text:
    Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana v. GULF COAST ALUMINUM CORPORATION, et al.
    No. 15036.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      Riley F. Boudreaux, Jr., Baton Rouge, for plaintiff-appellant Joseph N. Traigle, Collector of Revenue, State of La.
    R. Gordon Kean, Jr., Baton Rouge, for defendants-appellees Gulf Coast Aluminum Corp., et al.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

By this suit, the Collector of Revenue of the State of Louisiana is attempting to collect $272,817.00 in corporation franchise taxes allegedly owed by Gulf Coast Aluminum Corporation, now known as Conalco, Inc. From a judgment rejecting its demands, plaintiff has appealed.

The trial judge has rendered written reasons for judgment, which adequately dispose of the various issues presented by this case, with which we agree, which we adopt as our own, and attach hereto as an appendix.

For the reasons therein set forth, the judgment of the trial court is affirmed at plaintiff’s cost.

AFFIRMED.

APPENDIX

WRITTEN REASONS FOR JUDGMENT

This matter was tried on October 30, 1979. Counsel for the plaintiff, Collector of Revenue, State of Louisiana (hereafter “Collector”) and counsel for defendants, Gulf Coast Aluminum Corporation, Consolidated Aluminum Corporation and Conalco, Inc. (hereafter collectively referred to as “GCA”) filed either or both pretrial and post trial memoranda, and this Court heard oral argument of counsel on November 20, 1979.

Pursuant to the provisions of La.R.S. 39:991 et seq. (Louisiana’s Industrial Inducement Statute), the Parish of Calcasieu (Parish) and GCA entered into agreements whereby the Parish would issue Industrial Development Bonds, the proceeds of which would be and were used to construct a manufacturing facility to be leased to GCA. The lease payments would be used to pay the principal of and interest on the bonds as they came due. The Collector has filed this suit to collect franchise tax which it maintains GCA owes. The Collector’s position, basically, is that the bond proceeds used by the Parish to construct the manufacturing facility should have been included on the books of GCA to establish its franchise tax basis. The Collector adopted various arguments: that the lease transaction was actually a sale; that the bond proceeds constitute “borrowed capital” by GCA; and, that GCA acquired a “material equity,” as that term is used in the accounting profession, in the property and lease agreement. GCA contends that it located its facility in Calca-sieu in reliance upon Louisiana’s industrial inducement package, of which R.S. 39:991 et seq. was an integral part, that the Parish properly followed the requirements of La. R.S. 39:991 et seq. in structuring the transaction and that R.S. 39:991 et seq. provides a special financing arrangement which, if correctly followed, does not result in franchise tax liability to the lessee-industry which leases from the municipality or other authorized local government issuing the bonds.

After considering the testimony and evidence at the trial, the argument of counsel, the briefs and law, this Court finds that GCA has incurred no franchise tax liability to the State of Louisiana for reasons hereafter set forth.

The Internal Revenue Service was requested to and did review and rule by private letter ruling on the proposed transaction between GCA and the Parish of Calca-sieu. The IRS ruled that since bonds issued under the provisions of R.S. 39:991 et seq. were bonds of Calcasieu Parish (“municipal bonds”) they were exempt from federal taxation.

Bond counsel testified that if the ruling request would have stated that the proposed transaction would result in the inclusion of the bond proceeds in the franchise tax base of GCA, the IRS would have denied exempt status.

The Parish thereafter called a special election for the purpose of submitting to the qualified property tax paying voters the question of issuing $62,700,000 in industrial revenue bonds of the Parish and the issue was approved by the voters. The State Bond and Tax Board and the Board of Commerce and Industry approved the bonds. Bond counsel, by letter opinions, stated that all requirements qf La.R.S. 39:991 et seq. had been complied with. The Parish then acquired certain rights in tracts of property: a right to occupy a tract owned by Lake Charles Harbor and Terminal District and full ownership of another tract which when joined with the first, make up the tract upon which the manufacturing facility was ultimately constructed.

The comprehensive Lease Agreement entered into between the parties reflects that the Parish, as Lessor, is the owner of the rights in the tracts acquired and that GCA is the lessee. The Parish, in a Mortgage and Indenture of Trust, obligates itself as owner of the property and obligor on the bonds to Morgan Guaranty Trust Company of New York, Trustee for the bondholders. The Indenture is the security instrument by which the obligation of the Parish is secured. GCA is not a party to that instrument.

The foregoing is not an ordinary financing transaction; it is one specially authorized by La.R.S. 39:991 et seq., one of the “right to profit” laws enacted as part of a comprehensive industry inducement program enacted in 1964. This industrial inducement program, (including La.R.S. 39:991, and others) was enacted to make industrial location in Louisiana more economically desirable. One of the reasons an industry such as GCA would be attracted to Louisiana through the industrial inducement program is the fact that such industry could lease an industrial site without the costs (including franchise taxation) inherent in ownership.

Taking this statutory background into consideration and applying recognized rules of statutory construction, it is obvious that the industrial bonds issued by the Parish to purchase land and construct the plant leased to GCA, strictly in accordance with La.R.S. 39:991 et seq., cannot justifiably be included in GCA’s corporation franchise tax base. To find otherwise would be inconsistent with the legislative intent in enacting the provisions of R.S. 39:991 et seq.

In seeking to determine legislative intent, it is a well settled maxim that laws should be construed so as to give them effect and not render them meaningless. State v. Mestayer, 144 La. 601, 80 So. 891 (1919); Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534 (La.App., 3d Cir., 1976); Hills v. Bonin, 329 So.2d 773 (La.App., 1st Cir., 1976); Peyrefitte v. Harvey, 312 So.2d 159 (La.App., 1st Cir., 1975). The effectiveness of the industrial inducement statutes would be greatly diminished, and the purpose of the statutes would be thwarted, if the proceeds of the bond sales were included in the franchise tax base of corporations which lease industrial plants built by parishes with the bond proceeds. The Court notes the Commerce and Industry position in its February, 1976, publication of tax exemptions for industries induced to locate in Louisiana:

“Thus does Louisiana once again demonstrate its willingness to set aside considerations of financial gain, in order to realize the honest gains of a long term partnership with industry.”

The Court does not perceive any ambiguity in the provisions of La.R.S. 39:991 et seq. insofar as that statute permits corporations to lease industrial sites from municipalities (defined in the statute to include parishes). The Collector, however, apparently feels that corporations which lease industrial plants constructed with bonds issued pursuant to La.R.S. 39:991 have in fact incurred debt and constructed the facility in their own name. The Collector, therefore, has adopted the position that La.R.S. 39:991 does not authorize the creation of a genuine lease, but rather authorizes a method whereby corporations can finance and construct industrial plants in their own name.

GCA is not assessed on the property tax rolls for any immovable property in the Parish. GCA has never applied for nor obtained a ten (10) year property tax exemption. The Parish is the owner of the tracts upon which the plant was constructed. The Collector’s position is also refuted not only by the terms of La.R.S. 39:991 itself, but also by reference to related statutory provisions. La.R.S. 39:992 provides that the industrial inducement bonds shall be authorized by the municipal government, and shall become debts of the municipal government. La.R.S. 39:992 also provides that these bonds shall be exempt from state taxation (a result which would not follow if the debt were incurred by the corporation itself.) La.R.S. 39:993 provides that in the case of default, bondholders may proceed against the government issuing the bonds. In Higgins, Inc. v. Walker, 129 So.2d 840 (La.App., 1st Cir., 1961) the court held:

“It is well settled that this court may not interpret either (of two statutory provisions) in such manner as to obliterate the other if the sections may otherwise be reasonably construed.” (Citations omitted).
“The general intent of law is the key to the whole statute and controls interpretation of the various parts...”

See also, Humble Pipe Line Company v. William T. Burton Industries, Inc., 253 La. 166, 217 So.2d 188 (1968); State v. St. Julian, 221 La. 1018, 61 So.2d 464 (1952); Board of Trustees of Finance Authority v. All Taxpayers, 336 So.2d 306 (La.App., 1st Cir., 1976); State, ex rel. Assistant District Attorney’s Association v. Theriot, 242 So.2d 49 (La.App., 1st Cir., 1970); Hoffpauir v. City of Crowley, 241 So.2d 67 (La.App., 3d Cir., 1970).

