author: LEAR, Judge.

text:
    Dexter SMITH v. LOUISIANA MUD COMPANY, INC.
    No. 14027.
    Court of Appeal of Louisiana, First Circuit.
    March 16, 1981.
    John T. Pettigrew, Houma, for plaintiff and appellant.
    Philip J. McMahon, Houma, for defendant and appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This is a workmen’s compensation suit involving only the issue of whether the plaintiff proved disability by a preponderance of the evidence.

The record indicates that on or about January 20, 1978, plaintiff was riding in a truck owned by his employer. He was seated on a board between the seats when the truck hit a bump at a railroad crossing, causing plaintiff to fall backwards, allegedly injuring his back.

The defendant paid compensation for twelve weeks and then terminated it. On January 19, 1979, plaintiff filed suit, asking for benefits for total and permanent disability, penalties and attorney’s fees. The court denied recovery. We agree.

Plaintiff complained of back injuries and was seen by a doctor at the employer’s request. This doctor referred, him to Dr. Cenac, an orthopedic surgeon. After conservative treatment, and a negative lumbar myelogram, Dr. Cenac, on May 1, 1978, discharged the plaintiff to return to his former occupation, assigning no disability. Thereafter, he was examined by several other orthopedic surgeons, none of whom could find any positive evidence of disability. An electromyographic study and x-rays revealed no positive findings.

In a written opinion, the trial court stated:

“It cannot be said that Smith did not have the benefit of expert medical opinion. He has been examined by no less than four orthopedic surgeons over the period of the last two and one-half years. None of these doctors were able to find any organic reason for Mr. Smith’s continued complaints of pain.”

Although procedural rules are liberally construed in complaint’s favor in workmen’s compensation cases, claimant still bears the burden of proving his case by a preponderance of the evidence, as in other civil cases. Prim v. City of Shreveport, 294 So.2d 421 (La.1974); Johnson v. Ascension Parish School Board, 342 So.2d 1139 (La. App. 1 Cir. 1977).

The judge further noted that Smith was an outpatient at the Terrebonne Mental Health Clinic and found this fact was significant as a possible explanation for his chronic complaints. It is also significant to note that Smith worked for about a year doing similar work for another employer after the alleged injury.

For the above reasons, the judgment of the trial court is affirmed; plaintiff is to pay all costs.

AFFIRMED.

      . Doctors Dexter Gary, Gary T. Guidry, Claude S. Williams and Pete H. Rhymes.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    Donald Ray JAMES, Sr., et ux. v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS et al.
    Writ Docket No. 14383.
    Appeal Docket No. 14393.
    Court of Appeal of Louisiana, First Circuit.
    March 16, 1981.
    John W. Wilbert, III, Plaquemine, for plaintiffs-appellees.
    James E. Shields, New Orleans, for defendants-appellants.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Defendant-relator, Charity Hospital of Louisiana at New Orleans, has sought supervisory writs from this court to review the ruling of the trial court overruling its exception of improper venue. We granted the writ to review the entire matter and find the ruling to be in error and therefore issue a writ of mandamus ordering the trial court to transfer the case, Docket No. 14,-383, to the court of proper venue or to dismiss the suit without prejudice.

A review of the proceedings to date reveals that plaintiffs, Donald Ray James, Sr. and his wife, Cynthia Asberry James, filed suit on October 9, 1979, in the Eighteenth Judicial District Court in Iberville Parish seeking damages for the wrongful death of their infant child. Named as defendants in the suit were Charity Hospital of Louisiana at New Orleans and an unnamed manufacturer of a heating lamp.

The petition alleges that the defendant, through its employees, allowed the heating lamp to remain on resulting in third degree burns to the three month old child’s abdomen and small intestines. The child died on October 9, 1978, as a result of the incident. Plaintiff alleges that the jurisdiction and venue of the Eighteenth Judicial District Court is based on La.R.S. 46:759 and La.C. C.P. art. 43.

Defendant-Charity filed exceptions of improper venue and nonjoinder of a necessary party. On November 5, 1980, the trial court without assigning written reasons denied the exception of improper venue but sustained the exception of nonjoinder of a necessary party.

Relator-Charity applied for and obtained both a devolutive appeal and a writ of certiorari from the judgment denying the exception of improper venue. The appeal is now lodged in this Court and will be considered along with the writ application since the issues involved are identical.

We will consider defendant’s appeal first. Appeals may be taken from a final judgment or from an interlocutory judgment which may cause irreparable injury. La.C.C.P. art. 2083. Thibaut v. Thibaut, 346 So.2d 809 (La.App. 1st Cir. 1977). A judgment of the trial court overruling an exception of improper venue is an interlocutory judgment. Glazer Steel Corp. v. Larose Shipyard, Inc., 368 So.2d 205 (La.App. 1st Cir. 1979). Because there has been no showing of irreparable injury in this case, we will dismiss defendant’s appeal, Docket No. 14,393, ex proprio mota. La.C.C.P. art. 2162; Bunkie Bank & Trust v. Avoyelles Parish Pol., 347 So.2d 1305 (La.App. 1st [3rd] Cir. 1977).

Our next consideration is the defendant’s writ application. The issue in this case revolves around whether La.R.S. 46:759 provides an additional parish of venue where Charity Hospital can be sued or whether its intended purpose is a waiver of sovereign immunity of Charity Hospital.

The pertinent provisions of La.R.S. 46:759 and of La.C.C.P. art. 43 read as follows:

La.R.S. 46:759:

“The Charity Hospital of Louisiana at New Orleans may sue and be sued, in all affairs and actions whatever, before any of the courts of the state.”

La.C.C.P. art. 43:

“The general rule of venue provided in Article 42 are subject to the exceptions provided in Articles 71 through 83 and otherwise provided by law.”

Plaintiffs contend that the phrase “before any court of this state” is the phrase that needs to be construed instead of “may sue and be sued.” They contend that La.C. C.P. article 43 allows exceptions to the general venue provisions and that La.R.S. 46:759 is such an exception.

Defendant argues that the intent of the legislature when passing the statute was to waive the sovereign immunity that had prevented individuals from suing Charity Hospital. It avers that the case of White v. Charity Hospital of La. in New Orleans, 239 So.2d 385 (La.App. 4th Cir. 1970) is controlling in this instance.

We agree with defendant’s argument that the sole purpose of the statute was to waive the sovereign immunity of Charity Hospital and that the statute does not constitute an exception to the general venue provisions. Iberville Parish is thus not the proper venue for this action. (See La.C. C.P. articles 42, 73, and 74).

For the reasons assigned, the appeal of defendant in Docket No. 14,393 is hereby dismissed. A writ of mandamus in writ application, Docket No. 14,383, is hereby ordered directing the trial court to sustain the exception of improper venue and to either transfer the case to the proper venue or dismiss the suit in accordance with La.C. C.P. article 121.

APPEAL DISMISSED, WRIT OF MANDAMUS ORDERED.


text:
    Dennis P. BILLIOT et al. v. ALTON’S BAKERY OF MORGAN CITY, INC.
    No. 14006.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 1981.
    J. P. Morelia, Patterson, for plaintiffs.
    Kim P. Stansbury, Lippman, Mahfouz & Martin, Morgan City, for appellant-defendant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This is an action for workmen’s compensation benefits. Plaintiffs, Dennis P. Billiot and Lucille A. Billiot, were granted judgment against Alton’s Bakery of Morgan City, Inc., awarding benefits at the rate of $141.00 per week from December 28, 1978 to April 19,1979, with legal interest on past due payments, medical expenses, statutory penalties, attorney’s fees and costs (including expert witness fees and deposition costs). Defendant has devolutively appealed, and plaintiffs have answered. We affirm.

The plaintiffs assert that Mrs. Billiot sustained disabling injuries to her back on November 27, 1978, when she slipped and fell at the business establishment of Alton’s Bakery while in the course and scope of her employment as assistant manager of the bakeries owned by her employer. At the time of her fall, Mrs. Billiot was attempting to move a heavy donut fryer. As a result of this accident she suffered a lower back injury. At the time of her fall, there were two young boys, who were hired part-time by her to help her rearrange the back room for a donut operation, present in the room but in another section of the room moving equipment. Her son, Eugene Billiot, who was 15 years old, was in the bakery helping to clean up another part of the bakery. None of these helpers seemed to remember the accident, although Eugene testified that one of the boys told him his mother had fallen. Mrs. Billiot reported the fall to Alton Dinger, the owner of the bakery, as soon as she saw him the next morning. He suggested she go to the doctor; however, Mrs. Billiot thought that she was not hurt so she did not seek medical attention until some weeks afterwards. In fact, she was able to work the next day, but the pain became so severe that she was eventually forced to go to the doctor. She first saw Dr. Melvin Bourgeois on December 11,1978. Then she went to Dr. Bourgeois’ partner, Dr. Robert Blereau, who hospitalized her for two weeks. The doctors diagnosed her condition as a lumbosacral strain. While in the hospital, Mrs. Billiot was treated conservatively and administered analgesics. She was also seen by Dr. Jeffery Fitter, an orthopedic surgeon of Morgan City, who confirmed the diagnosis and treatment of the general practitioners. The record reflects that Mrs. Billiot is a hard-working woman who has been the sole support of her invalid husband and several children for a long period of time.

In the case at bar the trial judge, in a well-reasoned oral opinion, recognized that the testimony of Mrs. Billiot alone was sufficient to establish the occurrence of an accident. The principle regarding the sufficiency of the employee’s testimony alone is that such testimony, if plausible, consistent and supported by corroborating circumstances, is sufficient to constitute a preponderance of the evidence and prove the com-pensable accident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Gurry v. Allied Metals, Inc., 379 So.2d 871 (La. App. 4 Cir. 1980).

