author: LOTTINGER, Judge.

text:
    Emily Deen NELSON v. Robert POWERS, Jr., Willie J. Mouton, Affiliated Foods, Incorporated, United States Fidelity and Guaranty Company, Highlands Insurance Company, Christopher C. Watkins, Greyhound Lines, Incorporated, Floy Lee Fudge, Jr., and Slaughter Transport Corporation.
    No. 13891.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.

      James A. George, George & George, Ltd., Baton Rouge, for plaintiff-appellant/appel-lee Emily Deen Nelson.
    Frank M. Coates, Jr. of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-appellee Highlands Ins. Co.
    Anthony J. Clesi, Jr. of Lane & Clesi, Baton Rouge, for defendants-appellees Affiliated Foods, Inc., Willie J. Mouton and U. S. Fidelity and Guaranty Co.
    David W. Robinson of Watson, Blanche, Wilson & Posner, Baton Rouge, for defendants-appellants/appellees Floy Lee Fudge, Jr. and Slaughter Transport Corp.
    Carey J. Guglelmo of Dale, Owen, Richardson, Taylor & Matthews, Baton Rouge, for defendants-appellees Greyhound Lines, Inc. and Christopher C. Watkins.
    Arthur Neal Bagwell, White Castle, for defendant-appellee Robert Powers, Jr.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This personal injury and wrongful death suit arises out of a 1977 rear-end collision on the elevated portion of Interstate 10 in the Atchafalaya Basin in Iberville Parish, Louisiana. From a jury judgment in favor of the plaintiff, Emily Deen Nelson, and against two of the defendants, the plaintiff brings this appeal. She contends principally that the jury should have held two of the other defendants liable for the $1.1 million award. Those two defendants took protective appeals to preserve their rights in the event the judgment in their favor is reversed.

In the pre-dawn hours of August 22, 1977, Floy Lee Fudge, Jr. driving an 18-wheeler for Slaughter Transport Corporation, pulled his rig onto 1-10 at Lafayette, Louisiana. As Fudge travelled eastbound 1-10 towards Baton Rouge, he received communications over his CB radio that an apparently drunken driver, Robert Powers, Jr., had managed to enter the eastbound lanes of I — 10 in the wrong direction. Fudge began radio communications with another 18-wheel driver, the identity of whom has never been discovered. This unidentified driver was called “Truck X” at trial and will be so identified herein.

Fudge and Truck X, realizing that the drunken Powers was heading their way in the wrong direction, travelled side by side on the interstate in an effort to stop the Powers vehicle, prevent it from causing an accident and get it turned around. About three miles east of Whiskey Bay, the two truckers began to converge on Powers’ Thunderbird. They slowed as Powers approached, and finally brought the trucks to a stop, blocking both lanes of the interstate highway. Fudge turned on his spotlight as Powers approached, and Powers finally stopped his car about six inches in front of Fudge’s truck. Fudge testified he flipped his emergency flashers on before he stopped. After stopping he alighted from his cab and slid across the hood of Powers’ T-Bird where the driver of Truck X was already talking to Powers.

As these actions were transpiring, a Greyhound bus driven by Christopher Watkins and heading eastbound on 1-10 pulled to a stop behind Fudge. Watkins testified that he also switched the bus’ emergency lights on before he stopped. Immediately behind the bus was the plaintiff’s pickup truck, driven by Mrs. Nelson and occupied by her husband, Gilman Howard Nelson. The plaintiff stopped her truck behind the Greyhound bus. While this string of vehicles rippled to a stop on the highway, and while Fudge and the driver of Truck X were attempting to turn Powers around, another 18-wheeler driven by Willie J. Mouton for Affiliated Foods, Inc. smashed into the rear of the plaintiff’s pickup at a speed of 45 to 68 miles per hour. The impact crumpled the plaintiff’s pickup, sandwiching it between Mouton’s 18-wheeler and the bus. Mr. Nelson was killed instantly and Mrs. Nelson was severely injured. Evidence at trial revealed that from the time Fudge and Truck X stopped until the time the accident occurred, anywhere from 1% to 5 minutes elapsed.

Mrs. Nelson brought this suit against Powers, who was imprisoned and impecunious at the time of trial; Mouton and Affiliated Foods, Inc.; United- States Fidelity and Guaranty Company (USF&G), the insurer of the Affiliated Foods truck; Highlands Insurance Company, the excess insurer of the Affiliated Foods truck, Watkins and Greyhound Lines, Inc.; and Fudge and Slaughter Transport Company (Slaughter).

Fudge and Slaughter filed third party demands against the other defendants, and Greyhound filed an intervention seeking damages for repairs and loss of the use of the bus. A number of exceptions were also filed, none of which is pertinent on appeal.

Prior to trial, the plaintiff settled with all of the defendants except Powers, Fudge and Slaughter Transport.

At the trial, which was held before a jury, the negligence vel non of all drivers was submitted to the jury on interrogatories. The jury concluded that Mouton and Powers were negligent but that Watkins and Fudge were not. For the wrongful death of Mrs. Nelson’s husband, the jury awarded $300,000.00; for Mrs. Nelson’s own injuries, the jury awarded $800,000.00. Because Mouton, who through his employer was the only pecunious defendant found negligent by the jury, had already settled with the plaintiff, the total of her award was the amount for which she settled. All other claims were dismissed by the court.

SPECIFICATIONS OF ERROR

The plaintiff contends on appeal that the jury erred in finding Fudge not negligent. Primarily, she claims Fudge was under a statutory duty to refrain from stopping and to warn other drivers under the provisions of La.R.S. 32:141 and La.R.S. 32:368. She also complains of “faulty and inadequate jury instructions.”

NEGLIGENCE: LA.R.S. 32:368

La.R.S. 32:368 imposes a duty upon drivers of “disabled” trucks and certain other vehicles to display warning devices during periods of low visibility when the vehi-cle is disabled on the travelled or shoulder portion of the highway. The statute is a safety measure designed to protect life and property on the highways by providing some type of warning signals to motorists approaching disabled vehicles. Sutton v. Langley, 330 So.2d 321 (La.App. 2nd Cir. 1976), writ denied, 333 So.2d 242, cert. denied, 332 So.2d 805, 820 (La.1976).

The key to the determination of the applicability of La.R.S. 32:368 to this case is the meaning of the term “disabled.” Fudge and Slaughter maintain that the 18-wheeler driven by Fudge was not disabled within the purview of the statute. In Badeaux v. Patterson Truck Line, Inc., 247 So.2d 875 (La.App. 3rd Cir. 1971), writ refused 259 La. 77, 249 So.2d 209 (1971), our brethren on the Third Circuit held that the definition of the word “disabled” need not be limited to circumstances involving mechanical failure. Disability may also result from the “influence of external phenomena.” 247 So.2d at 881. “Certainly when such influence is so intense as to prevent the movement of a vehicle, that vehicle is just as disabled as one which cannot move due to mechanical failure.” Id.