The Collector has taken the position that the municipal bonds issued in connection with the construction of GCA’s Calcasieu Plant are in reality borrowed capital of GCA within the meaning of the corporate franchise tax Statute. Such a position requires this Court to treat GCA as the owner of the new facility and dismiss the Parish as a mere interposed party. The Court is being asked to treat La.R.S. 39:991 et seq. as if those statutes created a mere fiction rather than the actual financing arrangement entered into by GCA and the Parish of Calcasieu. In view of the testimony and evidence, and the intent of the legislature in creating the industrial inducement program, this Court cannot accept the Collector’s argument.

The Collector relies heavily on HEP Development Corporation v. Mouton, 256 So.2d 744 (La.App., 1st Cir., 1971), wherein the Court held that the corporate franchise tax “must be interpreted to accord it full legislative intent, and that indulgence in technicalities will not be permitted to defeat the purpose of the law.” The financing arrangement between GCA and the Parish, however, can hardly be characterized as a “technicality.” Rather, the financing arrangement, and particularly GCA’s status as a lessee, is specifically sanctioned by La.R.S. 39:991. In any event, HEP Development is readily distinguished because in this case the Parish, not GCA, is the owner of the property and any default would result in the bondholders looking to the Parish and the property for recovery, not to GCA. .

Additionally, the very issue of ownership of this particular plant has been resolved by the Third Circuit Court of Appeal. In Traigle v. Parish of Calcasieu, 296 So.2d 411 (La.App., 3d Cir., 1976), the Court held:

“The Parish (of Calcasieu) is clearly liable for the (sales and use) taxes in question, as owner of the project...”

The Parish would clearly not be liable for any franchise tax as it is not the type of corporate entity the franchise tax embraces.

This Court need not reach the issue of “material equity” as it finds this financing transaction one specially sanctioned by the legislature and in this circumstance not resulting in any franchise tax liability in GCA.

Judgment in favor of GCA and against the Collector, dismissing this suit, will be signed accordingly.

Baton Rouge, Louisiana, this 10 day of January, 1980.

/s/ Douglas M. Gonzales DOUGLAS M. GONZALES JUDGE, DIVISION L 19TH JUDICIAL DISTRICT COURT


source: Caselaw Access Project

author: SAVOIE, Judge. PONDER, Judge,

license: Public Domain

text:
    Lloyd GUILLOT and Karen Sellers Guillot v. FISHERMAN’S PARADISE, INC., Flying Bridge Marina, Inc., Gilbert L. Dozier, and Gerald Strickland.
    No. 15037.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    Writ Granted Feb. 4, 1983.
    Daniel J. McGee, Mamou, and Duro J. Duplechin, Jr., Morgan City, for plaintiffs-appellants Lloyd Guillot and Karen Sellers Guillot.
    Charles M. Raymond, Baton Rouge, for defendant-appellee Fisherman’s Paradise, Inc.
    Felix Weill, Baton Rouge, for Gilbert L. Dozier (Individually) appellee.
    Thomas H. Watts, Baton Rouge, for Flying Bridge Marina, Inc., appellee.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

Plaintiffs-appellants appeal the trial court’s decision barring recovery for the death of their minor child. Appellants were the parents of the decedent, who drowned in a sewerage oxidation pond located on appellees’ property.

The trial court considered this matter under both ordinary negligence and strict liability.

On the question of negligence, the court concluded the defendants were negligent in failing to properly fence the oxidation pond, it being foreseeable that this kind of accident could occur. However, the court held appellants negligent in failing to provide adequate supervision for their child at the time of the accident.

On the question of strict liability, the court found the pond defective and such defect was “a” cause of decedent’s death. The defective condition resulted from improper fencing and lack of sloping sides which would aid in escaping therefrom. Further, the court held those actions constituting appellants’ contributory negligence were sufficient to constitute third party fault. Third party fault being a defense to appellees’ strict liability, recovery was denied.

The trial court noted particularly the Sullivan v. Gulf States Utilities Company, 382 So.2d 184 (La.App. 1st Cir.1980), writ denied, 384 So.2d 447 (La.1980), discussion on the underlying policy reasonings of Loescher v. Parr, 324 So.2d 441 (La.1975). As between two innocent parties, the owner or possessor of the thing should pay for any damages caused by the thing. Loescher, supra. Distinguishing the case at bar, the trial court observed two innocent parties were not involved here. Consequently, and in reliance on Sullivan, the court found the measure of conduct necessary to achieve the appellation “contributory negligence” the same as amounts to third party fault and dismissed appellants’ case.

Presently, the appellants allege: (1) they were not contributorily negligent; (2) if they were, their negligence was not a proximate cause of the injury; and (3) even if their negligence was a proximate cause of the injury, it was ordinary contributory negligence, permitting recovery under L.S. A.-C.C. 2317. Appellees’ assignments of error need not be addressed because of our disposition of this case.

At the time of the accident, decedent was 214 years old. Decedent wandered off when visiting his grandparents at their camp on the Toledo Bend Reservoir. Apparently, the decedent was missing for a short period (8-35 minutes) before a search was undertaken. Subsequently, his body was discovered in the oxidation pond.

The pond is approximately 120 yards from the gate of the fenced-in camp. Between the two lie two roads as well as a garbage dump area or, alternatively, a 3-foot fence. The oxidation pond was not visible from the camp gate.

The record establishes the area was unfamiliar to both the parents and the decedent. It was isolated and bordered on the Toledo Bend Reservoir. The day’s activities (i.e. cleaning the yard) would not have made adult supervision by either parents or grandparents impossible or inconvenient. Additionally, the gate to the camp was left open. This gate is the only non-water means through which to exit the camp property.

In light of these facts, we hold appellants were contributorily negligent and such negligence was a cause of the injury.

Appellants contend that if their negligence was a proximate cause of the injury, it was ordinary or “garden variety” contributory negligence. If correct, appellants could recover under the theory of strict liability (i.e. L.S.A.-C.C. 2317). This argument can be answered by application of the “but for” test. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980).

Appellants argue that “but for” the improperly fenced pond, the child would not have drowned. The trial court concluded that “but for” the lack of supervision, the child would not have drowned. Only where the trial court is clearly wrong may we substitute our judgment for theirs. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); Esta v. Dover Corporation, 385 So.2d 439 (La.App. 1st Cir.1980), writ denied, 392 So.2d 690 (La.1980).

Therefore, we conclude appellants’ recovery is barred under the theories of ordinary negligence and strict liability because of their failure to adequately supervise the deceased child.

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

AFFIRMED.

PONDER, J., dissents and assigns reasons.

PONDER, Judge,

dissenting.

I cannot agree that the actions of the plaintiffs constituted contributory negligence barring recovery under C.C. Art. 2315 or victim or third party fault barring recovery under C.C. Art. 2317.

The action pointed to by the trial court as contributory negligence, permitting the deceased to ride on a minibike with his older brother, has no relationship with the drowning in an oxidation pond. The child had been dropped off inside the gate within a short distance and within the eyesight of four adults. The riding of the minibike had ceased without adverse results. The open gate, with the older brother riding out and in on the minibike, does not constitute negligence under the circumstances, I believe. The inattention that allowed a child who had not wandered before, to escape the attention and eyesight of four adults working outside within a short distance of the child, who had no knowledge of danger of drowning in the opposite direction from the lake, does not amount to contributory negligence under C.C. Art. 2315 or victim or third party fault under C.C. Art. 2317, in my opinion.

The standard is best expressed in Smolinski v. Taulli, 276 So.2d 286, 290 (La.1973):

“A mother of small children is not required to chain them up or to act as their constant jailer in order to absolutely secure them from exposure to hazards negligently created or maintained by a tort-feasor. She is required only to use reasonable precautions, and her conduct in this regard is not negligent if, by a common-sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances.”

See also Smith v. Trahan, 398 So.2d 572 (La.App. 1st Cir.1980).

The defendants have the burden of proving contributory negligence and victim or third party fault. They have not borne that burden.

I therefore dissent.


author: LEAR, Judge.

text:
    Roy WELCH and Rosa Welch v. COMMUNITY MOTORS, INC., Chrysler Corporation and A.R.A. Manufacturing Company.
    No. 15044.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    Writs Denied Feb. 4, 1983.