As did the trial judge, we find sufficient corroboration of the employee’s testimony in this instance. Mrs. Billiot’s testimony was clear, plausible and consistent. In addition, we note that her report of the fall is corroborated by her employer (Mr. Dinger). When she first saw him the next morning, she told him of the accident. The orthopedist confirmed the injury and considered her “sincere in her complaints.” In her history to Dr. Bourgeois on December 11, 1978, she told him that she had fallen about two weeks earlier at Alton’s Bakery and injured herself. Moreover, we note that Mrs. Billiot’s work record, as well as her conduct and attitude following the injury, is indicative of honesty and integrity. In the instant ease it is apparent that the trial judge believed the employee’s testimony. The other evidence does not offset these favorable circumstances and the totality of the evidence proves the employee’s compensable accident by a preponderance of the evidence. We thus find no merit in appellant’s contention that the employee failed to prove that an accident occurred at Alton’s Bakery on the night of November 27, 1978, resulting in back injury to the employee.

Appellant further asserts that even if an accident occurred as testified to by Mrs. Billiot such accident did not arise out of her employment, because Mr. Dinger did not specifically authorize such activity. The facts clearly show that acting as assistant manager, in which job she had considerable discretion in running the bakery, Mrs. Billiot, with her helpers, was engaged in rearranging the back room of the bakery so that donuts could be made on the premises as part of the bakery operation. It is of no consequence that Mr. Dinger did not expressly order the particular activity. The fact that this industrious lady was willing to work long hours late into the night and to show initiative on her job is to her credit; and certainly, cannot be used to penalize her. We find that Mrs. Billiot was working at her job within the course and scope of her employment at the time of her fall and injury. See Malone-Johnson, Workers’ Compensation Law and Practice, § 161, p. 303.

The next issue before us is whether the trial court erred in awarding penalties and attorney’s fees. The trial judge found that the employer knew of the injury, the medical treatment, and the hospitalization, yet had failed to make any effort to ascertain the extent of her injuries or to compensate her in any way. There was ample notice to the employer of the injury. Despite this, Alton’s Bakery denied compensation and still does so. The failure and refusal to undertake an investigation of the employee’s claim and the denial of compensation benefits in light of the employer’s knowledge of facts makes the refusal of benefits arbitrary and capricious and subjects the defendant to statutory penalties and attorney’s fees. LSA-R.S. 23:1201.2; Self v. Riverside Companies, 382 So.2d 1037 (La.App. 2 Cir. 1980), writ denied, 385 So.2d 793 (La.1980). Under the circumstances of this case we consider the award of penalties and the award of attorney’s fees in the amount of $1,500.00 to be reasonable and appropriate.

In the answer to this appeal, the plaintiffs seek an increase in the award and additional attorney’s fees. The record does not support an increase in the award. The trial court found that there was no medical evidence to show that Mrs. Billiot was disabled beyond April 19, 1979. The court allowed benefits during the period of disability. Additional attorney’s fees on appeal must be denied because the plaintiff is seeking additional relief denied at the trial level and denied on appeal. Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133 (La.App. 3 Cir. 1979).

The rule of appellate review dictates that we must give great weight to the trial judge’s fact conclusions, especially where credibility is concerned. We find that there is sufficient evidence in the record to support the conclusion of the trial judge. Accordingly, we affirm the judgment appealed at appellant’s costs.

AFFIRMED.


text:
    REPP PERSONNEL SERVICE, INCORPORATED v. Lernes DESHAUTELLES.
    No. 13911.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 1981.

      Sumpter B. Davis, III, Baton Rouge, for plaintiff and appellant.
    Ralph Tureau, Gonzales, for defendant and appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Appellant, Repp Personnel Service, Inc. (Repp) brought suit against Lernes Deshau-telles, appellee herein, based on an alleged breach of an oral contract. In the alternative, if no contract was found, appellant sought recovery based on an open account theory.

In response to an advertisement for a job in the Bahamas, Deshautelles visited Repp and filled out an application. This particular application contained questions only as to education, prior experience and personal information. The job that appellee sought was fee-paid by the potential employer. Therefore, appellee did not sign a written contract with Repp obligating himself to pay a fee for job placement.

Thereafter, Repp informed Deshautelles, by telephone, of another job possibility at the Hilton Hotel. This job was not fee-paid by the potential employer. Deshautelles obtained the job and subsequently refused to pay a placement fee to the employment agency.

The trial judge found for Deshautelles, denying recovery to Repp based on either an oral contract or open account theory.

On appeal, Repp contends that the trial judge erred in: (1) not finding a compensa-ble verbal contract; (2) not applying the theory of “account rendered” and (3) not applying the doctrine of quantum meruit in the event that an oral contract was not found. We affirm.

We agree with appellee that this dispute is governed by La.R.S. 23:111 which has the effect of defeating appellant’s alleged specifications of error. In pertinent part La.R.S. 23:111 provides:

“No employment agency shall charge or accept a fee unless in accordance with the terms of a written contract with an applicant. Each applicant shall be given a copy of every contract executed between the employment agency and the applicant. Each such contract in addition to setting forth a copy of the agency’s filed fee schedule, shall provide: * * * ”

Appellant seeks to avoid application of La.R.S. 23:111 by contending that it is an affirmative defense that cannot now be asserted since it was not specially pleaded by Deshautelles in his answer to the suit.

Article 1005 of the Code of Civil Procedure provides that certain defenses must be specially pleaded. Since the list of affirmative defenses in C.C.P. art. 1005 is illustrative, certain criteria have been established for determining if a defense is an affirmative defense.

The Louisiana Supreme Court has stated that, “An affirmative defense raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff’s demand on its merits.” Webster v. Rushing, 316 So.2d 111 (La.1975).

Webster, supra, goes on to provide that, “The purpose of pleading a special defense is to give fair and adequate notice of the nature of the defense so that plaintiff is not surprised.”

In the instant case, the fact that there was not a written contract would not have raised new matter if affirmatively pleaded. Appellant did not sue on the basis of a written contract and never contended that one existed. On the contrary, under cross-examination, Mr. Repp admitted that a written contract did not exist. Therefore, the element of surprise is not a consideration and the lack of a written contract was not a new matter that should have been affirmatively pleaded, nor was appellee required to affirmatively plead the existence and application of La.R.S. 23:111. It is well established that the pleader is obliged only to make allegations of fact, not law. Code of Civil Procedure art. 854.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Followed by Court of Appeal, 1st Circuit: Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir. 1979); Langhans v. Hale, 345 So.2d 1226 (La.App. 1st Cir. 1977).


author:
EDWARDS, Judge.
      PONDER, Judge,

text:
    Aneice VAUGHN et al. v. William ROSS et al. LIBERTY MUTUAL INSURANCE COMPANY partial subrogee to the rights of/and William Ross v. Willie TYLER and Aneice Vaughn.
    Nos. 13759, 13760.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 1981.
    Douglas T. Curet, Hammond, for plaintiffs in No. 13759 and for defendants in No. 13760.
    Ronald A. Curet, Hammond, Charles J. Ferrara, Metairie, for plaintiffs in No. 13759.
    A. Miles Platt, III, Metairie, for defendants in No. 13759.
    William V. Renaudin, Jr., New Orleans, for plaintiff in No. 13760.
    Before ELLIS, COVINGTON, LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

These consolidated cases involve an automobile collision which occurred in Tangipa-hoa Parish on April 20, 1977, during a light rain. One car, owned by Aneice Vaughn and driven by Willie Tyler, carrying as passengers Aneice Vaughn, Rhonda Vaughn and two others, was struck by the other car, owned by William Ross and driven by Michael J. Ross.

Aneice and Rhonda Vaughn brought suit against William Ross, Michael J. Ross and the Liberty Mutual Insurance Company. Aneice, by amended and supplemental petition, sought $2,000 in property damage, $12,000 in medical expenses and $120,000 in general damages for personal injuries. Rhonda sought $300 in medical expenses and $25,000 for personal injuries. Defendants answered with a denial and named Willie Tyler a third party defendant.

In a separate suit, later consolidated with the first, Liberty Mutual Insurance Company, as partial subrogee to the rights of William Ross, and William Ross sued Willie Tyler and Aneice Vaughn. Liberty Mutual sought $1,036.49 and Ross claimed $100, all for property damage to Ross’ car. In the second suit, Vaughn answered with a denial and Tyler was dismissed as a defendant when a declinatory exception of insufficiency of service of process filed on his behalf was maintained.

At trial, testimony elicited showed that the accident occurred on Louisiana Highway 1040, Old Baton Rouge Highway, in an area west of Hammond in the vicinity of Nell’s Cafe. The Vaughn car pulled out of Calvary Street and headed east on Hwy. 1040, a two-lane road. Ross’ car was also headed east on Hwy. 1040, but was somewhat behind the Vaughn automobile. When the Vaughn car began turning left, into the driveway of one Mrs. Johnson, Ross attempted to pass it by using the oncoming traffic, or left-hand, lane. The collision ensued with the front of Ross’ car striking the left front part of the Vaughn car.

Michael Ross’ version of the accident was that when the Vaughn car pulled onto Hwy. 1040, he, Ross, was only twenty-five to thirty-five yards distant and was traveling at a speed of between thirty-five and forty miles per hour in a fifty mile per hour zone. Ross further testified that to avoid a certain broadside collision, he honked his horn and pulled left to pass, but that within seconds the Vaughn car turned left and the collision occurred.

Aneice Vaughn, Rhonda Vaughn and Margaret Ann Vaughn, a third passenger in the Vaughn car, all testified that they heard a screeching of tires or brakes just before their car was struck. Rhonda Vaughn, a front seat passenger, testified, in direct contradiction to Ross, that Tyler had switched on his “blinkers” prior to turning left.

No reasons for judgment were provided by the trial judge. Evidently he evaluated the evidence and concluded that the accident had been caused by Michael Ross’ negligence.

Judgment was signed in favor of Aneice Vaughn and against Liberty Mutual Insurance Company, William Ross and Michael J. Ross in solido for $4,668.97 in special damages, $12,500 in general damages, interest and costs.

Judgment in Rhonda Vaughn’s favor and against the same defendants was for $500.

The suit of Liberty Mutual and William Ross against Aneice Vaughn was dismissed at plaintiff’s costs.