In Badeaux, a thick blanket of smog which made the road impossible to see was held to be an “external phenomena” sufficient to disable a truck whose driver had stopped on the travelled portion of the highway. The court noted that even though the lights on the truck were on and functioning, “the conditions of the atmosphere . . . made it extremely difficult for other motorists to see the stopped truck.” Id. Other factors also obscured the visibility of the parked truck, and the testimony indicated that the driver had ample time to place warning devices.

Fudge and Slaughter contend that the existence of another vehicle on the highway is not such an “external phenomena” as to render the Fudge truck disabled under the Badeaux interpretation. Although the presence of a vehicle travelling the wrong way on a high speed highway is indeed unusual and is perhaps a phenomenon, we think the Third Circuit decision contemplates a condition or phenomenon of such duration and intensity that more than a temporary stop is required. The facts and circumstances of each case will, of course, be controlling as to whether a stop is temporary. If La.R.S. 32:368 were interpreted to require the placement of warning devices for every temporary obstruction or condition that forces a truck driver to come to a stop, the consequences would be absurd. We agree with the Third Circuit that some atmospheric conditions, like the smog in that case and like heavy fog or rain in other situations, can be sufficiently intense to “disable” vehicles within the meaning of La.R.S. 32:368. If the condition or phenomenon requires more than a temporary stop or if the intensity of the condition seriously impedes or obstructs the vision of other motorists, a driver subject to the provisions of La.R.S. 32:368 must set out the prescribed warning devices if he stops.

In the case at bar, the Slaughter truck experienced no mechanical difficulties and the stop was only temporary in nature. The atmospheric conditions were clear and dry, and the night time visibility was good. Fudge activated his emergency flashers before stopping, and the flashers were easily observed by the Greyhound driver who also turned his flashers on to warn the plaintiff and others behind her. We hold, therefore, that the Slaughter truck was not “disabled” within the meaning of La.R.S. 32:368.

Even if we assume, for the sake of argument, that Fudge’s truck was “disabled” under the terms of La.R.S. 32:368, his failure to place the warning devices cannot be said to be the legal cause of the accident that resulted in this case. In other words, if Fudge breached his duty to warn under the statute, the breach of that duty was not the legal cause of the injury which befell the plaintiff. From the evidence in the record, we are of the opinion that Mouton possibly could not and probably would not have seen or heeded the devices prescribed by La.R.S. 32:368 any more than he saw or heeded the emergency flashers on the Greyhound bus. See Liberty Mutual Insurance Company v. Allstate Insurance Company, 220 So.2d 182 (La.App. 1st Cir. 1969). Mouton admitted seeing emergency flashers in the right lane of traffic where Truck X had stopped but he did not slow down because he figured the left lane was clear. The preponderance of the evidence at trial reveals that the emergency flashers on the Greyhound bus were on, working and visible. Mouton simply failed to see them. His negligence, along with the negligence of Powers, formed the legal cause of this tragedy.

NEGLIGENCE: 32:141

Under La.R.S. 32:141(A) no vehicle may be left standing upon the travelled part of a highway “when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.” Subsection C of the statute provides that any vehicle left parked on the highway at night “shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.” La.R.S. 32:141(C).

The peculiar circumstances confronting Fudge in the early morning hours of August 22, 1977 made it impossible for him to stop his truck off the travelled part of 1-10. His laudable purpose was to stop a drunken driver. The means which materialized for him to accomplish this purpose was the appearance of another 18-wheel driver who, together with Fudge, effectively blocked Powers’ path. Just as Fudge could not pull off the travelled part of the highway, he likewise could not leave an unobstructed width of the highway opposite his truck open to traffic because Truck X was in the opposite lane. The crystal clear vision of hindsight shows that Truck X, after seeing Powers stopped in front of Fudge, should probably have pulled his rig in front of the Powers’ vehicle so that one interstate lane would have remained opened. But he did not. And, in any event, such a maneuver could only have been done by Truck X. Fudge could not move his truck because Powers was in front of him. We hold, therefore, that Fudge did not violate La.R.S. 32:141(A). We also hold that he displayed appropriate signal lights to warn approaching traffic. He therefore complied with La.R.S. 32:141(C).

NEGLIGENCE GENERALLY

Finding no violation of either statute, we must address the issue of whether Fudge was negligent under any other standard of conduct. The jury found he was not. As a truck driver attempting to stop a drunken driver from endangering the lives of others, Fudge owed a duty to act reasonably under the circumstances. The evidence bears out the jury’s finding that Fudge acted prudently under the facts and circumstances confronting him. He turned on his emergency flashers before stopping and tried to get Powers turned around. Unfortunately, this tragic accident marred what otherwise was a conscientious effort by two men to protect others from a very dangerous situation. Fudge’s conduct was arguably a cause-in-fact of the accident, but Fudge breached no duty to the plaintiff in this case. He acted reasonably under the circumstances. He was not negligent. The breach of duty by Powers and Mouton caused this accident.

JURY INSTRUCTIONS

The plaintiff makes a number of complaints regarding the jury instructions either refused or given by the trial court. First, she contends that the trial court erred in failing to instruct the jury that a vehicle under La.R.S. 32:368 need not experience mechanical failure to be disabled, but may also be disabled by the influence of external phenomena. The record reveals that the trial court charged the jury as follows in regard to a disabled vehicle:

“Although the popular definition of a disabled vehicle involves mechanical failure,' it need not be so limited and- you may apply your common experience in determining whether any vehicle in this accident was disabled.”

We discussed the issue of disability earlier in this opinion and found that the Fudge vehicle was not disabled under the provisions of La.R.S. 32:368 either mechanically or as a result of an external phenomenon. The trial court’s instruction expressly stated that disability was not necessarily limited to mechanical failure. We find the instruction was sufficient.

Next, plaintiff contends that the trial court erred in failing to charge the jury that La.R.S. 32:368 does not permit a driver who is required by the statute to put out flares to be the judge of whether flares would be effective. The statute in this case does not purport to give a driver discretion as to whether flares should be put out. The judge read the entire statute to the jury, which was allowed to take a copy of the law with it during deliberations. Failure to charge the jury that the statute does not allow the driver any discretion whether to put out flares was not error.

The plaintiff next contends that the trial court erred in failing to charge the jury that the mere possibility that the accident would have occurred despite the presence of warning devices does not break the chain of causation and absolve Fudge from blame. Although this may be a correct statement of the law, we do not find that the trial court erred in failing to give this direct charge. The trial court’s instructions to the jury, taken as a whole, properly conveyed all facets of the law involved that were material and relevant to the positions of the parties. Reeves v. Gulf State Utilities, 312 So.2d 118 (La.App. 1st Cir. 1975) vacated on other grounds, 320 So.2d 902 (La.1975); on remand, 327 So.2d 671 (La.App. 1st Cir. 1976); writ denied, 330 So.2d 309, 311 (La.1976).

Plaintiff also claims that the trial court erred in instructing the jury as follows:

“In determining whether the violation of the statute was a proximate cause in causing the accident, you may consider whether the accident would not have happened if the violation had not been committed. If the accident would have occurred irrespective of the violation, then the violation would not be the proximate cause in causing the accident.”