      Maurice D. Robinson, Jr., Hammond, for plaintiffs.
    Carey J. Guglielmo, Baton Rouge, for Chrysler Corp.
    E. Wade Shows, Baton Route, for Community Motors.
    Peter Dazzio and George Anding, Jr., Baton Rouge, for A.R.A. Mfg. Co.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

This is a redhibition suit which arises from the sale of a 1977 Dodge Kary Van to Roy and Rosa Welch by Community Motors, Inc. Roy and Rosa Welch brought suit against Community Motors, Inc., Chrysler Corporation and A.R.A. Manufacturing. Community Motors, Inc. in turn instituted a third party demand against Chrysler Corporation and David Cooper d/b/a Cooper’s Automotive Warehouse Distributor.

Judgment was rendered on behalf of plaintiffs, Roy and Rosa Welch, and against Community Motors, Inc. and Chrysler Corporation, in sólido, rescinding the sale of the truck, returning the purchase price of $10,-469.44, with legal interest, and awarding plaintiffs $3,500.00 in attorney’s fees. In addition, Community Motors, Inc. was granted relief on its third party demand against Chrysler Corporation in the entire sum for which Community Motors, Inc. is liable and also awarding Community Motors, Inc. $3,500.00 in attorney’s fees. The plaintiffs’ claim against A.R.A. Manufacturing and Community Motors’ third party claim against David Cooper d/b/a Cooper’s Automotive Warehouse Distributors were dismissed. Community Motors, Inc. and Chrysler Corporation have appealed.

Plaintiffs purchased a 1977 Dodge Kary Van, sight unseen, from Community Motors on September 23,1977. They specified that they needed the vehicle for a business trip on September 29,1977, and requested delivery prior to that time. The vehicle was delivered at 1:30 a.m. on September 29, 1977.

Later on the morning of the 29th, when plaintiffs prepared to leave on their trip, they noted the following problems with the vehicle: a spring on the rear door was broken and consequently the door did not roll up and down easily; the sheet metal floor buckled; there were rust streaks on the body; and various screws were missing.

Plaintiffs testified that a short time into their trip the air conditioner began to' malfunction and the transmission began to slip. In addition, they found that the gas tank leaked around the top and therefore could not be filled to capacity. Upon returning home plaintiffs noted that the right front tire was worn down to the cords.

In addition to the above plaintiffs allege the following defects: the backup lights did not work, the tail pipe was hanging too low and the glove box would not open.

The work tickets in evidence indicate that, from the time plaintiffs took delivery on September 29, 1977, until the time they tendered the vehicle on January 5,1978, the vehicle was returned to Community Motors for repair on four separate occasions. Mr. Welch alleges that when he returned to pick up the vehicle on January 5,1978, a CB that he had installed was missing and he could see that all of the repairs had not been made. Community Motors alleges that at this time all of the repairs had been made. Mr. Welch did not test drive the vehicle; he did however tender it to Community Motors and thereafter instituted this suit.

Appellants Community Motors and Chrysler urge in separate appeals that the defects enumerated in plaintiffs-appellees’ original petition are not redhibitory in nature.

Civil Code article 2520 which defines red-hibition states:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

In order to sustain a suit in redhibition a purchaser must prove the following elements: (1) that the thing sold is absolutely useless for its intended purpose or its use is so inconvenient that had he known of the defect he would never have purchased it; (2) that the defect existed at the time of sale but was not apparent; and (3) that the seller was given an opportunity to repair the defect. Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir.1976).

Apparent defects, those which can be discovered by simple inspection, cannot form the basis for a redhibitory suit. LSA-C.C. 2521. The defects which plaintiffs noted upon first seeing the car (rear door broken, buckled floor, rust streaks on body, screws missing) are apparent defects and therefore are not redhibitory in nature.

Regarding the air conditioner, which was manufactured by A.R.A. Manufacturing and installed by David Cooper d/b/a Cooper’s Automotive Warehouse Distributor, plaintiffs testified that it leaked water and blew hot air. As a result of this complaint, Community Motors straightened a crumpled hose and recharged the unit with freon. There was conflicting testimony as to whether or not the problem continued; however, an A.R.A. representative testified that if the problem did recur it would have been due to the fact that plaintiffs were attempting to cool the vehicle with the rear door partially open, thereby causing the unit to freeze up.

With respect to the tire that had been worn down, John Evans, president of Community Motors, testified that front end alignment problems are not the responsibility of the dealer. However, Community Motors replaced the worn tire and had the front end aligned at their expense.

The remaining major defect of which plaintiffs complain is the gas tank. The record shows that when plaintiffs first brought the vehicle in for repair, Community Motors straightened a crimped hose on the gas tank and in so doing felt they had alleviated the problem. However, the leaking persisted and upon a second inspection Community Motors determined that a new grommet had to be ordered to repair the gas tank. As a result of the problem with the gas tank, plaintiffs were inconvenienced, because while awaiting the new part, they could not fill the gas tank to capacity and thus had to make frequent stops on their business trips.

The remaining defects (backup lights not working, tail pipe too low) were not sufficiently serious to be considered redhibitory in nature. In addition, the evidence in the record does not support plaintiffs’ allegation that there was a persistent problem with the transmission slipping.

Despite the presence of the proven defects during the three month period after purchase, plaintiffs were able to use the vehicle to conduct their business and in so doing put approximately seven thousand, six hundred miles on the vehicle. Because the defects which were present did not render the vehicle absolutely useless, the trial court was in error in granting a rescission of the sale.

However, the defects did diminish the utility of the vehicle and as such constitute a partial failure of consideration. Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir.1975). In instances where there has been a partial failure of consideration, the court is authorized to grant a reduction in the purchase price rather than a rescission. LSA-C.C. 2543; Cloud v. Huffman Motor Company, Inc., 416 So.2d 266 (La.App. 3rd Cir.1982).

A discussion of what is to be considered when calculating a reduction in price can be found in Menville v. Stephens Chevrolet, Inc., 300 So.2d 858, 861-862, (La.App. 4th Cir.1974), writ denied, 303 So.2d 186 (La.1974). In Menville the court said:

“When a judge orders reduction of the sale price, one of the principal elements in formulating the award is the cost of repairing the defects which existed at the time of the sale. The cost of repairs, however, is not necessarily the sole measure of the diminution of value resulting from these defects. If the defects are few in number and quickly and simply remedied, the cost of repair may well be the only consideration. But when the defects are numerous and the repairs lengthy and frequent, then a greater reduction is warranted, because a forewarned buyer would not reasonably pay the full price, reduced only by the cost of repairs, if he knew the extensive repairs of the defects would significantly curtail his use and cause him considerable inconvenience and aggravation. The diminution which the trial judge may decree under C.C. art. 2543 is theoretically the difference between the sale price and the price the reasonable buyer and seller would have agreed upon if they had known of the defects.”

In this case the record reflects the fact that all of the costs of repairing the vehicle have been borne by Community Motors. However, due to the problems experienced with the vehicle plaintiffs are entitled to a $400.00 reduction for aggravation and inconvenience caused by the defect in the gas tank and to a reduction of $100.00 for aggravation and inconvenience caused by the defect in the air conditioner.

Judgment is rendered in favor of plaintiffs and against Community Motors and Chrysler, in solido, in the amount of $400.00 for defects in the gas tank; because we do not find Community Motors to have been dilatory in performing the necessary repairs judgment is rendered granting Community Motors indemnification against Chrysler in this matter.

Further judgment is rendered in favor of plaintiffs and against Community Motors in the amount of $100.00 for defects in the air conditioner; judgment is rendered granting Community Motors indemnification against David Cooper d/b/a Cooper’s Automotive Warehouse Distributor in this matter.

In addition, because we do not find Community Motors to have been in bad faith, none of plaintiff’s attorney fees will be allowed against Community Motors. However, a manufacturer is presumed to be in bad faith. Borne v. Mike Persia Chevrolet Company, Inc., 396 So.2d 326 (La.App. 4th Cir.1981), writ denied, 401 So.2d 976 (La.1981). Therefore, plaintiffs are granted an award of $750.00 in attorney fees against Chrysler. In addition, Community Motors is granted an award of $750.00 in attorney fees against Chrysler. The original award of $3,500.00 in attorney fees to both plaintiff and Community Motors is reduced because we find it to be excessive. For the same reason, there will be no additional award of attorney fees for appeal. Costs are to be paid by defendant-appellant Chrysler Corporation and third party defendant David Cooper d/b/a Cooper’s Automotive Warehouse Distributor.