All parties have appealed.

Aneice and Rhonda Vaughn seek greater awards. Michael J. Ross, William Ross and Liberty Mutual seek a reversal on the issue of liability or, alternatively, a reduction in the judgment.

A review of the facts supports the trial court’s finding of negligence on the part of Michael J. Ross. We find no manifest error.

There was some conflicting testimony in the area of damages. Nevertheless, while somewhat high, the award remains, within the trial court’s “much discretion” and is not an abuse. LSA-C.C. Art. 1934.

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by William Ross, Michael J. Ross and Liberty Mutual Insurance Company.

AFFIRMED.

LOTTINGER, J., dissents for reasons assigned by PONDER, J.

PONDER, J., dissents and assigns reasons.

PONDER, Judge,

dissenting.

I dissent.

Aneice Vaughn, a passenger in her own car driven by Willie Tyler, testified that defendant’s car was several blocks away when they turned from a side street on to the highway. They were going only a short distance on the highway so the driver put the blinkers on. As they started to turn, they heard the screeching of brakes and were hit on the left front fender and door.

Rhonda Vaughn testified they were making a left turn after putting on the blinkers when she heard the screeching of brakes and they were hit on the side.

Margaret Vaughn testified they were making a left turn and she could hear screeching as soon as they turned.

Willie Tyler, the driver for Mrs. Vaughn, did not testify.

Michael Ross said he saw the Vaughn car coming out twenty-five to thirty-five yards away. Realizing that a collision might be imminent he pulled to the left and started around. Tyler started to make a left turn some ten to fifteen yards before a driveway.

The investigating trooper testified the debris was in the center of the roadway about sixty feet west of a small driveway.

The physical evidence, therefore, corroborates defendant’s evidence that Tyler, who did not testify, came into the left lane well before reaching the place he evidently intended to turn into.

Neither the trial court nor the majority has given any legal or factual basis for finding William Ross, the father of twenty-two year old Michael Ross, liable. The allegations of William Ross’ negligence were:

“(2) Negligence of William J. Ross:
A. Failing to exercise proper control and supervision of his vehicle, in allowing same to be used without proper supervision and safeguards for the public;
B. Negligently allowing his automobile to be driven by one he knew, or should have known, did not possess the requisite skill and judgment to operate same as indicated by the acts of negligence set forth herein by said driver.”

I find no evidence to support these contentions.

I therefore believe that the trial court manifestly erred.


text:
    Robert RAWLS v. Joseph DUGAS. BELLEFONTE INSURANCE COMPANY v. Gary J. DUGAS et al. Valmon L. WATTS and Lonnie W. Watts v. STATE FARM INSURANCE COMPANY et al. Bruce ALBRITTON v. Gary DUGAS.
    Nos. 13705 to 13708.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 1981.
    Writ Denied May 1, 1981.

      James E. Kuhn, Denham Springs, for Valmon L. Watts and Lonnie Wayne Watts.
    David M. Vaughn, Baton Rouge, for Bel-lefonte Ins. Co. and Barksdale Enterprises of Denham Springs, Inc. and James Barks-dale.
    Frank A. Fertitta, Baton Rouge, for State Farm Mut. Auto. Ins. and Gary Du-gas.
    William N. Faller, Baton Rouge, for Bruce Albritton.
    James E. Moore, Baton Rouge, for Houston Gen. Ins. Co.
    John S. White, Jr., Baton Rouge, for Bruce Albritton and State Farm Mut. Auto. Ins. Co. as his insurer.
    J. Donald Cascio, Denham Springs, for Livingston Parish School Bd.
    James R. Coxe, III, Baton Rouge, for Robert W. Rawls.
    Robin W. Poirier, Baton Rouge, for James H. Barksdale.
    Calvin E. Hardin, Jr., Baton Rouge, for “Kemper Ins. Co.” and Lumbermens Mut. Cas. Co. and Julie Watson and Robert E. Watson.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

In these consolidated tort actions, this court is invited to expand the application of the doctrine of respondeat superior to school boards whose athletes negligently injure another while engaged in off-campus, non-competitive activity. After careful consideration and prolonged deliberation, we decline and, therefore, affirm the judgment of the lower court.

Robert W. Rawls, plaintiff-appellant, and others, filed this suit against Joseph Du-gas, Julie Watson and their liability insurers alleging injuries and damages. In several of the petitions filed, the Livingston Parish School Board was made a defendant. Appellants assert on appeal that they are aggrieved by the decision of the lower court which dismissed their demands against defendant-appellee, the Livingston Parish School Board.

By deposition, the following uncontro-verted facts were established:

In August, 1978, prior to the opening of school, the Walker High School football team of Walker, Louisiana, consisting of some fifty players, was instructed to obtain physical examinations as a requirement for team participation. This requirement is mandated by the rules and regulations of the Louisiana High School Athletics Association, an organization which regulates and coordinates high school athletics throughout the State of Louisiana. The boys were told that a Dr. Walker would administer a physical examination without charge at his office in Denham Springs, Louisiana, several miles away. They were informed of this at a practice session on the school campus on the morning of August 17, 1978, and instructed that the examinations would commence at one o’clock that afternoon. Depositional testimony further established that the boys were informed that the physical examination could be taken on another day or administered by a different doctor. However, such examinations might involve the payment of a fee to the examining doctor. The boys were informed that, until they completed their physicals, they could not participate as football players. They were informed that they would have to obtain transportation to Dr. Walker’s office that day. Thereafter, they were released.

Bruce Albritton, Lonnie Watts, and Gary Dugas mutually decided that day to ride to the doctor’s office together. Neither of these boys had, on any prior occasion, manifested rash or irresponsible behavior to any member of the team coaching staff. Dugas drove the vehicle from Walker, Louisiana, to Dr. Walker’s office in Denham Springs, Louisiana, and, thereafter, started on the' return trip to Walker. It was on this return trip that the automobile, driven by Dugas, swerved into the left lane and collided with a pickup truck which was being driven by James Barksdale. Robert W. Rawls was a passenger in the pickup. Julie Lynn Watson was operating a vehicle which was trailing the Dugas vehicle. She rear-ended the Dugas vehicle after it had come to a stop. The collision inflicted injuries upon various occupants of all vehicles.

The Livingston Parish School Board filed a motion for summary judgment contending that no genuine issue as to a material fact existed concerning the board and that it was entitled to a dismissal of all claims against the board as a matter of law. The trial court granted the motion, dismissed the school board, and plaintiffs have perfected this appeal.

Succinctly, appellants’ theory of recovery against the school board was based on their contention that the board had an obligation to provide its students/football players with transportation to the doctor’s office and that, therefore, Gary J. Dugas was acting as the agent of the Livingston Parish School Board when he transported himself and others to the doctor’s office. Thus, the board was requested to impose close supervision in order to avoid the very kind of accident which forms the basis of this suit. Appellants argue that any act of negligence committed by Dugas — and implied by any student under these circumstances — is imputable to the board and renders it vicariously liable in the premises.

Appellants rely on the case entitled Hanson v. Reedley Joint Union High School District, 43 Cal.App.2d 643, 111 P.2d 415 (1941). It purports to discuss the duty of a teacher to adequately and properly supervise students. We did not find Hanson to be applicable. The school board has no more of a duty to transport students to a doctor's office to obtain physical examinations than it has to transport students to a store to obtain pen and paper with which to prepare work assignments. The ultimate responsibility rests, we believe, with the parents and students themselves. This case, therefore, does not raise any real issue of negligent supervision by agents of the school board. We are given no authority, nor is there any, in support of the position taken by those seeking to ascribe liability to the Livingston Parish School Board under the circumstances of this case.

Therefore, for the foregoing reasons, the ruling of the trial court granting the motion for summary judgment is affirmed at appellants’ costs.

AFFIRMED.

      . The consolidated tort suits involve the claims of Robert Rawls, a passenger in the Barksdale pickup truck; Bellefonte Insurance Company as the subrogated workmen’s compensation and collision insurer of Barksdale Heating and Air Conditioning and James .H. Barksdale; Val-mon L. Watts, the father of Lonnie Wayne Watts, and Lonnie Wayne Watts, the back-seat passenger in the Dugas vehicle; and Bruce Al-britton, the front-seat passenger in the Dugas vehicle.


text:
    LOUISIANA NATIONAL BANK v. Chester Daniel HEBERT, Jr.
    No. 12274.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 23, 1981.

      David B. Spencer, New Orleans, for plaintiff-appellant.
    Stephen R. Perez, Chalmette, for defendant-appellee.
    Joseph F. Grefer, Gretna, for garnishee.
   ORDER

This record was examined and revealed that by a consent judgment on July 7,1980, the parties agreed to try the preliminary injunction matter on September 8, 1980. On September 8,1980, testimony was taken and the matter was continued to September 29, 1980. On September 29, 1980, the injunction was continued to January 29,1981.

On February 2, 1981, this court ordered that appellant, Louisiana National Bank, show cause on or before February 13, 1981, why this appeal should not be dismissed for lack of jurisdiction. The appellee was also invited to respond to appellant’s brief not later than February 20, 1981.

Appellant has complied with this order, arguing in brief that although there is no final, signed judgment in the record, this does not render the appeal premature because a preliminary injunction is governed not by LSA-C.C.P. art. 1911, which requires a final, signed judgment before an appeal can be taken, but by LSA-C.C.P. art. 3612, which grants an appeal to a final or preliminary injunction as a matter of right.

LSA-C.C.P. art. 1911 states:

“Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.” (Emphasis ours.)

LSA-C.C.P. art. 2083 states:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.” (Emphasis ours.)

Although, as argued by appellant, LSA-C.C.P. art. 3612 allows an appeal as a matter of right to a preliminary or final injunction, it does not change its status as an interlocutory judgment, and, therefore, does not remove it from the requirements of LSA-C.C.P. art. 1911, that there must be a signed judgment before the issue is ap-pealable.