Plaintiff claims this charge confused the jury because the charge failed to state that Fudge was not to be relieved of liability even though the accident might possibly have occurred had Fudge displayed proper warning devices. This argument is similar to the previous argument made by plaintiff. While the use of the terminology “proximate cause” may not be technically correct from a legal standpoint, in the context of the entirety of the charges to the jury we find the charge was adequate. If there .was any error, it did not affect the result, and it certainly did not confuse the jury or direct the jury to absolve Fudge of liability.

The plaintiff also complains that although the court charged the jury that if the defendant violated a provision of a statute, he may be negligent, the court failed to charge the jury that the Good Samaritan defense might not be available to Mr. Fudge if the jury found that Fudge had sufficient time to display warning signals between the time he stopped and the time of the accident. As regards statute violation and the Good Samaritan defense, the trial court charged as follows:

“If you find that Mr. Fudge . . . was negligent by violation of a statute or otherwise, he may nonetheless be excused from liability for this negligence under what has been referred to as the rescue or Good Samaritan doctrine in Louisiana. And that is, one who acts in an emergency in an effort to prevent damage or injury to others and thereby causes injury or damages to himself or to others may be excused from his negligence in not making the wisest choice in his actions as a rescuer. There is a limit [,] however [,] . . . and the test to be applied is that of a reasonable man acting under similar circumstances. In other words, a reasonable rescuer. One who has acted unreasonably as a rescuer may not have the benefit of the rescue doctrine whereas one who has acted in the same manner as a reasonable man would act under the same circumstances may be accorded the benefit of the doctrine. However, whether Mr. Fudge was acting in an emergency to prevent injury or damage to others, and if so, whether he acted reasonably under the circumstances shown to have existed at this time are questions of fact entirely up to you the jury to determine.”

We find again that the trial court did not err in failing to give the charge and that the court adequately explained the law of negligence as it relates to rescuers.

Finally, the plaintiff complains about the court’s charge relative to virile shares and solidary liability. The plaintiff requested, and the court refused to give, the following charge:

“It is well settled jurisprudence of the State of Louisiana that where negligence of two or more parties combine to produce injuries to other individuals, the parties who are at fault are jointly liable in solido to the injured parties and each of the solidary obligors or debtors are liable only for each of its virile portion of the obligation.
“Accordingly, I hereby instruct you that if you find any of the defendants liable, you are to return a judgment in the full amount of any damages you find that the plaintiff has sustained as a result of the accident in question. This court will subsequently reduce your judgment according to the number of parties you find liable to the plaintiff for damages.”

Instead of giving the requested charge, the trial court charged the jury as follows:

“It is well settled jurisprudence of the State of Louisiana that where negligence of two or more parties combine to produce injuries to other individuals, the parties who are at fault are jointly liable in solido — that means altogether — and each for the whole amount to the injured parties. Accordingly, I hereby instruct you that if you find any of the defendants liable you are to return a judgment in the full amount of any damages that you find that the plaintiff has sustained as a result of this accident.”

The plaintiff contends that the charge given by the court was “very confusing and did not allow the jury to properly consider which parties would ultimately be responsible to the plaintiff in damages.” Because the jury was told at the outset of the trial that the plaintiff had settled her differences with certain parties to the litigation, the plaintiff claims the jury may have been confused by not being instructed that each party was responsible only for its virile share. We are not capable of determining whether the jury would have been more or less confused by either one of the charges. If the truth be known, the law of solidarity and of virile portions is confusing to some members of the legal profession. The court’s refusal to charge the jury as to virile shares, although such a charge may have been material and relevant to the position of the plaintiff, was not such a severe omission in the context of all the charges as to result in error.

The plaintiff also complains that the use of the terminology “proximate cause” rather than “duty risk” constitutes error because duty risk is clearly the law of this state. Duty risk has certainly become the preferred method of analysis in tort cases in the Louisiana appellate courts since Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), was decided. See Pierre v. All State Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). However, failure to distinguish these two types of analyses to a jury and failure to instruct one over the other does not constitute error when, from the totality of the charges, it is clear that the court conveyed the correct legal principles to the jury.

Even had we found that the trial court incorrectly charged the jury, such a finding would not warrant a remand but would necessitate a review of the full record before us and a decision on the merits. Suhor v. Gusse, 388 So.2d 755 (La. 1980); Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975); Guedry v. Firemen’s Fund Insurance Company, 392 So.2d 165 (La.App. 1st Cir. 1980). We have closely examined the entire record in the case at bar and find that the jury’s award is completely substantiated by the evidence and is definitely not clearly wrong. We have also reviewed the entirety of the trial court’s charges to the jury and find that the charges, in their totality, correctly stated the applicable law.

Therefore, for the above and foregoing reasons, the decision of the jury is affirmed at plaintiff’s costs.

AFFIRMED.

      . In Bond v. Commercial Union Assurance Co., et al., No. 80-C-1965 (La. 1981), the Supreme Court stated that a defendant is not obliged to answer an appeal from a judgment he does not desire to have modified, revised or reversed in part. La.C.C.P. art. 2133.

      . Mrs. Nelson received $778,000.00 from USF&G in settlement of the claims against Mouton and Affiliated Foods, and $20,000.00 from Greyhound in settlement of claims against Watkins and Greyhound.

      . § 141. Stopping, standing or parking outside business or residence districts
      A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
      B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
      C. The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence. Acts 1962, No. 310, § 1.