REVERSED IN PART, AMENDED IN PART, AND RENDERED.


author: LANIER, Judge.

text:
    Hazel HOLMES, etc. v. SOUTHEASTERN FIDELITY INSURANCE COMPANY, et al. Gladys Kilbourne McNABB, et al. v. SOUTHEASTERN FIDELITY INSURANCE COMPANY, et al.
    Nos. 15048, 15049.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      Ralph Brewer, Baton Rouge, for Hazel Holmes, etc., plaintiffs-appellants.
    J. Arthur Smith III, Baton Rouge, for Gladys Kilbourne McNabb, et al., plaintiffs-appellants.
    Richard B. Nevils, Baton Rouge, for Southeastern Fidelity Ins. Co., et ah, defendants-appellees.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit in tort for damages by the surviving wives and children of two men who were killed in an intersectional collision between an automobile (in which the de-ceaseds were passengers) and an 18 wheeler tractor-trailer. Jury verdicts were returned determining that the driver of the automobile was negligent and that the driver of the tractor-trailer was not. The trial court rendered judgment in accordance with these verdicts. Plaintiffs took this devolutive appeal.

I. FACTS

On December 14, 1979, at approximately 5:30 A.M. Isaac Brown was operating a 1974 Oldsmobile automobile owned by him in an easterly direction on Louisiana Highway 412 (Slaughter Road) in the Parish of East Feliciana, Louisiana. Peter J. McNabb was a passenger in the right front seat of the Brown vehicle and Willie Holmes was a passenger in the rear seat. At this same time and place, Ed Gwin was operating a 1978 Chevrolet 18 wheeler tractor-trailer owned by Johnny Sagona in a northerly direction on Louisiana Highway 67 (Plank Road). Gwin was within the scope and course of his employment with Sagona. The tractor-trailer, Sagona and Gwin were insured by Southeastern Fidelity Insurance Company. Highway 412 intersects Highway 67 from the west at an angle of 72V20 forming a T-type intersection. Highway 412 at its intersection with Highway 67 is controlled by a stop sign. On the eastern side of this intersection is a small business known as Doris’ Grocery. The collision occurred when the front of the tractor-trailer struck the right side of the Oldsmobile automobile in the northbound lane of Highway 67. As a result of this collision, Holmes and McNabb were killed. McNabb was survived by his wife, Mrs. Gladys Kilb-ourne McNabb, and four minor children, Peter James McNabb, Jr., Nicholle McNabb, Nadine McNabb and Frederick McNabb. Holmes was survived by his wife, Mrs. Hazel Holmes, and one minor child, Beverly Jean Holmes.

II. NEGLIGENCE OF ED GWIN

The essence of the appellants’ assignments of error is that the verdict of the jury finding that Ed Gwin was free from negligence is clearly wrong.

Gwin testified that on the date and at the time in question, he was driving the 18 wheeler truck in a northerly direction on Highway 67 in his proper lane of travel (northbound lane) at a speed of 50 miles per hour with his lights on. The purpose of his trip was to secure a load of gravel in the vicinity of Clinton, Louisiana. Gwin testified that when he was approximately two car lengths from the intersection of Highway 412, he observed a vehicle with its lights on approaching from his left (from the west) as that vehicle was passing the stop sign controlling Louisiana Highway 412. When he realized that the vehicle was not stopping, he hit his brakes and struck the vehicle in the northbound lane of travel of Highway 67. The force of the impact knocked his foot off of the truck’s brakes and at some point in time later, he was able to get his foot on the brakes and bring the vehicle to a halt on the right (east) shoulder of the roadway. Gwin estimated the speed of the Brown vehicle as it passed the stop sign and crossed the intersection at approximately 30-35 miles per hour.

Milton Dodson testified that he was in another 18 wheeler gravel truck following the truck driven by Gwin at a distance of approximately three and one-half to four truck lengths. Dodson’s testimony was substantially the same as that of Gwin, except that he estimated the speed of the Brown vehicle as it went through the stop sign and across the intersection at 35-40 miles per hour.

Isaac Brown testified that he was proceeding in his proper lane of travel on Highway 412 and that upon reaching its intersection with Highway 67, that he came to a stop at the stop sign. He looked to his right and observed a truck approaching at some distance down the roadway, but determined that he had sufficient time to negotiate the intersection to go to Doris’ Grocery located on the east side of Highway 67. Brown testified his car stalled in the middle of Highway 67. He took his vehicle out of gear, pumped the gas pedal several times, got the motor running, and had just put his vehicle back in gear when the impact occurred. Brown testified that at the time of impact he was not moving and that the front end of his vehicle was in the northbound lane of Highway 67 and the rear end of his vehicle was in the southbound lane.

Trooper William J. Thompson, Jr. investigated this accident shortly after it occurred. Trooper Thompson determined that the point of impact occurred in the northbound lane of Highway 67, that the front of the truck struck to the rear of center on the right side of the Brown vehicle, that the impact caused the Brown vehicle to proceed from the point of impact in a northeasterly direction for a distance of 63 feet where it collided with a parked vehicle located off of the roadway, and from there it traveled an additional 31 feet and came to rest against a fence 94 feet in a northeasterly direction from the point of impact. Thompson determined that the front of the truck traveled 212 feet from the point of impact to its final place of rest, that Highway 67 was 23 feet wide, that Highway 412 was 21 feet wide, and that the speed limit was 55 miles per hour. Thompson also located two sets of skid marks measuring 81 feet and 78 feet, respectively, which were left by the truck prior to its impact with the Brown vehicle. No skid marks were found beyond the point of impact.

Joseph H. Barnwell testified as an expert witness on accident reconstruction on behalf of the appellants. He testified that the average perception time of the ordinary driver is three-fourths of a second (the time between the initial perception of an object and the commencement of reaction) and that assuming Gwin was traveling 50 miles per hour (73 feet per second), that he traveled 55 feet between initial perception and commencement of reaction. Barnwell testified that the average reaction time of the ordinary driver of a truck was PA seconds and that at 50 miles per hour Gwin would have traveled 92 feet. Barnwell testified that in his opinion, it took 1.35 seconds to leave the 81 feet of skid marks prior to impact and that, accordingly, from Gwin’s initial perception of the Brown vehicle to the time of impact, 3.35 seconds had elapsed and his truck covered a distance of 228 feet. He further testified that it was 47 feet from the stop sign on Highway 412 to the western edge of Highway 67, that Highway 67 was 23 feet wide, that Brown’s automobile was 19 feet long, and that the Brown vehicle would have to travel 89 feet from the stop sign until it cleared the eastern edge of Highway 67. He then observed that if the Brown vehicle was traveling at 30 miles per hour (44 feet per second), that it could travel from the stop sign and clear the eastern edge of Highway 67 in two seconds and that, accordingly, it was impossible for this accident to occur if the speed of the Brown vehicle was that testified to by Gwin and Dodson. Barnwell conceded on cross-examination that the accident could have happened in accordance with the Gwin version if the Brown vehicle was going 15 miles per hour. Barnwell also conceded that he did not determine Gwin’s actual perception and reaction times, but used average values.

Barnwell further observed that pursuant to his calculations when Gwin first perceived the Brown vehicle, that he was 228 feet from the point of impact and that this was a distance greater than two car lengths from the intersection.

Barnwell testified that in his opinion Gwin was traveling between 61 and 71 miles per hour at the time that he initially perceived the Brown vehicle. He based this opinion primarily on the fact that the front of the truck traveled 212 feet from the point of impact to its final resting point. He further estimated that the speed of the truck immediately prior to impact was 48-59 miles per hour and that the truck lost 4-5 miles per hour in speed as a result of the impact. He testified that the average coefficient of friction (drag factor) for a road like Highway 67 was 0.65. Since the truck did not skid after impact and because for some unspecified period of time Gwin did not have his foot on the brakes of the truck after impact, Barnwell calculated the speed of the vehicle based on estimated coefficients of friction ranging between 0.3 and 0.46. Barnwell conceded that he did not know how long Gwin had his foot off of the brakes after impact and that he had estimated the range of the appropriate coefficients of friction. Barnwell testified that these calculations in part were based on the law of conservation of momentum which provides that the mass of a vehicle times its velocity plus the mass of the adverse vehicle times its velocity upon impact is equal to the mass of the first vehicle times its velocity after impact plus the mass of the second vehicle times its velocity after impact. At no point in his testimony did Barnwell explain what was the velocity of the Brown vehicle after impact nor did he demonstrate to the jury how he arrived at the calculation of a reduction of speed of the Gwin vehicle of 45 miles per hour caused by the impact nor did he adequately explain his calculation of 48-59 miles per hour immediately prior to impact.