It should be noted that Article 1911 provides “For the purpose of an appeal as provided in Article 2083 * * *.” Article 2083 is in Book III and Article 3612, upon which appellant relies, states in its last paragraph that the procedure for an appeal in injunctive matters “shall be as provided in Book III.”

Even where a minute entry, as noted by appellant in the present case, reflects that the district court judge rendered judgment orally, where there is no signed judgment in the record, there is no final judgment from which appeal to a Court of Appeal can be taken, the appeal is premature, and the Court of Appeal is required ex proprio motu to dismiss the appeal. Gay v. Gay, 193 So.2d 537 (La.App.3d Cir. 1967).

IT IS THEREFORE ORDERED by this court that the appeal in the above entitled cause be and is dismissed as premature, as to plaintiff and as to all other demands, principal and incidental, each party to bear his own costs.

/s/ Lawrence R. Chehardv JUDGE

/s/ L. Julian Samuel JUDGE

/s/ Thomas J. Kliebert JUDGE


author: FORET, Judge.

text:
    Susan Daniel MILLER, Plaintiff-Appellant, v. FOGLEMAN TRUCK LINES, INC. et al, Defendants-Appellees.
    No. 8051.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Writ Denied June 5, 1981.

      Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for plaintiff-appellant.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for defendants-appel-lees.
    Before CULPEPPER, FORET and STOKER, JJ.
   FORET, Judge.

Susan Miller (Plaintiff) brought this wrongful death and survival action to recover damages she sustained and for personal injuries suffered by her husband, David Miller, who died as a result of a vehicular collision. Defendants are Harvey Delling, the driver of the other vehicle, and his employer, Fogleman Truck Lines, Inc. (Fogleman), the owner of that vehicle, together with the Empire Fire and Marine Insurance Company (Empire), their automobile liability insurer. The Procter and Gamble Manufacturing Company (Procter and Gamble) was also named as a defendant, but plaintiff voluntarily dismissed her action against it prior to trial.

The action was tried by a jury which returned a unanimous verdict in favor of the remaining defendants. Plaintiff appeals and presents two issues:

(1) Whether the instructions given by the trial court to the jury were so inadequate and erroneous as to preclude the jury from returning a proper verdict; and
(2) Whether the jury’s finding in favor of defendants on the issues of negligence and strict liability is manifestly erroneous.

FACTS

David Miller, plaintiff’s decedent, died as a result of injuries sustained in a vehicular collision which occurred on January 31, 1979, at approximately 7:05 P.M. The accident happened near the intersection of U.S. Highway 165 and La. 116 just north of Pineville, Louisiana, in Rapides Parish. That intersection is controlled by a set of three phase, semaphore traffic lights.

Harvey Delling was driving a ten-wheel truck-tractor without a trailer and was north-bound on U.S. 165 as he approached the above mentioned intersection. The approach from the south on U.S. 165 consists of a hill located about a quarter of a mile before the intersection, which gently slopes down toward the intersection, and the roadway, which is relatively straight. The entrance to a soap manufacturing plant owned by Procter and Gamble is located at the intersection and Delling had brought his truck to a near stop intending to turn left into the plant.

David Miller, meanwhile, was also northbound on U.S. 165 behind Delling. Miller topped the hill as he approached the intersection from the south and, apparently, failed to see Delling’s truck in time to stop. Miller’s automobile slammed into the rear of Delling’s truck and knocked it some thirty-six feet, even though the truck’s brakes locked upon impact. The front end of Miller’s automobile was severely damaged and he was pronounced dead at the scene by the coroner.

Plaintiff alleges that defendants had been negligent in allowing an improperly maintained vehicle to travel on the highways. Plaintiff further alleged that there were no operable tail lights on the truck and that this constituted a defect which created an unreasonable risk of harm to others. Therefore, plaintiff also sought to hold defendants strictly liable for her damages. The action was tried before a jury which returned a verdict in favor of defendants. The trial court, pursuant to the jury’s verdict, rendered judgment dismissing plaintiff’s action and plaintiff was granted a devolutive appeal from that judgment.

JURY INSTRUCTIONS

Plaintiff contends that it was error for the trial court to refuse to instruct the jury that the mere fact that a driver runs into the rear of another vehicle does not mean that he is automatically negligent.

In a jury trial, the judge is not required to give the precise instructions submitted by either party, but he must give instructions which properly reflect the law applicable in light of the pleadings and facts in each particular case. If instructions concerning negligence and liability are confusing or misleading, or omit an applicable essential legal principle, such instructions constitute reversible error. Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975); Beck v. Lovell, 361 So.2d 245 (La. App. 1 Cir. 1978), writ denied, 362 So.2d 802 (La.1978).

The record indicates that the trial court did instruct the jury in the following manner, which we find adequately protected the plaintiff from any pre-conceived notions the jurors may have had with respect to the negligence of the driver who runs into the rear of another vehicle. That instruction was given as follows:

“Now, the mere fact that an accident has happened is not proof of negligence. Negligence is a question of fact and it is fundamental in the law that those who allege negligence must prove it. Therefore, the question of whether the defendant was negligent, as well as the question of whether David Miller was independently or contributorily negligent, are questions of fact which you must decide in light of all of the evidence, keeping in mind the legal principles I shall explain to you and which may or may not be applicable depending upon your determination of the facts.”

Plaintiff also objects to the failure of the trial court to instruct the jury concerning the presumption of self-preservation accorded a deceased. The presumption that an individual acted with due care for his own safety is only applicable where there are no eyewitnesses. Callahan v. Town of Bunkie, 287 So.2d 629 (La.App. 3 Cir. 1973), writ refused, 290 So.2d 905 (La. 1974). We find that the presumption is inapplicable in the case before us as there were three eyewitnesses to the accident who testified at the trial of this matter.

Plaintiff’s last contention is that the trial court erroneously instructed the jury on the defense of “fault of the victim” to strict liability when it charged the jury as follows:

“Now, a defense which the law permits a person in custody of a thing which poses an unreasonable risk of harm to raise is that the injured person was himself at fault and therefore helped cause his own injury. If you conclude that David Miller’s conduct in this instance was a substantial deviation from the conduct we would normally expect of a reasonably prudent person, then you must return a verdict for the defendant. On this defense, the defendant has the burden of proof and must convince you by reasonable preponderance of the evidence that David Miller acted in the manner I have just described.”

Plaintiff argues that this instruction sets out the law with respect to the defense of “contributory negligence” rather than “fault of the victim” and is erroneous since the contributory negligence of the plaintiff is no defense to strict liability.

This Court has had no occasion to discuss the defense of “fault of the victim” to strict liability under LSA-C.C. Article 2317, but, we have discussed the defense under several other articles which impose strict liability.

We found no harm in the trial judge’s use of contributory negligence terminology in finding that the victim’s fault exculpated the defendant from liability under LSA-C.C. Article 2321 (which imposes strict liability for damage caused by animals) in Parker v. Hanks, 345 So.2d 194 (La.App. 3 Cir. 1977), writ refused, 346 So.2d 224 (La. 1977). Subsequently, we considered the defense of victim’s fault under LSA-C.C. Article 2318 (which imposes strict liability for the acts of minors) finding that the plaintiff who failed to look for puddles of dish-washing liquid upon entering a kitchen after she had observed a child squirting the liquid on the floor and slipped in a puddle exhibited sufficient substandard conduct to amount to victim’s fault. See Hebert v. United Services Automobile Association, 355 So.2d 575 (La.App. 3 Cir. 1978), writ denied, 356 So.2d 1002 (La.1978).

We have also considered the defense of “third party fault” under LSA-C.C. Article 2317 and have found that such fault must be a substantial cause of the accident to give rise to the defense. Panek v. Gulf Insurance Company, 341 So.2d 46 (La.App. 3 Cir. 1976); Kasperski v. Patterson Services, Inc., 371 So.2d 1254 (La.App. 3 Cir. 1979), writ denied, 373 So.2d 530 (La.1979).

Adequate instructions are those instructions which fairly and reasonably point up the issues presented by the pleadings and evidence and which provide correct principles of law for the jury’s application thereto. Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969); Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La. App. 3 Cir. 1978), writ denied, 360 So.2d 1178 (La.1978). The charge given the jury by the trial judge was to the effect that David Miller’s conduct would have to amount to a substantial deviation from the conduct of a reasonable, prudent person to constitute “fault of the victim”.

We hold that the trial judge’s instructions adequately explained to the jury the meaning of “fault of the victim” in light of the jurisprudence.

DEFENDANTS’ NEGLIGENCE

This Court is once again faced with the problem of attempting to determine exactly what findings were made by a jury, for purposes of review, because of the form used by the jury in returning its verdict.

Plaintiff argues that the jury committed manifest error in finding for defendants and that the jury’s basis for such a finding must have been that David Miller was guilty of contributory negligence. Plaintiff then argues that there was no evidence presented to the jury upon which it could base such a finding and, therefore, it committed manifest error in doing so.

Our review of the record discloses no support for plaintiff’s argument that the jury reached the issue of contributory negligence after finding defendants guilty of negligence. There were sharp conflicts in the testimony given by some of the eyewitnesses to the accident. Harvey Delling (the driver of the truck) testified that he had fixed lights on the truck prior to leaving Fogleman’s yard on a run to the Procter and Gamble plant. Yet, Henrietta Rambo, an eyewitness traveling in the opposite direction from Delling, testified that she looked back after passing the truck and saw no tail lights on it. One witness testified that he heard decedent slam on his brakes immediately before the collision, while another witness testified that he could see no indication from decedent’s vehicle that its brakes had been applied.

The evidence does establish that for a distance of approximately a quarter of a mile, decedent had a clear and unobstructed view of the highway leading up to and beyond the intersection where the collision occurred. Further, a witness traveling behind the decedent stated that he could see defendants’ truck as soon as he topped the hill and that he could see the left-turn indicator on the truck operating. There were two lights located off of the highway right-of-way at the entrance to the Procter and Gamble plant and the color of the truck was white, although it had a lot of dirt on it.