      . § 368. Display of warning devices when vehicle disabled
      A. Whenever any freight carrying vehicle, passenger bus, truck tractor, trailer, semi-trailer, or any motor vehicle pulling a house trailer or other vehicle, is disabled upon the traveled portion of any highway of this state, or the shoulder thereof, at any time when lighted lamps are required on vehicles, the driver of such vehicle shall display the following warning devices upon the highway during the time the vehicle is so disabled on the highway except as provided in Subsection B of this Section:
      (1) A lighted fuse, a lighted red electric lantern or a portable red emergency reflector shall be immediately placed at the traffic side of the vehicle in the direction of the nearest approaching traffic.
      (2) As soon thereafter as possible, but in any event within the burning period of the fuse (15 minutes), the driver shall place three liquid burning flares (put torches), or three lighted red electric lanterns or three portable red emergency reflectors on the traveled portion of the highway in the following order:
      (a) One, approximately 100 feet from the disabled vehicle in the center of the lane occupied by such vehicle and toward traffic approaching in that lane.
      (b) One, approximately 100 feet in the opposite direction from the disabled vehicle and in the center of the traffic lane occupied by such vehicle.
      (c) One at the traffic side of the disabled vehicle approximately 10 feet rearward or forward thereof in the direction of the nearest approaching traffic.
      B. Whenever any vehicle referred to in this Section is disabled within 500 feet of a curve, hilicrest or other obstruction to view, the warning signal in that direction shall be placed as to afford ample warning to other users of the highway, but in no case less than 100 feet nor more than 500 feet from the disabled vehicle.
      C. Whenever any vehicle of a type referred to in this Section is disabled upon any roadway of a divided highway of the state during the time that lights are required, the appropriate warning devices prescribed in Sub-sections A and E of this Section shall be placed as follows:
      (1) One at a distance of approximately 200 feet from the vehicle in the center of the lane occupied by the stopped vehicle and in the direction of traffic approaching in that lane;
      (2) One at a distance of approximately 100 feet from the vehicle in the center of the lane occupied by the vehicle and in the direction of traffic approaching in that lane;
      (3) One at the traffic side of the vehicle and approximately 10 feet from the vehicle in the direction of the nearest approaching traffic.
      D. Whenever any vehicle of a type referred to in this Section is disabled upon the traveled portion of a highway of this state or the shoulder thereof, outside of any municipality, at any time when the display of fuses, flares, red electric lanterns or portable red emergency reflectors is not required, the driver of the vehicle shall display two red flags upon the roadway in the lane of traffic occupied by the disabled vehicle, one at a distance of approximately 100 feet in advance of the vehicle, and one at a distance of approximately 100 feet to the rear of the vehicle.
      E. Whenever any motor vehicle used in the transportation of explosives, any cargo tank truck used for the transportation of any flammable liquid or compressed flammable gas, or any motor vehicle using compressed gas as a fuel, is disabled upon a highway of this state at any time or place mentioned in Sub-section A of this Section, the driver of such vehicle shall immediately display the following warning devices.
      (1) One red electric lantern or portable red emergency reflector placed on the roadway at the traffic side of the vehicle; and
      (2) Two red electric lanterns or portable red reflectors, one placed approximately 100 feet to the front and one placed approximately 100 feet to the rear of the disabled vehicle in the center of the traffic lane occupied by such vehicle.
      Flares, fuses or signals produced by flame shall not be used as warning devices for disabled vehicles of the type mentioned in this Sub-section.
      F. The flares, fuses, red electric lanterns, portable red emergency reflectors and flags to be displayed as required in this Section shall conform with the requirements of R.S. 32:367 applicable thereto. Acts 1962, No. 310, § 1.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Myrtle L. MEEKS v. STATE FARM FIRE & CASUALTY COMPANY, et al.
    No. 13996.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    H. Sanders O’Neal, Houma, for plaintiff and appellant.
    Jerry H. Schwab, Houma, for defendants and appellees.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

Plaintiff, Myrtle L. Meeks, filed this action seeking an award of workmen’s compensation benefits. Made defendants in the lawsuit are her former employers, Norman and Beulah Claverie, d/b/a Chez Lilli; Chez Lilli, Inc., the name given the firm after its subsequent incorporation; and State Farm Fire & Casualty Company, Inc., Chez Lilli’s workmen’s compensation insurer. After trial on the merits, the district court rendered judgment rejecting plaintiff’s claim and issued written reasons therefor. From this judgment of the district court, plaintiff has perfected the present appeal.

On appeal, plaintiff sets forth two specifications of error. The first specification contends that the district court committed manifest error in its consideration of the medical evidence presented at trial. In her second specification, plaintiff asserts that the district court manifestly erred in failing to consider the rebuttal evidence offered at trial. Plaintiff contends that these two errors on the part of the district court caused it to reach the wrong result.

It appears from plaintiff’s specifications of error that she desires this court to consider only certain segments of the evidence introduced at trial and, from that consideration, conclude that the district court erred in its judgment. However, the manifest error standard of review applies to workmen’s compensation cases. Hall v. Houston General Ins. Co., 377 So.2d 561 (La.App. 3d Cir. 1979), writ denied 379 So.2d 10 (La.1980); Butts v. Insurance Company of North America, 352 So.2d 745 (La.App. 3d Cir. 1977), writ denied 354 So.2d 206 (La.1978). The mandate of the Louisiana Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), is that Louisiana appellate courts must review the entire record in order to determine whether or not the lower court’s judgment is clearly wrong. We cannot limit our review of the facts only to those segments that the plaintiff would have us consider. Hence, the actual issue posed by this appeal is whether or not the district court committed manifest error in finding that the plaintiff had not sustained injury as the result of a work-related accident. A review of the entire record is necessary for a disposition of this issue.

The incident which gave rise to this suit allegedly occurred on Saturday, March 11, 1978. On that date, plaintiff was employed as a seamstress by Chez Lilli, a retail clothing outlet located in Houma, Louisiana. Plaintiff testified that, in the late afternoon — approximately 5:15 p. m. — of the day in question, a fellow employee, Lucille Pontiff, had just returned to the Main Street store from picking up merchandise in a van at another Chez Lilli store. When Ms. Pontiff reached the store, Ms. Meeks went out to help her park the van. When the van was parked, plaintiff and Ms. Pontiff unloaded the first of two boxes from the back of the van and walked toward the front door of the store carrying the box. Plaintiff further testified that, in order to enter the front door, it was necessary for her to step over a one foot high barrier for cars. According to plaintiff, she tripped while in the process of carrying the box and attempting to step over the barrier. She immediately noticed a stabbing pain in her lower back. Plaintiff testified that she told Ms. Pontiff to drop the box because plaintiff couldn’t hold it. At this point, plaintiff testified she complained to Ms. Pontiff of her injury. After about five minutes, she and Ms. Pontiff pushed the box into the store where, according to plaintiff’s testimony, she told everyone remaining in the store of her injury. She drove herself home shortly thereafter.

Plaintiff stated she telephoned Ms. Clav-erie, her employer, on the following day (a Sunday) and notified her that she had injured her back. However, she also testified that she, nevertheless, returned to work on that Monday.

Ms. Pontiff, on the other hand, testified that she did not see plaintiff trip and injure her back. Ms. Pontiff also denied that plaintiff had told her of the alleged injury. Ms. Pontiff, as well as several other witnesses, testified that deliveries to Chez Lilli were never made in the afternoon and that, specifically, on March 11, 1978, the only delivery that she and plaintiff made took place in the morning.

The other employees who testified either denied that plaintiff had mentioned her injury to them or stated that they could not recall her doing so. Additionally, Ms. Clav-erie denied that plaintiff had telephoned her the day after the accident allegedly occurred to notify her of the injury, as plaintiff had claimed.

The medical testimony established that plaintiff had been suffering from a degenerative disc condition in the upper part of her back for several years prior to the alleged accident. The first physician consulted by plaintiff was Dr. Kichard Landry of Houma, an orthopedic surgeon. He examined plaintiff three days after the accident had allegedly occurred. Dr. Landry testified that, while the accident described to him by plaintiff could have possibly aggravated her condition, he was unable to state that such was a probability. He further testified that plaintiff only complained of pain in the upper region of her back and did not mention any lower back pain.

Dr. Landry referred plaintiff to Dr. John Jackson, a neurosurgeon, for treatment. Dr. Jackson’s testimony indicated that he treated plaintiff only for her upper back condition. He did state that the x-rays which he took indicated that plaintiff had a bulging disc in her lower back also. However, plaintiff apparently never complained of pain in her lower back to Dr. Jackson. It was his opinion that it was equally possible that the pain in plaintiff’s back was the result of the natural cause of her degenerative condition as that it was due to recent trauma.