Barnwell timed the actions of taking a vehicle out of gear, pumping the accelerator, and putting a vehicle back into gear, testified to by Brown, and determined that it would take ten seconds to perform these acts. Barnwell reasoned from this that if Gwin was going a lawful speed and was properly observant, he could have timely observed the disabled Brown vehicle and safely stopped the truck. He further was of the opinion that because of some smear marks on the paint of the Brown vehicle that Brown had commenced moving slightly forward at the time of impact. Barnwell further determined that the Brown vehicle came to rest 52 feet east of the eastern edge of Highway 67.

The finder of fact, be it judge or jury, should assess the credibility of witnesses, expert or lay, to determine the most credible and realistic evidence. Guidry v. Davis, 382 So.2d 250 (La.App. 3rd Cir.1980). In reaching conclusions, the finder of fact need not accept all of the testimony of any witness as being true or false and may believe and accept a part or parts of a witness’ testimony and refuse to accept any part or parts thereof. Ewing and Salter, Inc. v. Gafner Automotive & Machine Inc., 392 So.2d 762 (La.App. 3rd Cir.1980), writ denied 396 So.2d 933 (La.1981); LeBlanc v. Cordaro, 378 So.2d 1027 (La.App. 2nd Cir.1979); Payne v. New Orleans Public Service, Inc., 374 So.2d 189 (La.App. 4th Cir.1979). The opinions of expert witnesses are not binding on the finder of fact and are to be weighed the same as any other evidence. Trichel v. Louisiana State Highway Department, 402 So.2d 784 (La.App. 3rd Cir.1981); State v. Wilco Construction Co., Inc., 393 So.2d 885 (La.App. 4th Cir.1981); Gleason v. City of Shreveport, 393 So.2d 827 (La.App. 2nd Cir.1981), writ denied 397 So.2d 806 (La.1981); Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir.1979), writ denied 380 So.2d 102 (La.1980). The weight to be given expert testimony is dependent upon the professional qualifications and experience of the expert and the facts upon which the opinion is based. Middle Tennessee Council, Inc., Boy Scouts of America v. Ford, 274 So.2d 173 (La.1973); Thibodeaux v. Southeastern Fire Insurance Company, 399 So.2d 704 (La.App. 1st Cir.1981). The fact finder’s evaluation of expert and lay testimony will not be disturbed unless found to be clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); State, Department of Transportation & Development v. Estate of Aertker, 404 So.2d 316 (La.App. 3rd Cir.1981); Guidry v. Davis, supra.

Appellants argue that since the testimony of the parties is irreconcilable, that the physical facts surrounding the accident should be the determining factors as interpreted by their expert Barnwell. Hue v. Blanchard, 337 So.2d 1218 (La.App. 1st Cir.1976). Barnwell in his testimony conceded that the accident could have occurred in the manner described by Gwin and Dodson if the Brown vehicle was traveling at 15 miles per hour. Accordingly, the jury reasonably could have concluded that Gwin and Dodson were partially in error when they estimated Brown’s speed between 30 and 40 miles per hour and accepted Barnwell’s figure of 15 miles per hour.

Barnwell, in his testimony, conceded that there was no evidence of precisely how long Gwin’s foot was off of the brakes of the vehicle after impact and prior to coming to a halt. Since the entirety of Barnwell’s calculation of Gwin’s initial speed was based in part on an estimated range for the coefficient of friction used to determine the speed of the truck after impact, the jury could validly determine that Barnwell’s assumption was not precise or accurate and, accordingly, could have rejected this calculation, and the opinion on initial speed.

Brown testified that he was stopped at the time of impact and that the front of his vehicle was in the northbound lane and the back of his vehicle was in the southbound lane. Gwin, Dodson and Trooper Thompson all put the point of impact entirely in the northbound lane of Highway 67. The jury could have reasonably determined that the Gwin-Dodson-Thompson point of impact was correct and that Brown’s testimony was not worthy of belief. If the jury rejected Brown’s version of the facts, then such portions of Barnwell’s opinions which were based on the rejected testimony, such as the ten second delay due to stalling in the roadway, must also be disregarded.

Considering all of these facts and circumstances, we cannot say that the jury was clearly wrong in accepting Gwin’s version of the accident and rejecting the testimony of Brown and the expert witness Barnwell.

III. CONCLUSION

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

AFFIRMED.

      . At the conclusion of the evidentiary portion of the trial, the plaintiffs dismissed their claims against the insolvent driver of the automobile.


text:
    Bertina MART, individually and as agent for Carolyn Pharr v. SCHLUMBERGER, LTD. and Gunnar J. Teilman III.
    No. 15058.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    Carl J. Barbier, New Orleans, for plaintiff and appellant.
    Harold T. Buckley, Jr., New Orleans, for defendant and appellee.
    Sherman F. Raphael, New Orleans, pro se.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

Plaintiff, Bertina Mart, was injured in an automobile collision which occurred on May 12, 1979. She instituted this suit against the driver of the other vehicle, Gunnar J. Teilman, and his employer, Schlumberger, Ltd., on May 7,1980. Defendants answered in the form of a general denial on October 13, 1980.

On February 25, 1981, plaintiff’s attorney, Sherman F. Raphael, filed a motion to withdraw as counsel of record; and an order to that effect was signed on the same date. In his motion, Raphael expressly stated that he was withdrawing with full reservation of his rights under Louisiana Revised Statutes 37:218. On March 4,1981, Carl J. Barbier enrolled as plaintiff’s counsel of record.

Trial was held on June 4, 1981. At trial, defendants stipulated to liability and the ease went to trial on the issue of quantum. It was also stipulated that medical records and reports would be introduced in lieu of medical testimony. Raphael also appeared at trial, and, after assuring the trial court that he had filed an intervention for attorney fees allegedly earned pursuant to his contingency contract with plaintiff, was allowed to testify as to the amount of time he had spent in prosecuting the case. At the close of trial, the matter was taken under advisement.

Subsequently, on August 25, 1981, the trial court filed written “findings of fact and reasons for judgment into the record” in which it awarded damages in the sum of $5,586.50, representing $3,000.00 in general damages and $2,586.50 in special damages. The trial court also found that Raphael was entitled to one-half of the amount of attorney’s fees due under his contract with plaintiff and, accordingly, granted him a “lien and privilege” in the amount of $1,163.53 against all attorney’s fees collected by Bar-bier. Judgment was signed on August 25, 1981; and plaintiff timely appealed therefrom on September 24, 1981.

Plaintiff was injured when the car she was driving was hit from behind and driven into a light pole by a vehicle driven by Teilman. Plaintiff testified that the force of the collision propelled her forward into the steering wheel. She stated that she immediately experienced pain in her neck, head, legs, and back. Plaintiff was rushed to the emergency room of Terrebonne General Hospital, where she was x-rayed, given medication, and released. Two or three days after the accident, plaintiff consulted Dr. Jerry Levine, her family physician, for further treatment of her injuries.

Plaintiff testified that Dr. Levine gave her medication and placed her on a physical therapy program. She stated that she attended the therapy program for about two months. Thereafter, plaintiff returned to see Dr. Levine, still complaining of pain in her back and legs. On that visit, Dr. Levine referred plaintiff to Dr. Richard Landry, an orthopedic specialist.

Dr. Landry’s examination of plaintiff on August 13, 1980, revealed that there was limitation of motion in her cervical spine. Dr. Landry’s examination of plaintiff’s lower back revealed a mild spasm on the left side. X-rays taken at that time showed no gross abnormalities. Dr. Landry diagnosed plaintiff’s injury to be a cervical and lumbar strain with the slight possibility of a pinched nerve in her neck. Dr. Landry advised her to continue to attend physical therapy sessions for two weeks and then return for further examination.

Plaintiff testified that she attended her therapy sessions only two or three times because her mother no longer had her car and she could not find alternate transportation. Plaintiff apparently did not return to Dr. Landry’s office until December of 1980. At that time, she was examined by his partner, Dr. Gary Guidry. As a result of his examination, Dr. Guidry had plaintiff admitted to the hospital.

Dr. Guidry had a lumbar myelogram run on plaintiff while she was in the hospital. According to the medical records introduced into evidence in lieu of testimony, the mye-logram was normal. Plaintiff continued to complain of pain in her back and legs as well as severe headaches.