We hold that there was evidence before the jury which, upon its reasonable evaluation of credibility, furnished a reasonable factual basis for its finding in favor of defendants and our review of the record establishes that this finding is not clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our holding is the same whether the basis of the jury’s finding is no negligence on the part of the defendants or that plaintiff’s decedent was guilty of contributory negligence.

STRICT LIABILITY

Plaintiff contends that the jury committed manifest error in finding no defect in the truck which created an unreasonable risk of harm to others or that the defense of “fault of the victim” was available to defendants. Plaintiff attempted to hold the defendants liable under LSA-C.C. Article 2317 and argued that the evidence established that the tail lights on the truck were inoperable at the time of the accident. Again, there was conflicting testimony presented to the jury as to the presence or absence of tail lights on the truck and whether they were operating at the time of the accident.

It is well settled that credibility evaluations in the face of conflicting testimony are the province of the finder of facts, and an appellate court may not reverse them in the absence of manifest error. See Canter v. Koehring Company, supra, its predecessors cited therein, and its progeny.

The evidence does indicate that the collision was an extremely violent one that totally destroyed the front end of the automobile driven by plaintiff’s decedent. Further, the automobile struck the rear of the truck with such force that it smashed the air brake drums and broke the rear axle and a torsion bar, and shoved the truck thirty-six feet.

Defendants argue that the tail lights were located on two brackets at the rear of the truck at the point where it was struck. They presented photographs of the scene which revealed the presence of debris strewn all over the highway at the collision site. They argue that no tail lights were found on the truck after the accident, but, considering the severity of the collision, this is understandable. We agree.

The state policeman who investigated the accident testified that he saw no indication of any tail lights on defendants’ truck. However, he also testified that he was unable to determine whether the ear driven by plaintiff’s decedent had any head lights because of the damage it received in the collision.

We hold that the record establishes that the jury’s findings in favor of defendants on the issue of strict liability is not clearly wrong. Arceneaux v. Domingue, supra; Canter v. Koehring Company, supra. Our holding is the same whether the jury’s finding is based on the absence of any defect in the truck or that plaintiff’s decedent was at fault in causing the collision.

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

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

AFFIRMED.

      . The instruction given by the trial court on this point of law is almost verbatim recital of the model jury instruction set forth in 2 La. Jury Instructions: Civil, Johnson, 307, which reads:
      “One of the defenses which the law permits a person in custody of a thing which poses an unreasonable risk of harm to raise is that the injured person was himself at fault and thereby helped cause his own injury. If you conclude that the plaintiff’s conduct in this incident was a substantial deviation from the conduct we would normally expect of a reasonably prudent person, or that the plaintiff fully understood the danger which was involved and then voluntarily exposed himself to the danger, then you must return a verdict for the defendant.
      On this defense, the defendant has the burden of proof, and must convince you by a reasonable preponderance of the evidence that the plaintiff acted in the manner 1 have just described.”

      . The First Circuit has found that the substandard conduct necessary to be considered contributory negligence is in some cases sufficient to amount to victim’s fault under LSA-C.C. Article 2317. See Korver v. City of Baton Rouge, Etc., 348 So.2d 708 (La.App. 1 Cir. 1977); Sullivan v. Gulf States Utilities Company, 382 So.2d 184 (La.App. 1 Cir. 1980).

      . The verdict form provides, in pertinent part, that:
      “ VERDICT
      WE, THE JURY, FIND FOR:
      The plaintiff_
      THE DEFENDANTS /
      There are no indications of any other findings which may have been made by the jury in the record.

      . The verdict form used by the jury again presents a problem here since there is no indication as to whether the jury found strict liability against defendants or the presence of the defense of “fault of the victim” which was available to defendants. See Footnote # 3, supra.

      . “Art. 2317. Acts of others and of things in custody
      Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”


author: CUTRER, Judge.

text:
    Kathryne GRIFFIN et al., Plaintiffs-Appellants, v. Sandra K. BETHARD et al., Defendants-Appellees.
    No. 8062.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Eugene P. Cicardo, Alexandria, for plaintiffs-appellants.
    McLure & McLure, John G. McLure, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

Plaintiff, Kathryne Griffin, and her husband filed suit for damages incurred as a result of a rear-end collision which involved three vehicles. Plaintiff had stopped her vehicle on Louisiana Highway 71 in the town of Tioga and was preparing to make a left turn. Betty Richey stopped her vehicle behind the plaintiff. A third vehicle driven by defendant, Sandra Bethard, failed to stop, struck the Richey vehicle in the rear and caused the Richey vehicle to strike the rear of plaintiff’s car. Defendant and her insurer, United Services Automobile Association, were made defendants.

The suit was tried by a jury. At the close of the evidence the plaintiff moved for a directed verdict on the question of liability. This was not opposed by the defendants. The trial court granted the directed verdict, leaving only the question of quantum to be decided by the jury. The following verdict was returned by the jury:

“We, the jury, find for the plaintiff, Charles Griffin and Kathryn Griffin, in the following amounts:
Special Damages $ 700.00
General Damages $ - 0 - ”

From a judgment rendered pursuant to the verdict, plaintiff appeals seeking an increase in the special damages and also seeking general damages.

The evaluation of damages, arising out of plaintiff’s claims of injuries, are complicated by an unusual factor. Plaintiff had been involved in two rear-end collisions occurring within six days of each other. She was involved in a rear-end collision on January 1, 1979. She saw Dr. Rush the following day, complaining of neck pain. Dr. Rush started treating her conservatively for this neck problem. She was then involved in the second rear-end collision on January 6, 1979. She continued her neck complaints and, also, eight days later, developed back problems. This suit is for damages arising out of the second accident, January 6, 1979.

In her suit she seeks medical expenses and general damages for her neck and back problems, alleging that these problems were attributable to the second accident which occurred January 6, 1979. The jury was faced with the problem of determining whether plaintiff’s neck and back problems were attributable to the second accident or whether they were caused in whole or in part by the first accident.

In order to resolve the issues we deem it necessary to discuss the cervical and lumbar problems separately.

CERVICAL

The day following the first accident, January 2, 1979, plaintiff consulted Dr. Robert K. Rush, complaining of neck pain. Dr. Rush testified that he examined plaintiff and found some spasm of the cervical region. He prescribed medication to relieve the pain. Dr. Rush saw plaintiff on January 8, 1979, two days after the second accident. Plaintiff was still complaining of pain in the cervical region. The testimony of Dr. Rush gives us no indication that either the complaints or condition of plaintiff’s neck were any different after the second accident than before. He continued his conservative treatment.

Dr. Rush next saw plaintiff on January 15, 1979. At this time she was complaining of neck and back pain. She stated that the onset of the back pain had begun the day before. Insofar as her neck complaints, she had begun improving. He treated plaintiff after this for back complaints, for, at this point, her neck complaints seemingly subsided.

In her testimony, plaintiff candidly admitted that she didn’t notice any change in her neck condition after the second accident. She testified as follows:

“Q. Was your neck any worse after the the second accident?
“A. I don’t think so.
“Q. O. K. So it continued the same, as far as you know, between the first accident and after the second accident?
“A. Yes.”

In view of the testimony of Dr. Rush and plaintiff, we conclude that the second accident had little, if any, effect on the existing cervical problem. This factor must be considered in assessing plaintiff’s damages.

LUMBAR

The first time the lumbar pain manifested itself was eight days following the second accident. Plaintiff stated that she had never had any back problems prior to that time. As a result of her back complaints Dr. Rush hospitalized plaintiff on January 17, 1979 for a period of three days. Plaintiff was kept in pelvic traction during these three days to relieve the back pain. Dr. Rush saw plaintiff again on January 22, 1979, after she was released from the hospital, and she told him she was feeling much better. Dr. Rush saw plaintiff the last time on April 17, 1979, at which time he felt she had recovered. He felt that her back problem could be related to the second accident.

Plaintiff testified that later her back problems began to worsen and her attorney suggested she see Dr. John Patton, a neurosurgeon. Dr. Patton testified that he saw plaintiff the first time on May 24,1979. He examined her and all tests were normal. He found some spasm and diagnosed her condition as lumbar strain. He prescribed medication. Dr. Patton next saw plaintiff on August 14, 1979. Plaintiff stated that she had slipped and fallen a few days prior to the visit and that this fall had worsened her pain. He prescribed medication. He stated he could find no objective signs that would account for her continuing complaints of pain. Dr. Patton saw Mrs. Griffin on November 12, 1979. She was complaining of back pain but Dr. Patton could not determine any cause for same. His examination revealed no abnormalities.

Plaintiff went to work for Pinecrest State School in Pineville, Louisiana, in October 1979. She signed a pre-employment examination form. One question asked if she had a back injury and she answered “No.”- She was working at the hospital at the time of trial and was apparently having no difficulty performing her duties administering therapy to the children.

The evidence reveals that it is more probable than not that plaintiff’s lumbar strain was caused by the second accident. She had never had back problems before January 14, 1979, which was after the second accident. Having come to this conclusion the plaintiff would be entitled to those damages attributable to the lumbar strain.

SPECIAL DAMAGES

We now turn to the jury verdict of $700.00 for special damages to determine whether such verdict was clearly wrong.

The medical expenses introduced into evidence total $1,051.64. These expenses are as follows:

Tioga Medical Clinic (Dr. Rush) $ 119.00
Tioga Pharmacy (Drugs) 121.14
Alexandria Neurosurgical Clinic (Dr. Patton) 167.00
Doctors Hospital 644.50

The jury awarded $700.00, or approximately 70% of the total, as special damages. These damages were medical expenses. The only evidence of special damages in the record is the medical bills listed above. Plaintiff contends that all medical expenses ($1,051.64) should be awarded. We disagree with this position.

The medical expenses above represent the total expenses for the cervical and back treatment after the second accident. The evidence reflects that little, if any, of the medical expenses for the cervical problem could have been allowed as that problem was principally caused by the first accident.

