lane after passing the barricade but were able to get back into the right lane when they spotted eastbound vehicles in their lane. They did not remember seeing any signs warning them of two-way traffic. Jack Dempsy was traveling eastward on Friday when he first encountered the closed bridge and the diversion of eastbound traffic. On a subsequent trip west to Baton Rouge on Saturday, he was aware of the two-way traffic situation but he witnessed another westbound vehicle move into the left lane after the barricade and narrowly avoid a collision. On the other hand, Pat Hicks, who testified for DOTD, stated she saw the signs warning westbound motorists of two-way traffic.

Mrs. Bridgers was unable to remember anything that happened after she passed the barricade and pulled into the left lane. Jack Dempsy testified Mrs. Bridgers tried to pass him before the relief bridge, but she had to pull back because of the barricade. After the barricade, she pulled past him on the left at 40 to 45 miles per hour. She stayed in the left lane and pulled 200 feet ahead. When the van was a short distance from the Amite River Bridge, Dempsy saw the van go out of control. Mrs. Bridgers lost control when she swerved to avoid hitting Pat Hicks, who was moving eastward in the same lane as the Bridgers’ van. Mrs. Hicks testified that when she first saw the van it was only about four car lengths ahead and had started to swerve. She estimated her speed at 45 miles per hour and put the van’s speed at 60 to 70 miles per hour. After the van passed, she looked in her rearview mirror and saw the van, still out of control, collide with the truck behind her.

We think the trial court was correct in finding DOTD negligent. The signs erected after the barricade were woefully inadequate to warn reasonably prudent westbound motorists of the conversion of two-way traffic. A motorist whose attention was focused on the barricade and who then moved into the left lane could easily miss the three black-and-white “Two Way Traffic” signs on the right shoulder. There was certainly nothing about the barricade or the preceding signs and markers which would inform motorists of the dangers past the barricade.

On the question of Mrs. Bridgers’ negligence, we find manifest error in the holding of the trial court. The trial court listed three negligent acts by Mrs. Bridgers: (1) driving at an excessive rate of speed under the circumstances; (2) keeping an improper lookout; and (3) failing to keep her vehicle under proper control. The record does not sustain these findings.

It is clear the trial court did not think Mrs. Bridgers was negligent in failing to see the signs warning of two-way traffic. The court characterized the witnesses who had missed these signs as “reasonably prudent.” In light of her reasonable belief that she was traveling on a four-lane highway, Mrs. Bridgers’ actions were not imprudent. There is nothing to indicate Mrs. Bridgers should have seen the on-coming traffic sooner. While it is true she lost control of her vehicle, she was merely trying to extricate herself from an emergency situation which had been created by the negligence of DOTD. Her speed, under the circumstances as she reasonably perceived them, was not so excessive as to constitute negligence. The trial court was in error to judge her actions against the standard of a driver who was aware of the conversion of two-way traffic.

We find no abuse of discretion in the trial court’s award for loss of future support. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The court awarded the two children $50,000 each for loss of support and gave a lump award of $250,000 to the surviving spouse for loss of future support, love and affection. $28,908 was awarded to cover loss of support for the period between the accident and trial.

Plaintiffs complain the sum awarded is at least $150,000 less than that calculated by their expert in economics. However, it is a well-settled rule that future loss of earnings cannot be calculated with absolute, mathematical certainty and that damages for future loss are to a certain extent speculative in character. In fixing quantum, the court is not bound by mathematical formulae as such things only serve as guideposts and checkpoints in detecting the reasonableness of the award. The most the courts can do is to exercise sound judicial discretion and award such amount as, all the circumstances considered, may seem, just to both litigants. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968); Roundtree v. Technical Welding and Fabrication Company, Inc., 364 So.2d 1325 (La.App. 4th Cir. 1978); Aymond v. State, Department of Highways, 333 So.2d 383 (La.App. 3d Cir. 1976). Considering the decedent’s earnings at the time of his death, his potential for earning and his education and background, we conclude the award to be adequate.

For the foregoing reasons, the judgment below is affirmed in part and reversed in part. DOTD is cast for court costs in the amount of $969. Plaintiffs are to pay all remaining costs.

AFFIRMED IN PART and REVERSED IN PART.

      . Also sued were Mrs. Bridgers’ husband, Z. Ross Bridgers, and her insurer, State Farm Mutual Automobile Insurance Company. The trial court dismissed the claim against Mr. Bridgers; this ruling is not disputed on appeal.