Shortly after her last stay in the hospital, plaintiff moved from Houma, Louisiana, to New Orleans. Upon the advice of her attorney, she consulted Dr. Bernard L. Ma-nale, an orthopedic surgeon, for further treatment on March 16, 1981. Dr. Manale’s report indicates that plaintiff was complaining of aching and stabbing pain in the lumbosacral region of her body. Plaintiff was also purportedly experiencing radiating pain in her right leg and calf almost to the ankle. She was also complaining of numbness in her right leg and foot. Dr. Manale performed another myelogram upon plaintiff, the results of which were normal. Dr. Manale felt that the negative myelogram helped to rule out severe disease. He did believe, however, that there was a possibility of a ruptured disc, despite the indications to the contrary.

Apparently, plaintiff sought no further medical treatment between her examination by Dr. Manale and the trial date. At trial, she testified that she continued to have pain in her back and legs.

On appeal, plaintiff contends that’ the trial court’s $3,000.00 award for general damages was clearly inadequate and should be raised to $15,000.00.. We note that before an appellate court can disturb an award of damages made by the trial court, the record must clearly reveal that the trier of fact abused its discretion in making the award. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

As noted earlier, in lieu of medical testimony, plaintiff introduced various medical records and reports at trial. Nowhere in that evidence is it indicated that she sustained a serious injury as a result of the accident. In fact, the most definite diagnosis, the one contained in Dr. Landry’s evaluation of August 13, 1981, indicated that plaintiff had sustained a combined cervical and lumbar strain. Both of the mye-lograms which were run on plaintiff were normal. Undoubtedly, as plaintiff testified, she has suffered a great deal of discomfort as a result of the accident. It does not appear that the record establishes that the trial court’s award is a clear abuse of its discretion. Accordingly, we will decline to increase the award.

Plaintiff also complains that the trial court “granted” a lien and privilege in favor of Mr. Raphael, plaintiff’s former attorney, pursuant to LSA-R.S. 37:218. That statute reads as follows:

“By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution or defense of which he is employed, whether the claim or suit be for money or for property. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition had been made.”

We find that Raphael complied with the provisions of LSA-R.S. 37:218 by recording his contract of employment with plaintiff in the suit record. In so doing, a lien and privilege was by law established in his favor.

We construe the trial court’s “granting” Raphael a lien and privilege as merely being a recognition in his favor of the lien and privilege established by LSA-R.S. 37:218. Thus, the trial court’s judgment does nothing more than recognize the fact of an already existing statutory lien and privilege; it clearly does not grant or award Raphael a money judgment. We find no error in the judgment of the trial court in this regard.

For the foregoing reasons, the judgment of the trial court is in all respects hereby affirmed. Costs on appeal are to be paid by plaintiff-appellant, Gunnar J. Teilman III.

AFFIRMED.


text:
    Mrs. Helen STRICKLAND v. AMBASSADOR INSURANCE COMPANY, et al.
    No. 15061.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      Ralph Brewer, Baton Rouge, for plaintiff-appellant.
    Terrence C. McRea, Baton Rouge, for James Deshotel.
    Eric A. Kracht, Baton Rouge, for defendants-appellees.
    Allen H. Danielson, Jr., New Orleans, for Ambassador Ins. Co.
    W. Lee Overton, Clinton, for Robt. Hall, Jr.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

This suit arises from an accident in which Michael Meeks (Meeks), minor son of plaintiff-appellant Helen Strickland (Strickland), was killed while attempting to jack up a mobile home. Plaintiff filed suit against several defendants, including James Desho-tel (Deshotel). Deshotel moved for and was granted a summary judgment. Strickland appeals from that judgment.

The facts, as related by Deshotel in his deposition, are not in dispute. On October 18, 1978, Meeks, who was employed part time after school to level mobile homes, asked his friend Deshotel to help him get a mobile home out of a ditch in which it was stuck. The mobile home was located in a field several miles outside of Jackson, Louisiana. The two boys drove out to the site of the mobile home, whereupon Meeks crawled beneath the mobile home and Desh-otel handed him several two by fours. Deshotel then sat on a brick at the side of the mobile home and watched Meeks work. Meeks placed a jack on top of the two by fours and positioned it under an I-beam. Meeks was lying on his left side and operating the jack with his right arm in an attempt to raise the mobile home. At this time, the jack slipped from under the I-beam and the mobile home fell, pinning Meeks beneath it. Deshotel then reached beneath the mobile home, retrieved the jack and attempted to position it so that he could raise the mobile home. However, Deshotel stated in his deposition that by this time Meeks had died. Deshotel then left the scene and went directly to the sheriff’s office.

In her appeal, plaintiff argues that Desh-otel had a duty to warn Meeks of the dangerousness of the situation and a duty to attempt to rescue Meeks after the accident occurred, and that Deshotel breached both of the above duties.

With respect to the first issue, we find that Deshotel had no duty to warn Meeks of the dangerousness of the situation. Deshotel was in no way involved in the direction of the operation and his participation was minimal (i.e., handing the two by fours to Meeks). It was Meeks who had worked with mobile homes prior to the accident; it was Meeks who was most familiar with the method for jacking up and leveling mobile homes; and therefore, it was Meeks, himself, who was in a position to know of and appreciate the danger of the situation.

It is widely recognized in the field of tort law that the courts do not impose a general duty to come to the aid of one who is in peril, that is, one will not be held legally liable for his inaction even though his assistance could have saved the injured party. There are, however, certain well-delineated circumstances under which a duty is imposed.

There is a legally recognized duty to render assistance in situations where the plaintiff’s peril or injury is due to negligence on the part of the defendant or in situations where one begins rescue and thereby discourages others from aiding the injured party. From the undisputed facts presented in Deshotel’s deposition it is apparent that Deshotel was in no way responsible for Meeks’ injury. Furthermore, Deshotel’s actions did not discourage others from aiding Meeks.

The courts will also find a duty to aid where there is a special relation between the parties. For example, the courts have found that the following relationships give rise to a duty: carrier and passenger; innkeeper and guest; shopkeeper and business visitor; jailer and prisoner; and school and pupil. W.L. Prosser, The Law of Torts, 340-343 (4th Ed. 1971). See also 12 F.F. Stone, Louisiana Civil Law Treatise: Tort Doctrine, 415-416 (1977). The facts in this case do not describe one of these traditional relationships, therefore Deshotel had no legal duty to render assistance to Meeks.

For the above reasons,, we affirm the judgment of the district court. Costs are to be paid by plaintiff-appellant.

AFFIRMED.


text:
    Abel Joseph BOUDREAUX, et als. v. TERREBONNE PARISH POLICE JURY.
    No. 15063.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      Gerald F. Lofaso, Houma, for plaintiff and appellant.
    Laurence E. Best, Houma, for defendant and appellee.
    Robert L. Picou Jr., Houma, for third party defendant — T. Baker Smith & Son, Inc.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit for damages in tort alleging trespass. The trial judge partially sustained a peremptory exception pleading the one year prescription of La.C.C. art. 3536 and ruled that the claims for damages occurring prior to April 20, 1977, were extinguished. After a trial on the merits, the trial court ruled that the Terrebonne Parish Police Jury (hereinafter referred to as Police Jury) had acquired a servitude for its constructions pursuant to the St. Julien Doctrine and thus the landowners could not recover damages for trespass, that the appellants failed to prove any damages subsequent to April 20, 1977, and that the appellants’ claims were prescribed by the provisions of La.R.S. 9:5624 and La.R.S. 13:5111. This devolutive appeal followed.

I. FACTS

The appellants are the owners of three contiguous tracts of land in Terrebonne Parish which are located about 16 miles below the City of Houma and front on the public road which runs parallel to the left descending bank of Bayou Grand Caillou in the vicinity of Lake Boudreaux. During the early part of 1974, the Police Jury contracted with T. Baker Smith & Sons, Inc. for engineering services in connection 'with a forced drainage project for the construction of a ring levee system in the vicinity of the appellants’ properties. Patterson & Ed-monson Construction Company was retained to do the construction work. As part of this project, a drainage and reservoir canal and a levee were built across the rear portions of the appellants’ properties. The portion of this construction on the properties of the appellants was completed on or before June 30, 1974. No servitudes or permissions were secured prior to construction.