Plaintiff proved with reasonable certainty that a major portion of the medical expenses was due to the treatment for the back injury. As we consider the fact that the two accidents and injuries were close in time and treatment for the cervical injury overlapped the treatment for the lumbar injury, we cannot say that the jury was clearly wrong when they allocated $700.00 for medical expenses which would be attributable to the injury received in the second accident. The jury award for special damages will be affirmed.

GENERAL DAMAGES

The jury made no award of general damages. An award of “0” as damages for pain and suffering is not an exercise of discretion as to amount but is a refusal of an award. A jury cannot award special damages for personal injuries incurred in an accident and refuse to award any amount for general damages for injuries that present objective symptoms. Such an omission is an error of law and must be corrected on appeal. Brown v. Grigsby, 394 So.2d 847 (La.App. 3rd Cir. 1981); Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4th Cir. 1976).

Following the second accident the plaintiff has had recurring pain in her lower back. Both doctors felt that the plaintiff suffered a lumbar strain. Plaintiff testified that she had to curtail some of her activities in order to avoid exacerbating the pain.

The testimony reveals, however, that the pain is neither severe nor constant. The plaintiff indicated that she will sometimes be free of pain for as long as several days. As of October 1979 she was employed, giving physical therapy at a state hospital, and is able to fully perform her duties. Her job application, filled out subsequent to the accident, indicates that she has no disability.

There has been no proof of discopathy. The doctors indicated that the duration of the plaintiff’s pain is unusual for a strain, but Dr. Patton could find no objective symptoms of any neurological problems. He refused to rule out a bulging disc, but also stated that the pain was not significant enough to justify a myelogram to determine if there is, in fact, any nerve root irritation.

We find that plaintiff has proved a lumbar strain, more probably than not the result of the second accident. In light of all the circumstances, an award of $4,000.00 in general damages is adequate compensation.

For the above reasons, the judgment of the trial court is amended by awarding general damages in the amount of $4,000.00. In other respects the judgment of the trial court is affirmed. The costs of this appeal are assessed against the defendant-appellees.

AMENDED AND AFFIRMED.


text:
    W. C. LAMB d/b/a Lamb Enterprises, Plaintiff-Appellant, v. QUALITY INSPECTION SERVICES, INC., Mark Carte and Leonard Scrantz, Defendants-Appellees.
    No. 8097.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Bean & Rush, Warren D. Rush, Lafayette, and Arnold, White & Durkee, James J. Elacqua, Houston, Tex., for plaintiff-appellant.
    Frugé & DeJean, Jack C. Frugé, Jr., Lafayette, for defendant-appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   FORET, Judge.

Lamb Enterprises (Plaintiff) appeals from a denial by the trial court of its prayer for the issuance of a preliminary injunction against defendants, Quality Inspection Services, Inc., Mark Carte, and Leonard Scrantz.

The issue is whether the trial court abused its broad discretion in refusing to issue the preliminary injunction.

FACTS

Plaintiff is a sole proprietorship, formed under the laws of this State, with its principal place of business in Lafayette, Louisiana. It is primarily engaged in the inspection of pipe and other tubular products for industry. The purpose of its inspection is to detect flaws and defects in equipment before failure during actual use occurs. There are a number of different methods used to inspect tubular products, i.e., dry and wet magnetic particles, visual inspection, optical inspection, fluoroscopic inspection, ultrasonic testing, dye penetrant, etc.

Mark Carte and Leonard Scrantz are former employees of plaintiff who terminated their employment in March, 1980, and formed a company known as Quality Inspection Services, Inc. (Quality) shortly thereafter. Quality specializes in inspecting tools and pipe which are used in making up what is termed the “bottom-hole assembly”. The primary method used by Quality in performing these inspections is ultrasonic testing.

Plaintiff instituted this action on May 20, 1980, alleging that defendants were using certain of its “trade secrets,” learned during the course of their employment with it, in performing their inspections. It further alleged that it would suffer “irreparable injury” unless defendants were enjoined from doing so. The trial court, after hearing, refused to issue a preliminary injunction, and plaintiff was granted a devolutive appeal.

“TRADE SECRETS”

The U.S. Supreme Court, in Kewanee Oil Company v. Bicron Corporation, et al, 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974) held that the states were not preempted by the patent law of the United States from providing protection for “trade secrets” which may or may not be patentable. Louisiana does (in a very vague and general manner) provide protection for “trade secrets” by making it unlawful to engage in “unfair” trade practices under the provisions of LSA-R.S. 51:1405.

What constitutes unfair competition is a matter to be decided in each individual case and involves a balancing between the right of the employee to individual freedom on the one hand and the right of the employer to honest and fair competition and to protection of business assets and property in the nature of trade secrets on the other hand. National Oil Service of Louisiana, Inc. v. Brown, 381 So.2d 1269 (La.App. 4 Cir. 1980).

The courts, in addition, have always stood ready to grant injunctive relief to protect valuable “trade secrets” property. Marcann Outdoor, Inc. v. Johnston, 229 So.2d 419 (La.App. 3 Cir. 1969).

Various efforts have been made to define what is a “trade secret”. The tests applied include: (1) is the information a secret not generally known to the trade; (2) although absolute secrecy is not essential, has it been kept at least a qualified secret; and (3) is it of value. Standard Brands, Inc. v. Zumpe, 264 F.Supp. 254 (E.D. La. 1967).

The Restatement of Torts, § 757, Comment B (1939) sets forth the following definition of a “trade secret”:

“A trade secret may consist of any formula, pattern, device or compilation of information which is used in ones business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.”
“Trade secrets and confidential information, in order to be protected against disclosure by employees, must be the particular secrets of the employer as distinguished from the general secrets of the trade in which he is engaged. Their character is not material, as long as they are peculiar and important to the employer’s business and are used exclusively by him....”

56 C.J.S. Master and Servant § 72b, page 484.

Plaintiff claims that it developed certain techniques and procedures for conducting an ultrasonic inspection of tubular goods, including those used in making up a “bottom hole assembly”, after expending large sums for research and development. It further claims that it has gained a competitive edge through the use of this information, which it has sought to keep confidential and, therefore, this information constitutes a “trade secret”. Plaintiff contends that defendants are now using this information to perform their inspection services and that it is entitled to a preliminary injunction enjoining defendants from misappropriating these valuable “trade secrets”.

Plaintiff relies on National Oil Service of Louisiana, Inc. v. Brown, supra, arguing that the court there reversed a judgment of a trial court which had refused to issue a preliminary injunction sought by the plaintiff and recognized the need to protect the holder of a trade secret from disloyal employees.

The court, in National, found that the use of plaintiff’s confidential and privileged trade information and trade secrets constituted an invasion of plaintiff’s property rights and unfair competition and unfair trade practices on the part of defendant. The “trade secrets” in National consisted of lists of customers whose regular patronage had been acquired through the plaintiff’s-employer’s advertising, solicitation and organized effort. Further, these lists had been developed through contacts and organized efforts of all of plaintiff’s employees. The lists were also compiled for the additional purpose of providing plaintiff’s truck drivers with a routine route for the purpose of efficient and systematic collection of waste oil, besides simply providing a record of the names of customers.

Plaintiff, in the case before us, equates its development and compilation of information regarding the ultrasonic testing of component parts of , a “bottom hole assembly” with the customer list involved in National and argues that defendants’ use of this information constitutes an invasion of its property rights. .

Defendants, on the other hand, argue that the techniques and procedures used by plaintiff were in fact matters of public knowledge which had been developed by others long before plaintiff applied them in certain specific inspection situations and that such information failed to constitute a “trade secret”.

The moving party, to obtain a preliminary injunction under LSA-C.C.P. Article 3601, must show that the injury, loss or damage he will suffer may be irreparable if the court fails to issue the injunction. The party must also show that it is entitled to the relief sought and must make a prima facie showing that it will prevail on the merits of the case. General Motors Acceptance Corporation v. Daniels, 377 So.2d 346 (La. 1979); Price v. State, Department of Public Safety, License Control and Driver Improvement Division, 325 So.2d 759 (La. App. 1 Cir. 1976); Melancon v. Assumption Parish Police Jury, 231 So.2d 690 (La.App. 1 Cir. 1970).

The evidence indicates that there are many other companies which use the ultrasonic method of inspecting tubular products and that some also use this method for inspecting the component parts of the “bottom hole assembly”. Plaintiff argues, though, that it is the only one that uses its certain techniques and procedures to do so. However, the evidence provides no support for plaintiff’s argument and, in fact, indicates that plaintiff simply refined techniques and procedures generally known by those familiar with the ultrasonic inspection method.

There was evidence of the fact that defendants used a different ultrasonic device from that used by plaintiff in making their inspections. Defendant, Mark Carte, had attended the Spartan School of Aeronautics where he gained considerable knowledge with respect to a number of non-destructive testing methods, including ultrasonic testing. He was then employed by plaintiff and given a short orientation course to familiarize him with the type of work done by plaintiff. Carte then began to teach inspection techniques to other employees of plaintiff.

Steven Clark was called as a witness by defendants and was accepted by the court as an expert in the field of quality control with particular expertise in the field of ultrasonic testing. He testified that he knew of twelve to fifteen companies in the Houston area alone which were performing ultrasonic inspections of down hole tools. He reviewed a manual published by plaintiff for use by its employees in conducting their inspections and testified that it contained no information with respect to ultrasonic inspections which he had been unaware of prior to his review. He further testified that he had witnessed ultrasonic inspections by other companies and that their methods of conducting those inspections were similar to or identical with those used by plaintiff.

We find that plaintiff has failed to make a prima facie showing of the existence of its alleged “trade secrets” and the use of such by defendants.

Finally, plaintiff cites Brown & Root, Inc. v. LaBauve, 219 F.Supp. 179 (W.D. La. 1962) and argues that the court there found that the defendant-employee had a fiduciary obligation to his plaintiff-employer and was unable to capitalize on information and knowledge gained while employed by plaintiff even though that information could be obtained from public sources.