The other physician to testify was Dr. Herman Walker, a general practitioner, who has last treated plaintiff approximately four years prior to the alleged accident. Dr. Walker, deposed for trial purposes by defendants, confirmed the fact that plaintiff’s disc condition had existed for some time.

As rebuttal to the defendants’ case, plaintiff and Kay Granger, an acquaintance of plaintiff, testified that they had recently observed some deliveries to Chez Lilli taking place in the afternoon. In support of this testimony, plaintiff offered some photographs taken of these alleged deliveries. The probative value of this testimony is very limited at best. The incidents occurred more than two years after the accident allegedly happened. Moreover, plaintiff and Ms. Granger were not in a position to know exactly what was being brought into the store.

The district court’s written reasons indicate that its judgment was based upon a finding that the plaintiff had not proven, by a preponderance of the evidence, the occurrence of a work-related accident, a pre-requisite for recovery in a workmen’s compensation case. LSA—R.S. 23:1031; Wright v. Red Ball Motor Freight, Inc., 315 So.2d 344 (La.App. 1st Cir. 1975).

LSA-R.S. 23:1021 defines “accident” for purposes of Louisiana’s workmen’s compensation law as:

“[A]n unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.”

The evidence in this case was conflicting on the issue of whether or not a work-related accident had occurred. The district judge resolved this conflict in favor of defendants. Our review of the entire record convinces us that the district court was not clearly wrong in finding that plaintiff failed to prove, by a preponderance of the evidence, the occurrence of a work-related accident. Accordingly, we find no manifest error in the district court’s judgment. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, supra; Hall v. Houston General Ins. Co., supra.

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are to be borne by plaintiff-appellant, Myrtle L. Meeks.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Richard R. BRASSEAUX v. STAND-BY CORPORATION d/b/a Plantation Inn and Home Indemnity Company.
    No. 14126.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.

      Chris J. Roy, Gravel, -Roy & Burnes, Alexandria, for plaintiff.
    Rudolph R. Schoemann and James C. Cockfield, New Orleans, for defendants.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This suit for damages is before us on appeal for the second time following a remand to the trial court for the taking of a doctor’s deposition and the reevaluation of the award of quantum after reviewing the deposition. See Brasseaux v. Stand-By Corp., 371 So.2d 1174 (La.App. 1st Cir. 1979). The trial court after remand maintained its original judgment in favor of plaintiff, Richard R. Brasseaux, and against Stand-By Corporation d/b/a Plantation Inn and its insurer, Home Indemnity Company, in the total sum of $48,327.00.

Plaintiff, while taking a shower at the Plantation Inn, was attacked by a number of bees which caused him to slip, injuring his left wrist. The trial court in a two day trial found the defendants negligent in failing to remove the bees from the premises and in failing to warn the patrons of the bees’ presence. The trial was partially tried on December 6, 1977 and completed on April 4, 1978.

After judgment Brasseaux applied for a new trial contending a report of Dr. Dan Riordan, given to him on the second day of trial, should have been given to him earlier to enable him to secure the testimony of the doctor at trial. Dr. Riordan had examined the plaintiff in January of 1978 at the request of the defendants. The trial court denied the motion and the plaintiff perfected a devolutive appeal to this court. In our previous opinion, we held the trial court erred by failing to grant plaintiff a partial new trial for the purpose of obtaining the deposition of Dr. Riordan. We found the action of the defendants in failing to timely supply a copy of the report to plaintiff was improper. We pretermitted our discussion as to liability.

Subsequently, plaintiff was reexamined by the doctor and his deposition was taken. The defendants objected at the deposition to any inquiries concerning the second visit. The trial court sustained defendants’ objection and limited the deposition to the first examination. After reviewing the deposition the trial court found it did not add to the weight of the prior testimony and let stand its previous award.

Plaintiff has again devolutively appealed the judgment of the trial court. In his assignments of error, he alleges the trial court erred in not considering the entire deposition of Dr. Riordan and erred in its awards for loss of past wages, loss of future wages, pain and suffering. Defendants answered the appeal seeking reversal of the trial court’s finding of liability and, in the alternative, a reduction of quantum.

Plaintiff had been employed by Gianfala & Sons as a roustabout engaged in oilfield work since December of 1975. On June 3, 1976, he was working in the Morgan City area with a pusher and three other roustabouts. The crew had finished their day’s work and proceeded to register at the Plantation Inn near Morgan City.

Plaintiff and a co-employee were assigned Room 253, a second floor room at the corner of the motel. Brasseaux stated that once in the room, he proceeded to take a shower. Upon closing his shower curtain and turning on the cold water, a number of bees came from the direction of the shower head stinging him. Trying to ward off the bees, he slipped in the tub injuring his left wrist. Brasseaux, along with his roommate, Terry Burleigh, went to the front desk to complain about the incident. Michael Hebert, innkeeper of the motel, instructed Brasseaux to go to the hospital in Morgan City where his wrist was X-rayed and a splint was applied.

The plaintiff went home to Church Point that night and was treated by two orthopedic specialists in the Opelousas area. He testified he was never warned of the bees by the clerk who registered them and had no idea how the bees entered the room.

The defendants contend they were free of any negligence since the bees were a part of “Mother Nature” and they had no control over them. They knew of the existence of the bees on the outside of the building but had received no report of bees inside any of the rooms. The bees, they argue, come from the surrounding fields every spring.

Mr. Hebert, after being informed by his exterminating company that it could not remove the bees, contacted a beekeeper on June 2, 1976 to have the bees removed. Although there was some conflict as to when these men were contacted, the beehive was removed on June 5, 1976, from the eve of the building.

Marie Fromenthal, the clerk on duty at the time Brasseaux and Burleigh registered, stated after checking them into the room she received a call complaining of bees in the room. She told the caller to come down and she would assign them a new room. She did not know who called and no one admitted at trial making the call.

Hebert testified that after he was informed of the incident he went with the men back to the room and only saw one dead bee near the lavatory. The defendants also emphasized the testimony of Bur-leigh, who was rooming with Brasseaux. Burleigh testified that upon entering the bathroom, Brasseaux stated he had fallen and injured his wrist. Burleigh did see some dead bees on the floor and a live one Brasseaux was defending himself from with his towel.

As a result of the fall, Brasseaux, who is right-handed, sustained a navicular fracture of his left wrist. The wrist had a preexisting fracture to the navicular bone and the two orthopedic surgeons found the bone very degenerative and recommended removal. Surgery was performed in which they inserted a prothesis in place of the bone and also inserted pins to keep it in place. A second surgery was required for the removal of the pins.

Plaintiff testified he is unable to return to the heavy manual labor required of him as a roustabout. He has tried other jobs but the pain and swelling in the wrist is unbearable. Gianfala & Sons, plaintiff’s employer, has advanced him $160 a week since the injury. The employer and plaintiff contend the advance is a loan which the employer expects to be repaid. Brasseaux did testify he has worked for them after the accident on a number of occasions but was never paid for his services. On the first day of trial representatives of the company testified the loan was only an oral agreement between the parties. On the second day plaintiff introduced a promissory note in the amount of $18,327 which represents money the employer had loaned him from the date of his injury. Said sum represents the $160 weekly payment plus an additional amount to pay for plaintiff’s insurance premiums. An assignment was also introduced assigning to Gianfala & Sons a right in any recovery plaintiff might receive in this litigation.