The appellants discovered the existence of the canal and levee on their properties in July of 1975. They contacted an attorney who sent a letter to the Police Jury in January of 1976. This letter was transmitted by the Police Jury to T. Baker Smith & Sons, Inc. and shortly thereafter there was a meeting between the parties to attempt to settle the disputes. Apparently, these efforts failed. This suit was filed on April 20,1978. On September 11,1978, the Police Jury filed a peremptory exception pleading the liberative prescription of one year, La. C.C. arts. 3536 and 3537. On October 27, 1978, the trial judge rendered judgment partially granting and partially rejecting this plea of prescription. He ruled that all claims for damages for events of trespass occurring prior to April 20, 1977, were prescribed, but that all claims for damages subsequent thereto were not. On October 31, 1978, appellants filed a first supplemental and amending petition adding an additional prayer that the “... Police Jury be ordered to remove the illegal construction complained of herein on petitioners property and to place the land owned by petitioners as described hereinabove, in the same condition as it existed prior to the illegal construction and trespass.” On September 24, 1979, the Police Jury filed a third party demand against T. Baker Smith & Sons, Inc. for indemnification alleging that as Engineer on the project, it was responsible for securing the necessary servitudes and rights-of-way and failed to do so. On February 21, 1980, T. Baker Smith and Sons, Inc. filed a peremptory exception pleading the prescriptions of La.C.C. arts. 3536 and 3537, La.R.S. 9:5624 and La.R.S. 13:5111, and filed their answer to the third party demand of the Police Jury. On February 28, 1980, the Police Jury filed a supplemental answer pleading the liberative prescriptions of La.R.S. 9:5624, La.R.S. 13:5111 and La.C.C. art. 3537 and alleged that it had acquired a servitude for the canal and levee pursuant to the St. Julien Doctrine. On February 29, 1980, the appellants filed a second supplemental and amending petition attacking the constitutionality of the St. Julien Doctrine and again praying for the removal of the “illegal” construction from their properties.

II. PRESCRIPTION

A. CLAIMS FOR DAMAGES PRIOR TO APRIL 20, 1977

On October 27, 1978, the trial judge partially sustained the exception of prescription filed by the Police Jury and ruled that all claims of the appellants for alleged events of trespass occurring prior to April 20,1977, were prescribed. The record reflects that notice of this judgment was mailed to counsel for the parties on November 7, 1978. A judgment that determines the merits of a case in whole or in part is a final judgment. La.C.C.P. art. 1841. The judgment of the trial court partially granting the plea of prescription and dismissing all claims for damages prior to April 20, 1977, disposed of a part of the merits of the case and is thus an appealable judgment. La.C.C.P. art. 2083; Barrios v. Sara Mayo Hospital, 224 So.2d 846 (La.App. 4th Cir.1969). The record does not reflect that a timely appeal was taken from this adverse judgment by the appellants and it is now res judicata. La.C.C. arts. 2285, 2286 and 3556(31); R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980).

B. ARTICLE 3536 OF THE CIVIL CODE

Claims for damages in tort for trespass pursuant to La.C.C. art. 2315 are prescribed in one year pursuant to La.C.C. art. 3536. Where land has' been damaged by a tort, such as a trespass, the prescriptive period commences to run "... from the date knowledge of such damage is received by the owner thereof.” La.C.C. art. 3537; Dean v. Hercules, Incorporated, 328 So.2d 69 (La.1976); Kreher v. T.L. James & Company, Inc., 274 So.2d 734 (La.App. 4th Cir.1973); Coussons v. California Company, 201 So.2d 695 (La.App. 2nd Cir.1967). The continued existence of a construction unlawfully placed on land by virtue of a trespass does not suspend or interrupt this prescriptive period. Culotta v. Police Jury of Ascension Parish, 316 So.2d 463 (La.App. 1st Cir.1975), writs refused with reasons, 320 So.2d 561 (La.1975); Patin v. Stockstill, 315 So.2d 868 (La.App. 1st Cir.1975); Schouest v. Texas Crude Oil Co., 141 So.2d 155 (La.App. 1st Cir.1962), writs refused— not published (La.1962); CONTRA: Joseph A. Neyrey, General Contractor, Inc. v. Louisiana Power & Light Company, 347 So.2d 266 (La.App. 4th Cir.1977), writ denied, 350 So.2d 897 (La.1977). Thus, pursuant to Article 3536, all claims for damages for trespass of the appellants were prescribed as of August 1,1976, if that prescriptive period is applicable.

C. LA.R.S. 9:5624

La.R.S. 9:5624 provides a special prescriptive period which is applicable in the situation when private property is damaged for public purposes. Any and all actions for such damages are prescribed in two years from the time that the damages are sustained. This statutory provision has been applied when private property is damaged for public purposes incidental to expropriations (Bourree v. A.K. Roy, Inc., 232 La. 149, 94 So.2d 13 [1957]; 11 La.L.Rev. 36 and 37, [1950]) and conventional servitudes (Miller v. Colonial Pipeline Company, 173 So.2d 840 [La.App. 3rd Cir.1965], writ refused, 247 La. 1029, 175 So.2d 644 [La.1965]), or when property adjacent to a public highway construction site is damaged (Nuckolls v. Louisiana State Highway Department, 337 So.2d 313 [La.App. 2nd Cir.1976]; Florsheim v. Department of Highways, 201 So.2d 155 [La.App. 2nd Cir.1967]). This prescriptive period is not applicable when the act which caused the damages was not a necessary consequence of the public purpose construction project. Perkins v. Simon, 265 So.2d 804 (La.App. 3rd Cir.1972). The construction by the Police Jury of the canal and levee in connection with a ring levee system to drain the property of the appellants and others and protect it from tidal overflow from Lake Boudreaux is obviously for a public purpose. In Nuckolls v. Louisiana State Highway Department, supra, at page 315 of the Southern Reporter appears the following:

“The statute declares that an action for ‘any and all damages’ must be brought within two years from the time ‘damages are sustained.’ The purpose of the statute is to limit the exposure of the state and its political subdivisions to liability in connection with the construction of public works to a reasonable period of time. The language employed when construed in the light of the purpose of the statute precludes any suit being brought after two years from the first occurrence of any damage after the completion of the public works....” (Emphasis added).

The exception of prescription grounded on this statutory provision was properly upheld.

When two statutes applicable to the same subject appear to be in conflict, the statute that is more specifically directed to the matter at issue must prevail as an exception to the statute that is more general. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980) and the cases cited therein. Thus, in the instant case, where the petition alleges a claim for damages to private property as the result of a project for public purposes La.R.S. 9:5624 must prevail over La.C.C. art. 3536, and is applicable.

III. CONCLUSION

For the foregoing reasons, the plea of two year prescription under La.R.S. 9:5624 is sustained as to all claims of the appellants. The judgment of the trial court is affirmed. The appellants are to pay all costs of this appeal.

AFFIRMED.

      . This is not an action for compensation for the value of land and/or for severance damages when property is taken or used by virtue of expropriation (Article I, § 4, La. Const. of 1974; La.R.S. 19:1, et seq.), appropriation (Article VI, § 42, La. Const. of 1974; La.C.C. art. 665), or the St. Julien Doctrine (La.R.S. 19:14; Lake, Inc. v. Louisiana Power & Light Company, 330 So.2d 914 (La.1976); Gumbei v. New Orleans Terminal Co., 186 La. 882, 173 So. 518 (1937); St. Julien v. Morgan Louisiana & Texas Railroad Company, 35 La.Ann. 924 (La.1883); 51 Tul.L.Rev. 375 (1977).

      . A.K. Roy, Inc. v. Board of Commissioners for Pontchartrain Levee District, 238 La. 926, 117 So.2d 60 (1960); State, Department of Highways v. Champagne, 371 So.2d 626 (La.App. 1st Cir.1979), reversed in part on other grounds, 379 So.2d 1069 (La.1980).

      . La.R.S. 9:5624 provides:
      “When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run when the damages are sustained.”

      . La.R.S. 13:5111 provides:
      “A. A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their . respective agencies shall prescribe three years from the date of such taking. “B. The rights of the landowner herein fixed are in addition to any other rights he may have under the constitution of Louisiana and existing statutes, and nothing in this Part shall impair any constitutional or statutory rights belonging to any person on September 12, 1975.”

      . This amendment did not change the nature of this suit as one in tort for damages for trespass. See Schouest v. Texas Crude Oil Co., 141 So.2d 155 (La.App. 1st Cir.1962), writs refused — not published (La.1962).