Defendant, in Brown & Root, Inc., was employed by plaintiff for approximately three months during which time defendant, through information given him as an employee, learned of the route of a proposed pipeline to be constructed by his employer. Defendant, upon learning this information, terminated his employment with plaintiff and attempted to acquire property along the proposed pipeline route for the purpose of benefiting from the acquisition of right-of-ways by his former employer. The court, in Brown & Root, Inc., refused to allow defendant to capitalize on this information, finding that it would be a breach of defendant’s fiduciary obligation to his former employer to allow him to do so.

We find that Brown & Root, Inc. v. LaBauve, supra, is inapposite to the case before us, as plaintiff has failed to prove the existence of any confidential information or knowledge imparted to defendants by virtue of the employment relationship and which they now seek to use for their own benefit.

NON-DISCLOSURE AGREEMENT

Plaintiff also contends that defendants, Mark Carte and Leonard Scrantz, have violated the terms of a “confidential non-disclosure agreement” which they entered into with plaintiff as consideration for their employment by it and that these defendants should be enjoined from any further violation of their agreements.

The agreement itself stipulates that what is to be kept secret is all “non-public” processes, equipment, inventions, formulas, business secrets, or special methods learned while employed by plaintiff. Here, the defendants are simply using knowledge which is generally known by others performing the same type of services as defendants.

What is entitled to protection is knowledge confidentially gained, but an employer cannot prevent his employee from using the skill or intelligence acquired through experience received in the course of the employment. The employee may achieve superiority by every lawful means and upon the rightful termination of his contract use that superiority for the benefit of rivals in the business of his former employer. Standard Brands, Inc. v. Zumpe, supra; 56 C.J.S. Master and Servant § 72a, page 484.

The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court, although that discretion is reviewable if erroneously exercised. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La. 1979); Schweqmann Brothers Giant Supermarkets v. Louisiana Milk Commission, 290 So.2d 312 (La. 1974); Silberman v. Beaubouef, 175 So.2d 873 (La.App. 3 Cir. 1965); Daigre Engineers, Inc. v. City of Winnfield, 385 So.2d 866 (La.App. 2 Cir. 1980).

We see no error by the trial court in refusing to issue the preliminary injunction prayed for by plaintiff.

Defendant has answered the appeal, contending that the said appeal is frivolous, and seeks damages. We see no merit in the answer to the appeal.

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

Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . The “bottom-hole assembly” refers to the collection of drill collars, stabilizers, flex-weight, bit, etc., located at the end of the drill stem of a rig used in drilling for oil.

      . Ultrasonic testing of tubular products is accomplished by beaming sound waves through the piece to be tested and by using certain equipment to detect any echos which may be caused by flaws or defects therein.

      .LSA-R.S. 51:1405 provides in pertinent part:
      “§ 1405. Unlawful acts or practices; Interpretation and rule making authority
      A. Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”

      . Plaintiff was primarily engaged in the business of collecting and recycling waste oil for further use. Thus, its customer lists were used to set up a schedule for the periodic collection of waste oil from each customer by plaintiff's employees.

      . LSA-C.C.P. Article 3601 provides in pertinent part:
      “Art. 3601. Injunction, grounds for issuance; preliminary injunction; temporary restraining order
      An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.”

      . LAMB ENTERPRISES AND/OR W. C. LAMB
      CONFIDENTIAL NON-DISCLOSURE AGREEMENT
      As a consideration for my initial or continued-employment, I agree to keep secret all non-public processes, equipment, inventions, formulas, business secrets or special methods learned by me while in the employ of the Company, whether owned, developed or used by the Company under license from others, and further agree not to disclose or make known any of the same, directly or indirectly, or anything relating thereto to any person, firm or corporation without the written authorization of Lamb Enterprises and/or W.C. Lamb.
      Date
      Signature of Employee


author: GUIDRY, Judge. LABORDE, Judge,

text:
    Gene SOILEAU, Plaintiff-Appellee, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellant.
    No. 8159.
    Court of Appeal of Louisiana, Third Circuit.
    April 28, 1981.

      Dubuisson & Dubuisson by Edward B. Dubuisson, Opelousas, for defendant-appellant.
    Domengeaux & Wright, Richard C. Broussard, Lafayette, for plaintiff-appellee.
    Before GUIDRY, FORET, CUTRER, SWIFT and LABORDE, JJ.
   GUIDRY, Judge.

Plaintiff, Gene Soileau, instituted this suit against South Central Bell Telephone Company for damages for personal injuries sustained by Soileau when he tripped over a temporary telephone service wire. After a jury trial, a verdict was rendered in favor of the plaintiff and against the defendant in the sum of $65,000.00. Defendant prosecutes the instant appeal alleging that the jury erred in failing to conclude that the plaintiff was barred from recovery due to his contributory negligence. On appeal, defendant concedes in brief that there existed at trial sufficient evidence for the jury to reasonably conclude that the defendant was negligent. Accordingly, the sole issue before this court on appeal is whether or not the plaintiff was guilty of contributory negligence and thus, is barred from recovering damages.

FACTS

During October of 1977, Mrs. Penny Soi-leau, plaintiff’s wife, contacted South Central Bell Telephone Company and requested telephone service for their residence in rural St. Landry Parish. On November 2, 1977, Bruce Jennings, an employee of the defendant, connected the requested service to the Soileau home. Due to a defective ground wire, the connection of service necessitated the installation of a temporary drop wire which was laid upon the surface of the ground. The wire employed by Jennings was approximately one-quarter inch in diameter and flat black in color. The drop wire was attached to a “protector” located on the side of the Soileau residence and strung across a sidewalk at the side of the house and continued approximately 100 feet to a terminal located near the roadway passing in front of the Soileau residence. Approximately three weeks after the temporary drop line was installed, Mrs. Soileau contacted defendant requesting that defendant send an employee out to bury the wire. Subsequently, Mrs. Soileau made numerous calls requesting that the wire be buried, however, this was not done until May 5, 1978 approximately six months following its installation. Testimony at trial indicated that to leave a temporary drop wire exposed for such a lengthy period of time is highly irregular and contrary to telephone company policy.

On January 28, 1978, at approximately 10:15 p. m., plaintiff, intent on feeding his animals, went to the front porch of his home to obtain some feed and then walked briskly alongside and toward the rear of his residence where he kept his animals. It was a dark night and according to the plaintiff, the security light located approximately 100 feet away did not illuminate that portion of the sidewalk upon which the temporary drop wire was located. The actual trip and fall was described by plaintiff during his testimony during which he stated:

“A. When I got in to the spot, you know, where my butane tank is there, I touched — feit something’ was on mv foot like that and I realized what it was when I felt it. I knew it was that wire and I was coming dose to my back sidewalk that runs sideways like that, so I was going to jump that sidewalk, untangle my foot and as I jumped like that, I felt the wire come off mv rierht foot. I thousrht I was free, kept on eroiner and when I knew somethine, man, it pulled me to- a dead stop, cracked my leg like that and I fell sitting down. It was hooked on my left foot.” (Emphasis ours)

Defendant contends on appeal that the jury erred in concluding that the plaintiff was free from contributory negligence.

The law appears to be well-settled that negligence is a failure to observe or do something that one ought to have observed or done and would have done or noticed with ordinary care. In walking, although one is not required to keep his eyes glued to the pathway, he is required to look sufficiently well to see if his path is clear. This duty of care is even more strict when one has knowledge that his pathway is not clear. See Youngblood v. Newspaper Production Company, 158 So.2d 432 (La.App. 2d Cir. 1963), writ refused, 245 La. 576, 159 So.2d 287; Siau v. Rapides Parish School Board, 264 So.2d 372 (La.App. 3rd Cir. 1972), writ refused, 262 La. 1148, 266 So.2d 440; Masters v. State Farm Insurance Co., 266 So.2d 508 (La.App. 4th Cir. 1972); Artigue v. South Central Bell Telephone Co., 390 So.2d 211 (La.App. 3rd Cir. 1980). Ordinary care is a relative term and its meaning is dependent on the facts and circumstances of each particular case. See Normand v. Piazza, 145 So.2d 110 (La.App. 4th Cir. 1962). In Youngblood, supra, the court stated:

. the conclusion is inescapable that the plaintiff was guilty of contributory negligence in his failure to look where he was going and to observe dangers of which he was well aware and which were known to him.” (Emphasis ours)

Therefore, the essential question to be answered in cases such as the instant suit is did plaintiff have full knowledge of the danger in which he was placed and were his actions that of a reasonable man under the circumstances to secure his own safety. Pfister v. Phoenix of Hartford Insurance Co., 290 So.2d 362 (La.App. 4th Cir. 1974); Willis v. Stauffer Chemical Co., 348 So.2d 158 (La.App. 3rd Cir. 1977).

The record discloses that Soileau was well aware of the presence and location of the temporary telephone service wire. Plaintiff testified that he had to move the wire whenever he cleaned or mowed his yard. More importantly, Soileau testified at trial that he actually felt the wire on his foot immediately prior to his fall, yet instead of exercising ordinary care by making sure he was free of the wire, plaintiff merely assumed he was free and proceeded onward. His actions in continuing forward resulted in his fall and subsequent injury.

Similar factual circumstances were addressed by this court in Artigue v. South Central Bell Telephone Co., supra, wherein the plaintiff tripped on a temporary drop wire that was lying across a vacant lot over which he crossed. The wire in that case was grey in color and the accident occurred at dusk. In that suit, this court held that the plaintiff was guilty of contributory negligence. Plaintiff herein contends that Artigue is inapplicable to the instant case due to its factual differences. We note the factual differences between Artigue and the instant case, however, we conclude that of greater importance than the color of the wire and time of the accident is the fact that the wire in the instant suit had been in the same location for six months, specifically lying across the sidewalk which plaintiff used daily. The record is clear that the area where the drop wire was strung across the sidewalk was clean and the plaintiff was simply not looking for the wire. As previously stated, of great significance to this court is the fact that before falling Soileau encountered the wire, knew exactly what it was, yet proceeded to jump the sidewalk in an attempt to disentangle his foot. Plaintiff then assumed that he was free, continued onward without ascertaining if in fact he was disentangled, and ultimately fell and injured himself. In consideration of Soileau’s own testimony concerning his actions, we conclude that plaintiff was negligent and that his negligence was a proximate cause of his injury. Accordingly, we find that the jury was clearly wrong in its conclusion that plaintiff was free from contributory negligence. See Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La. 1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979).