We will first consider the question of liability since we pretermitted that issue in the first appeal. The trial court found that the accident occurred as contended by the plaintiff. We find there is a causal relationship between the bees attacking and stinging the plaintiff and his slipping and falling in the shower injuring his left wrist.

We next consider the duty owed by the motel’s personnel toward this plaintiff-guest. The duty owed by an innkeeper to his guests or patrons is that of exercising reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition and the warning of guests or patrons of any hidden or concealed perils which are known or reasonably discoverable by the innkeeper. Brown v. Southern Ventures Corporation, 331 So.2d 207 (La.App. 3rd Cir. 1976), writ refused 344 So.2d 211 (La.1976) and Jarvis v. Prout, 247 So.2d 244 (La.App. 4th Cir. 1971).

The trial court found that the defendants breached this duty in failing to remove the bees and in failing to warn the plaintiff that there were bees about the premises. We agree with this finding. The bees were known to be on the outside of the building for a sufficient amount of time that the defendants could have had them removed. In addition, the defendants should have warned occupants of the rooms in the immediate vicinity of the existence of bees in the area and the possibility of the bees entering the rooms. We find the risk involved in this case, plaintiff slipping in a shower from warding off bees, would be encompassed within the duty to keep the premises reasonably safe and warning him of this hidden peril.

Defendants argue that they had no control over the bees and that they were not the insurer of safety of their guests under the theory of strict liability. Because we hold defendants are liable under the negligence theory we need not address the theory of strict liability. With reference to not having control over “Mother Nature’s” insects, we agree with defendants but that does not relieve them of the duty to inspect their premises and rid it of any perils that might confront their patrons or guests. In this case the defendants, knowing of the presence of the beehive, should have had the hive removed or at least warned their patrons of its presence. Additionally, we find no merit in defendants’ contention that plaintiff was contributorily negligent or that he assumed the risk.

We next consider the extent of damages occasioned to this plaintiff. The trial court awarded plaintiff, a thirty-one year old worker with a seventh grade education, $18,327 for loss of past wages and $30,000 for loss of future wages, pain and suffering and medical expenses.

Although not enumerated by the trial court, there were four items of damages in its judgment. Each item should be specifically listed since the proof and recovery of each item is distinctively different from the others. See Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir. 1974).

The first item to be discussed is plaintiff’s claim for loss of past wages. The trial court awarded Mr. Brasseaux $18,327 for this item being the amount his employer gave him from the time of his injury through the trial. Plaintiff is seeking an increase to $22,448 which amount represents a salary of $4 an hour for 40 hours and $6 an hour for 14 overtime hours per week from the time of injury to trial.

Defendants argue Brasseaux did not lose any wages since there was a stipulation that his employer paid him in lieu of compensation and, alternatively, if wages are awarded, it should be net wages and not gross wages.

On the first day of trial, while the plaintiff was being cross-examined in regards to the $160 a week being advanced to him, plaintiff’s counsel made the following stipulation:

“Your Honor, we’ll stipulate that — that in lieu of compensation these people started paying him $160.00 every week in lieu of comp.”

The court accepted the stipulation and it is binding on all parties. Campbell v. Prejean, 392 So.2d 747 (La.App. 3rd Cir. 1980). The trial court in its written reasons con-eluded the weekly payments were wages in lieu of compensation. This holding along with the fact that the employer has not intervened in this suit seeking reimbursement are two crucial factors in deciding whether the plaintiff is entitled to recover past lost wages.

Because the payments were in lieu of compensation they cannot be classified as “purely gratuitous”, which would justify a conclusion that plaintiff did not suffer a loss of wages. Jasper v. Garcia, 280 So.2d 389 (La.App. 4th Cir. 1973).

Normally, when an employer or his insurer has paid workmen’s compensation to an injured employee and the employee files suit against a third party tortfeasor, the employer or the insurer intervenes in the suit seeking to recoup the compensation it has paid to the injured employee. La.R.S. 23:1101—1103. The employer has not intervened in this suit and defendants contend, if plaintiff is allowed to recover from them, he would have double recovery. We find no merit in this contention.

Professor Malone and Johnson explain this type of situation in their workmen’s compensation treatise, as follows:

“ * * * (T)he third person is not entitled to a credit against the amount of damages awarded in the employee’s suit for the amount of compensation paid the employee which would have been claimed by the employer or insurer if there had been an intervention. This is merely a recognition of the well established rule in tort law that where an injured party proceeds against the wrongdoer for damages, he is entitled to an award for the full amount of his loss, even though the loss is partially or wholly made good by an insurer. Such a result does not amount in truth to ‘double recovery’ or at least it is not one that is to be regarded as offensive. The primary objection to ‘double recovery’ is that it makes a wrongdoer pay twice for the same item, and thus he pays more than would be proper. But in this situation, the wrongdoer pays only what he would have been obliged to pay had the Act never existed: a complete tort recovery. He pays no more because the employer or the insurer fails to intervene, and thus there is ‘double recovery’ only in the sense that the employee might retain some additional amounts because the employer or insurer failed to exercise the rights granted to it under the Act.” (Footnotes omitted). 14 La.Civ.L.Tre. (Malone & Johnson) § 369, pgs. 181-182. Also see Bennett v. U. S. Fid. & Guar. Co., 373 So.2d 1362 (La.App. 1st Cir. 1979) and Nunez v. Modern Woodcraft Co., 197 So.2d 339 (La.App. 4th Cir. 1967).

Following this rationale, we find the trial court’s award to the plaintiff for loss of wages is correct, but we must modify the amount. At the time of the injury plaintiff was earning $3.00 an hour for 40 hours and $4.50 an hour for 14 overtime hours per week. From the date of the injury until trial, a period of approximately 92 weeks, plaintiff worked 27 days or 5% weeks. Calculating the gross weekly wages at $183.00 times the number of weeks (86%), plaintiff suffered a loss of $15,847.80 in past wages. Moran v. Canal Indem. Ins. Co., 387 So.2d 1243 (La.App. 1st Cir. 1980). The amount advanced by the employer or the amount of the assignment cannot be used as the basis for determining the amount of lost wages. We accordingly reduce the trial court’s award for loss of past wages.

The next item to be discussed is the medical expenses incurred by the plaintiff because of the injury. At trial plaintiff identified certain documents as bills received by him in conjunction with his injuries. Defendants objected to the introduction of these documents at that time. On appeal defendants contend a proper predicate had not been laid for the introduction of these documents or plaintiff’s testimony concerning them.