      . In addition to the cases cited in footnote 1, see also Harrison v. Louisiana Power and Light Co., 288 So.2d 37 (La.1973); Robco, Inc. v. Consolidated Sewerage District of City of Kenner, 400 So.2d 313 (La.App. 4th Cir.1981); Rogers v. Louisiana Power & Light Company, Inc., 391 So.2d 30 (La.App. 3rd Cir.1980); Holt v. City of Bossier City, 384 So.2d 495 (La.App. 2nd Cir.1980); State, Department of Highways v. Poole, 243 So.2d 539 (La.App. 1st Cir.1970).

      . This statutory provision is not applicable to claims for compensation for the value of property and/or severance damages for the taking or use of property pursuant to an expropriation, an appropriation, or a St. Julien servitude. A.K. Roy, Inc. v. Board of Commissioners for Pontchartrain Levee District, 237 La. 541, 111 So.2d 765 (1959); Greater Baton Rouge Airport District v. Hays, 339 So.2d 431 (La.App. 1st Cir.1976); Cruell v. Jefferson Parish, 216 So.2d 604 (La.App. 4th Cir.1968).

      . The three year prescriptive period of La.R.S. 13:5111 is not applicable under the allegations and facts of the instant case. That prescriptive period applies where there has been a taking of property other than through an expropriation proceeding and is for compensation for the value of the property taken. The claim in the instant case alleges trespass and seeks the ejectment of the Police Jury and thus asserts that there was no valid taking of a legal property right. Article I, § 4, La. Const, of 1974.

      . Because of our ruling on the prescription issue, it is not necessary to reach the issues of whether or not the appellants proved any com-pensable damages or whether or not the Police Jury obtained a valid servitude under the St Julien Doctrine.


text:
    Henry BRIDGEWATER v. STATE of Louisiana Through the DEPARTMENT OF CORRECTIONS.
    No. 15069.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    Writ Granted Feb. 4, 1983.

      Gregory F. Gambel, New Orleans, for plaintiff-appellee, Henry Bridgewater.
    Houston T. Penn, Asst. Atty. Gen., Baton Rouge, for defendant-appellants, State of La. Through the Dept, of Corrections.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

Plaintiff-appellee, Henry Bridgewater (Bridgewater), an inmate at the Louisiana State Penitentiary (LSP) at Angola, Louisiana, filed suit against defendant, State of Louisiana through the Department of Corrections (the Department), seeking damages for injuries he sustained at LSP. After a trial on the merits before a commissioner of the Nineteenth Judicial District Court, judgment was rendered by the district court in favor of plaintiff in the amount of $5,000.00. From that judgment, defendant has appealed.

Plaintiff normally performed janitorial tasks. On Sunday, February 18, 1973, plaintiff was ordered to work in the license tag manufacturing plant at the prison. At that time an LSP employee instructed plaintiff to use a sheet metal shear to cut cardboard backing, which was used in the shipment of finished license plates. Plaintiff complained to the supervising employee that this was not his job. The LSP employee then informed plaintiff that he had no one else to do the work, because it was not a regular work day, and again instructed plaintiff to begin operating the machine. Plaintiff complied. At some later time a piece of cardboard became stuck in the machine. In attempting to dislodge the cardboard, plaintiff put his hand under the cutting blade and somehow accidentally struck the foot bar, which activated the machine and amputated two of his fingers on his left hand.

Without objection, the commissioner inspected the machine which injured plaintiff. However, plaintiff objected to certain aspects of his re-examination after the demonstration. He further objected to the testimony of a witness concerning the present day operation of the machine. Defendant assigns the sustaining of these objections as error by the commissioner.

At trial, plaintiff was subjected to both direct and cross examination. At the time plaintiff was excused, defendant’s attorney stated that:

“I would like to reserve Mr. Bridgewa-ter subject to recall him concerning some things that we may bring out in the visit to the metal tag plant once the court has viewed the machine.” [Emphasis supplied.]

Upon being recalled, defendant attempted to question plaintiff concerning his operation of the machine at the time he was injured, rather than concerning facts which were brought out by the court’s inspection of the machine. Plaintiff objected to this recross examination and his objection was sustained.

We find that the commissioner was correct in sustaining this objection. Defendant had ample opportunity to and did question plaintiff when he was initially called as a witness. Further, his reservation of his right to recall plaintiff only concerned testimony as to facts which may have been brought out by the court’s inspection. As defendant’s questions were not within the scope of his reservation, and plaintiff had previously been examined concerning his knowledge and operation of the machine, we find that the commissioner did not abuse his discretion in excluding this testimony.

Defendant further assigns as error the commissioner’s refusal to allow a witness, Mr. McKenzie, to testify concerning the present day operation of the machine. We find, however, that the commissioner did not abuse his discretion in disallowing the testimony of Mr. McKenzie.

Defendant argues that McKenzie’s testimony was necessary to inform the commissioner of the basic operation of the machine, including the location and use of the on-off switch and the foot bar. It is obvious from the record that the commissioner’s inspection of the machine adequately informed him of its basic operation and the location of these things. We, therefore, find that Mr. McKenzie’s testimony in this regard was unnecessary.

Plaintiff further objected to Mr. McKenzie’s testimony concerning the amount of pressure required on the foot bar in order to activate the machine. In objecting to this testimony, plaintiff argued that testimony as to the present day operation of the machine should be excluded because of the possibility that the machine had been altered since the time of plaintiff’s accident and, therefore, its present day operation was not relevant in proving facts concerning its operation at the time of plaintiff’s accident. Unfortunately, defendant did not make a proffer of this testimony, as he had a right to do. Had he done so, he may have been able to lay a proper foundation in order to show that the machine’s present day operation presently demonstrated its operation at the time of the accident. However, as plaintiff did not make a proffer of this testimony, his argument is conjectural and we are unable to determine from the record whether this testimony should have been admitted. From the record which is before us, we do not find that the commissioner abused his discretion in disallowing this testimony.

Defendant next assigns error to the commissioner’s finding of liability and plaintiff’s freedom from contributory negligence.

An employer is under a duty to provide its employees with a reasonably safe place to work. This would include equipment used in connection with that work. LSA-R.S. 23:13; Lytell v. Hushfield, 408 So.2d 1344 (La.1982). Further, the department owes prison inmates the duty of providing equipment which is safe for whatever tasks inmates may be required to perform. Reed v. State, Department of Corrections, 351 So.2d 788 (La.App. 1st Cir.1977).

The evidence indicates that the metal shearing machine was designed to be used with and was manufactured and delivered to LSA with a guard which allowed only a one-quarter inch opening to the blade. Without the guard, a space of two and one-half inches is available. The record further indicates that the guard was removed from the machine after it was delivered to and while in the custody of LSP. The guard was removed by the department so that the shear could be used to cut cardboard. We find from the record that this guard was designed to prevent and would have prevented the type of injury suffered by plaintiff. Thus, we agree with the commissioner’s finding that the department was negligent in removing the guard.

The last issue raised by defendant is that of plaintiff’s contributory negligence.

Contributory negligence must be determined in the light of the circumstances of each case. Harris v. Gulf States Utilities Co., 391 So.2d 1270 (La.App. 1st Cir.1980). The record indicates that plaintiff had used this machine on a number of prior occasions and had, in fact, operated it on that day for some time prior to the accident. The record is also clear that it was plaintiff’s foot which struck the control bar and activated the cutting blade. From the record, we find that plaintiff was aware of the operation of this machine and of its essentially dangerous nature and that plaintiff was negligent in allowing his foot to come in contact with the bar and activate the cutting blade.

While the commissioner found that the defense failed to establish any contributory negligence by plaintiff, we find from a reading of the record as a whole that plaintiff’s negligence contributed to his injuries and the conclusion to the contrary by the commissioner is clearly wrong and must be reversed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the foregoing reasons, the judgment appealed from is hereby reversed and judgment is hereby rendered in favor of defendant, the State of Louisiana through the Department of Corrections, dismissing plaintiff’s suit. All costs, both at trial and on appeal, are to be paid by plaintiff-appel-lee, Henry Bridgewater.

REVERSED AND RENDERED.

      . In his report, the commissioner described the machine as follows:
      “The shears are a large machine containing a stationary blade or cutting edge and a second moving blade which is activated by a large bar beneath the machine. Stepping on the bar causes the cutting blade to drop, cut whatever is beneath it and return to its position.”