We observe that the doctrine of “momentary forgetfulness” is inapplicable to the present suit. That doctrine provides that a plaintiff’s lapse of memory or momentary forgetfulness of or inattention to a known danger, such as the presence of the wire on the sidewalk, excuses him from the consequence of his inattention to the danger. See Youngblood v. Newspaper Production Co., supra. A review of the record reveals that plaintiff conceded his knowledge of and familiarity with the presence of the wire on the sidewalk. There was no evidence indicating that plaintiff had a lapse of memory or that he momentarily forgot the existence of the wire. Moreover, plaintiff’s attention was drawn to the presence of the wire when he felt it on his foot. Thus, even if the plaintiff had momentarily forgotten about the wire in his haste to feed his animals, he became aware of the wire prior to his fall, yet failed to exercise ordinary care by extricating himself from it before proceeding onward.

For the above and foregoing reasons, the judgment of the trial court is reversed and set aside and judgment is rendered in favor of defendant and against the plaintiff, dismissing the latter’s suit. All costs at the trial level and on appeal are assessed to the plaintiff, Gene Soileau.

REVERSED AND RENDERED.

LABORDE, J., dissents and assigns reasons.

LABORDE, Judge,

dissenting.

I respectfully dissent from the majority holding for the following reasons.

At the conclusion of the trial the jury returned a verdict in answer to Special Interrogatories finding the defendant proximately negligent and the plaintiff free of contributory negligence and further awarding the sum of $65,000 in damages. The jury verdict provided:

“JURY VERDICT
1. Was the defendant, SOUTH CENTRAL BELL TELEPHONE COMPANY guilty of negligence which was a proximate cause of the injuries to GENE SOI-LEAU?
YES 2 NO 10
If your answer to the above was “YES”, then answer the following question; if your answer was “NO”, you need answer no further questions.
2. Was the plaintiff, GENE SOILEAU, guilty of contributory negligence which was a proximate cause of the accident?
YES 10 NO 2
If your answer to question No. 2 was “YES”, you need proceed no further; if your answer to question No. 2 was “NO”, then answer the next question.
3. What amount of money should be awarded to the plaintiff, GENE SOI-LEAU?
$65.000
s/ FRANCIS T. DAUPHIN JURY FOREMAN”
(Tr. Volume 1, p. 172)

Defendant moved for a new trial which was denied by the trial judge after oral argument. This appeal followed.

On appeal defendant admits in brief that: “At this point, to argue that South Central Bell Telephone Company was not guilty of negligence would be a fruitless effort. Suffice it to say that there was enough evidence on this issue for this Honorable Court not to disturb the jury’s decision on that point.” (Appellant’s brief p. 6)

Defendant further states:

“Hovever, (sic) there is one glaring error that the jury committed: it found the plaintiff to be free of contributory negligence. And what is before this Court is not a complaint of a finding of fact, because the essential facts were undisputed, but a complaint that the jury’s finding of no negligence on Soileau’s part is not justified by the facts and is clearly contrary to the established jurisprudence of the State of Louisiana.” (Appellant’s brief p. 6)

Therefore, the issue before this court is the contributory negligence of Soileau.

FACTS

Plaintiff’s wife, Penny, requested telephone service from the defendant for the Soileau home in rural St. Landry Parish. On November 2, 1977, Bruce Jennings, an installer for defendant, connected telephone service to their home. Jennings installed a temporary drop wire on the surface of the ground. The wire used by Jennings was approximately Vi inch in diameter and flat black in color. It was attached to the side of the Soileau home and strung across a sidewalk where it continued approximately 100 feet to a terminal located near the roadway. No flags or warnings were attached to the wire.

Shortly after the installation of the temporary phone wire, Penny Soileau began making calls to the defendant requesting them to bury the cable. She made four or five calls prior to January 28, 1978.

Allen Aaron, a supervisor for defendant, testified that it is defendant’s practice to bury telephone cables within 3 or 4 working days from the time of installation. Bruce Jennings testified that it was highly unusual to leave phone wire on the surface of the ground for long periods of time. The manual issued by South Central Bell for burial of such cables provides:

“ 3.03 The practice of laying temporary drops on top of the ground to either establish or restore existing service must be avoided when possible and allowed only when approved by a management employee. A permanent installation should be made within three work days.” (Tr. 127)

The telephone wire was finally buried on May 5, 1978, a period of six (6) months subsequent to the installation.

On January 28, 1978, at approximately 10:00 p. m., Soileau went to the front porch of his home, picked up some food for his animals, and then walked briskly alongside and toward the rear of his home where the animals that he intended to feed were kept. It was a dark night and the security light located 100 feet away did not illuminate that portion of the sidewalk as the light was blocked by trees and a butane tank. Soileau was not accustomed to using this route to feed his animals. Instead, he usually exited through the back door of his house.

The actual trip and fall is best described by Soileau as follows:

“A. When I got in to the spot, you know, where my butane tank is there, I touched — felt something was on my foot like that and I realized what it was when I felt it, I knew it was that wire and I was coming close to my back sidewalk that runs sideways like that, so I was going to jump that sidewalk, untangle my foot and as I jumped like that, I felt the wire come off my right foot, I thought I was free, kept on going and when I knew something, man, it pulled me to a dead stop, cracked my leg like that and I fell sitting down. It was hooked on my left foot.
Q. You said you jumped, were you walking or running at the time?
A. When I felt that, I kinda like run, jumped that sidewalk, I kinda like jumped that sidewalk, you know.
Q. What was your intention in jumping the sidewalk?
A. Well, I didn’t want to fall on that sidewalk.” (Tr. Volume 2, pp. (17-18))

DEFENDANT’S NEGLIGENCE

Defendant in its appellate brief admitted negligence. In my opinion this admission is supported by the trial record. In addition to permitting the temporary drop wire to remain on the surface of the ground from November 2,1977, to January 28,1978, (the date of the accident) defendant failed to tag the line or erect warning signs. I find that the defendant was negligent.

Finding defendant negligent, I now address the issue of plaintiff’s contributory negligence.

PLAINTIFF’S CONTRIBUTORY NEGLIGENCE

The general law in cases of this type is set out in Siau v. Rapides Parish School Board, 264 So.2d 372, 375 (La.App. 3rd Cir. 1972), writ denied, 262 La. 1148, 266 So.2d 440 (La.1972).

“Negligence is a failure to observe or do something that one ought to have observed and done, and would have done or noticed with ordinary care. Plaintiff is held to have seen that which he should have seen. Although plaintiff was not required to keep his eyes glued to the pathway, he was required to look sufficiently well to see if his path was clear. Bamburg v. Standard Oil Co. of Louisiana, 199 So. 411, 412 (La.App. 2 Cir. 1940).
While one is not required to look for hidden dangers, he is nevertheless bound to proceed with his eyes open and to observe his course to see what is in his pathway. Spinks v. General Fire and Casualty Company, N. Y., 175 So.2d 339, 341 (La.App. 2 Cir. 1965).”

Contributory negligence is a matter of fact to be determined in the light of the circumstances of each case. McKowen v. Gulf States Utilities Company, 358 So.2d 675 (La.App. 1st Cir. 1978).

Defendant urges us to follow our recent decision in Artigue v. South Central Bell Tel. Co., 390 So.2d 211 (La.App. 3rd Cir. 1980). In the Artigue case plaintiff tripped and fell over a temporary wire that was lying across a vacant lot over which he was crossing. The wire was grey in color. The accident happened at dusk. In that case this court affirmed the jury’s finding that Artigue was guilty of contributory negligence.

In Artigue we held that contributory negligence is a matter of fact to be determined in the light of the circumstances of each case. Artigue is distinguishable from the case under consideration. Soileau tripped on the wire, flat black in color, in total darkness at 10:00 p. m.

Defendant is asking this court to substitute its judgment for that of the jury’s. Defendant has made no showing that the jury which heard this case was clearly wrong. While the facts are such that a different jury or trier of fact might have found in favor of defendant-appellant, the jury in this case did not. The record contains ample proof to support the jury’s finding of fact. In the absence of a showing that the jury’s finding was clearly wrong or manifestly erroneous, it is our duty to affirm its finding of fact. Arceneaux v. Domingue, 365 So.2d 1130 (La.1978); Matte v. Guillory, 370 So.2d 1299 (La.App. 3rd Cir. 1979), writ denied, 374 So.2d 661 (La.1979) and Artigue v. South Central Bell Telephone Co., supra.

For the above and foregoing reasons, I would affirm the jury’s findings.


author: BOUTALL, Judge.

text:
    Elmo J. SPELLMAN v. Virginia Dimiceli SPELLMAN.
    No. 12259.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 1981.
    Trudy H. Oppenheim, New Orleans, for appellee Virginia Dimiceli Spellman.
    Powers, Nass & Associates, Theodore W. Nass, New Orleans, for plaintiff-appellant Elmo J. Spellman.
    Before BOUTALL, GARRISON and BARRY, JJ.
   BOUTALL, Judge.

Appellee, Virginia Dimiceli Spellman has filed a motion to dismiss this appeal because the appellant’s brief fails to comply with the court rules.

We have examined the appellant’s brief and find that it fails to comply with Rule IX, Section 1(d), (e) and (f) and Section 3. In fact, the brief of appellant borders on the edge of being frivolous.

However, under the Uniform Rules, Courts of Appeal, the penalty for filing a brief in noncompliance with sections 1 through 6 of Rule IX is refusal to accept the brief, Section 15.

Accordingly, IT IS ORDERED that the brief of appellant not be accepted and be returned by the Clerk of this Court to appellant.