The medical expenses which are claimed by the plaintiff through the introduction of the bills are as follows:

Defendants contend all these medical expenses were improperly introduced except P-4 and P-5 which were certified as true copies by the administrator of the St. Landry Clinic in accordance with the provisions of La.R.S. 13:3714. Defendants cite the case of Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir. 1980) for the proposition that the other bills were hearsay evidence and not competent evidence. In Jones, supra, at page 1313, the court was faced with proof of medical expenses in a default judgment and concluded:

« * * * find the trial judge erred in admitting the hospital bill for the purpose of proving the amount of the hospital charges. The hospital bill is hearsay. The medical expenses were not proved by competent evidence and cannot be allowed. * * * ” (See also Cloney v. Travelers Insurance Company, 253 So.2d 83 (La.App. 1st Cir. 1971) and Vidrine v. Sentry Indem. Co., 341 So.2d 558 (La.App. 3rd Cir. 1976). Compare Smith v. Early Am. Ins. Co. of Montgomery, Ala., 344 So.2d 397 (La.App. 1st Cir. 1977).

The remaining bills are hearsay and inadmissible to prove the amount of the charges since timely objection was made by the defendants. Defendants concede, however, the charges represented by P-4 and P-5. We thus award plaintiff the sums of those two bills.

In addition, P-6 was testified to by Dr. Mayers in his deposition on page 23 as his bill for services rendered to Mr. Brasseaux because of his injuries. We therefore find competent evidence for this item of damage and allow its recovery. The remaining bills were not testified to by anyone except the plaintiff and therefore must be excluded as not being proved by competent evidence.

As to the claim for loss of future wages or loss of earning capacity, our Supreme Court in the case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) held:

“But the full indemnification to which an injured party is entitled under Article 2315 (Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971)) includes damages for decreased earning capacity which is determined by deducting plaintiff’s earning ability after the injury from his earning ability immediately pri- or to the injury rather than by deducting his income after the injury from his income prior to the injury. * * * ”

Further, the Supreme Court in Robinson v. Graves, 343 So.2d 147 (La.1977) stated:

“Future loss of earnings cannot be calculated with absolute certainty; this court has recognized that damages for the loss of future earnings are somewhat speculative in character. See e. g., Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968). Absent an abuse of discretion by the trier of fact, however, this degree of uncertainty does not permit the reviewing court to substitute its judgment for that of the trial court merely because the reviewing court believes that a different award would have been more appropriate. * * * ” See Philippe v. Browning Arms Co., 395 So.2d 310 (La.1980).

The amount remaining after deducting the medical expenses is the sum of $26,485.95 for both loss of earning capacity and pain and suffering. Considering the speculative nature of loss of earning capacity or loss of future wages, the great discretion given the trial judge in fixing the amount of the award for pain and suffering, the injury suffered by plaintiff and the entire record which we have completely reviewed, we find the trial judge did not abuse his much discretion in awarding $26,-485.95 for these two items of damages. Reck v. Stevens, 373 So.2d 498 (La.1979).

Plaintiff contends the entire report and the entire deposition of Dr. Riordan should have been considered by the trial court and the awards for general damages should be increased based upon those documents. The trial court in supplemental reasons for judgment reinstated its initial award of $30,000 finding that the deposition did not materially add to the testimony already considered. We agree with this assessment and find no merit in this argument.

For the reasons assigned, the judgment of the trial court is amended to reduce the award for loss of past wages to the sum of $15,847.80 and affirmed in all other respects.

Costs of this appeal are assessed one-half to plaintiff and one-half to defendants.

AMENDED AND AFFIRMED.


author: LEAR, Judge.

text:
    Joseph DUPRE v. HIGHLANDS INSURANCE COMPANY, Otis Engineering Corporation and Frank Zepponi.
    No. 14136.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Philip E. Henderson, Houma, for plaintiff and appellant.
    Lawrence J. Ernst, New Orleans, for defendant and appellee Highlands Ins. Co.
    Philip J. McMahon, Houma, for defendant and appellee Frank Zepponi and Billy G. McCoy.
    Maurice P. Mathieu, Houma, for defendant and appellee Otis Engineering Corp.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

The plaintiff, Joseph Dupre, an employee of Patterson and Edmondson Construction Company (Patterson), was injured on August 23, 1974, while in the course and scope of his employment in the yard of Otis Engineering Corporation (Otis) in Houma, Louisiana. Plaintiff filed this tort suit for damages arising out of the accident against Otis, its insurer, Highlands Insurance Company (Highlands), and three individuals, Frank Zepponi (Zepponi), Billy G. McCoy (McCoy), and Wilford Sedatol (Sedatol) as executive officers of Otis. Thereafter, Highlands intervened, as the workmen’s compensation insurer of Otis, in order to recover the compensation paid to plaintiff, in the event plaintiff recovered in his tort suit. Also, because Otis had previously been judicially determined to be plaintiff’s statutory employer, Otis, and Highlands in its capacity as Otis’ workmen’s compensation insurer, were dismissed as defendants. However, Highlands remained a defendant as the insurer of the three individual defendants sued as executive officers.

The trial court found that Zepponi was not an executive officer of Otis, but that McCoy and Sedatol were executive officers of Otis and further that “none of Frank Zepponi, Billy G. McCoy and Wilford Seda-tol or any other employee [of Otis Engineering Corporation] breached any duty of care owed to the plaintiff in this event; and none of them were negligent nor did they cause the accident and injury to plaintiff . . . , ” The trial court further found that “the accident was not caused by any defect in the equipment or failure of that equipment nor was it occasioned by a method of use of such equipment which the defendants required” and that “the accident and personal injuries suffered by plaintiff were directly and solely caused by the gross negligence of the plaintiff, Joseph Dupre.” Plaintiff’s suit and the intervention of Highlands were both dismissed, and plaintiff has appealed. We affirm.

Patterson, plaintiff’s actual employer, furnished labor crews for various oil field service work. On August 19, 1974, Patterson supplied a five-man work crew, consisting of a foreman and four laborers, to Otis in order to assist Otis in coiling and uncoiling pipe. The next day, August 20, 1974, plaintiff replaced the original foreman of the Patterson crew and began working, as foreman, along with the four original Patterson employees.

The coiling operation was performed by the Patterson crew and Otis employees, including Frank Zepponi, who supervised the coiling operation. This operation consisted of transferring coiled pipe from a number of smaller supply reels to one large storage reel, and was accomplished by the use of a hydraulic motor which turned the storage reel thereby uncoiling the pipe from the supply reel and coiling it onto the larger storage reel. During this phase of the operation the workers, including the man operating the hydraulic motor, were all stationed some distance from the reels. On a number of occasions, it would become necessary for a certain length of the coiled pipe to be pulled back off and unspooled from the large storage reel, and this unspooling operation was accomplished manually by one or more men pulling at the pipe itself and a number of the other workers pulling down on one end of the reel and others pushing up in order to turn the large storage reel and thereby unspool the pipe. During this “unspooling” phase of the operation plaintiff was injured when his foot, which he had placed on one of the spokes of the large storage reel, was caught between a revolving spoke and a stationary part of the structure supporting the storage reel.

At the time of the accident, an injured employee had a cause of action in tort against the executive officers of his corporate employer, his cause of action being based on a breach by those officers of a duty owed by them directly to the employee. Chabina v. Travelers Insurance Co., 251 So.2d 414 (La.App. 1st Cir., 1971), writ denied, 259 La. 902, 253 So.2d 223 (La.1971); Adams v. Fidelity and Casualty Company of New York, 107 So.2d 496 (La.App. 1st Cir., 1958), cert. den. February 16, 1959; Berry v. Aetna Casualty & Surety Company, 240 So.2d 243 (La.App. 2nd Cir., 1970), writ refused, 256 La. 914, 240 So.2d 374 (1970); U.S. cert. denied, 401 U.S. 1005, 91 S.Ct. 1255, 28 L.Ed.2d 541. As we stated in Chabina, supra, “... such [executive] officers owe to the employees the duty of providing a reasonably safe place to work, and this duty would preclude the prescribing of unsafe working procedures.”

Zepponi, who supervised plaintiff and the other workers, testified that he demonstrated to the Patterson crew the proper method and procedure for unspooling the coiled pipe from the large storage reel, instructing them to place only their hands on the large outside rim of the storage reel. He further testified that he told the Patterson crew to otherwise keep their hands and feet off the large reel. Zepponi further stated that he placed his hands on the large reel only in accordance with the method demonstrated to the Patterson crew and that, to his knowledge, the other workers placed their hands in the same position as he had demonstrated. And, from the beginning of the operation until plaintiff’s accident, he never saw plaintiff or any of the other workers place their hands or feet on the spokes of the large storage reel. Zepponi’s testimony was undisputed.

The trial court found that, at the time of the accident, plaintiff and the other workers had been working on this coiling operation for three and one-half days, following the “unspooling” procedure outlined by Zep-poni, all without incident or injury to plaintiff or any of the other workers. The trial court further found that, unknown to Zep-poni or any of the other defendants and without being instructed to do so, plaintiff, immediately prior to the accident, placed his hands and at least one foot on the inside spokes of the large storage reel.

The trial court concluded and the record is clear as to this, that plaintiff was injured when he attempted a maneuver which he had substituted for the method and procedure provided by the defendants. The trial court further concluded that plaintiff’s voluntary and independent deviation from his instructions, in placing his foot on an inside spoke of the storage reel, was the direct and sole cause of the accident and the resulting injury to plaintiff’s foot. After reviewing this entire record, we find that these conclusions of the trial court are correct.

Plaintiff argues that the unspooling could have been accomplished by the use of hydraulic, rather than manual, power, thereby keeping the workers away from the reels when pipe was being unspooled, and that defendants were negligent in failing to utilize this safer procedure. We do not agree.

As we further stated in Chabina, supra: “Employers are not required to furnish the safest possible place to work, but one which is reasonably safe. They cannot be required to anticipate or forestall the possible negligence of their employees in carrying out their instructions.”

In this case, as in Chabina, supra, we believe that a reasonably safe place to work was furnished to plaintiff, and that defendants breached no duty owed to plaintiff in this regard.

Based on the above, the judgment of the trial court is hereby affirmed, and all costs, both in the trial court and of this appeal, are to be paid by plaintiff/appellant.

AFFIRMED.

      . Although originally made a defendant, Wilford Sedatol was never served, and was not before the court as a defendant.


author: ELLIS, Judge:

text:
    Patricia A. DILLON (Formerly Medellin) In the Interest of the Minor Child, Margarita Lourdes Medellin v. Hector MEDELLIN.
    No. 14201
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Writ Granted Sept. 28, 1981.

      F. Smith Knobloch of Knobloch & Knob-loch, Thibodaux, for plaintiff-appellant Patricia A. Dillon.
    Harry R. Cabral, Jr. of Cabral & Cabral, Metairie, for defendant-appellee Hector Medellin.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

Plaintiff Patricia A. Dillon was divorced from defendant Hector Medellin in Harris County, Texas, by judgment dated May 26, 1977. In that judgment, plaintiff was granted custody of 'their minor child, Margarita Lourdes Medellin, with visitation rights to defendant.

According to the allegations of the petition, Margarita has resided in Louisiana for more than one year. On July 8,1980, while Margarita was visiting the defendant in Harris County, defendant obtained an ex parte emergency order, granting temporary custody to him. The petition further alleges the lack of jurisdiction of the Harris County Court, and prays that defendant be ordered to appear in court with the minor child, and to show cause why the minor child should not be returned to plaintiff, and why his visitation rights should not be terminated.

To the petition, defendant filed a declina-tory exception of lack of jurisdiction over the subject matter. It is alleged that, under the Uniform Child Custody Jurisdiction Law, R.S. 13:1700 et seq., the Harris County Court had both continuing and original jurisdiction over the status of the minor child; had acted to modify its own original decree; and that the Louisiana courts are without jurisdiction to enforce the original custody decree issued by the Harris County Court.

After a hearing on the exception, at which no evidence was offered, the exception was sustained, and judgment was signed dismissing the suit. Plaintiff has appealed.

La.R.S. 13:1702 A provides as follows:

“A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
“(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
“(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
“(4) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.”

La.R.S. 13:1705 A provides as follows:

“A court of this state shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Part, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.”

Texas Family Code, Section 11.045 provides:

“(a) A court has original jurisdiction of a suit affecting the parent-child relationship, whether or not the child is physically present in the state, only if one of the following conditions is met:
“(1) this state:
“(A) is the principal residence of the child at the time the proceeding is commenced; or
“(B) was the principal residence of the child at any time during the six-month period before the proceeding was commenced, and a parent or person acting as a parent resides in this state at the time the proceeding is commenced; or
“(2) it is in the best interest of the child that a court of this state assume jurisdiction because:
“(A) the child and the child’s parents or the child and at least one contestant have a significant connection with this state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
“(B) the child is physically present in this state and there is a serious immediate question concerning the welfare of the child; or
“(C) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with this section, or another state had declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine issues concerning the child.
“(b) The physical presence in this state of the child or of the child and one of the contestants is alone insufficient to confer jurisdiction to the court to make a determination under this subtitle.”

Texas Family Code, Section 11.052 provides:

“(a) Except on the written agreement of all the parties, a court may not exercise its continuing jurisdiction to modify:
“(1) the appointment of a managing conservator if the managing conservator and the child have established and continued to maintain their principal residence in another state for more than six months unless the action was filed and pending before the six-month period; or
“(2) any part of a decree if all of the parties and the child have established and continue to maintain their principal residence outside this state.
“(b) This section does not affect the power of the court to enforce and enter a judgment on its decree.

From the foregoing, it can be seen that Louisiana would have jurisdiction over the status of the child, who has lived in the state for over a year, under R.S. 13:1702 A(l). It would further appear that Texas has lost its continuing jurisdiction to modify its original custody decree, under Section 11.052 of the Texas Family Code.

However, under Section 11.045 (a)(2)(B) Texas can exercise original jurisdiction if a child is “physically present in this state and there is a serious immediate question concerning the welfare of the child; . . . ”.

The allegations of the petition are as follows:

“4.
“On July 8, 1980, during visitation with the minor child, defendant filed a petition to modify petitioner’s custody in the matter captioned: “In the interest of MARGARITA LOURDES MEDELLIN” bearing No. 1,116,557-D on the docket of the 311th Judicial District Court, Harris County, State of Texas, alleging that the child’s environment in Lafourche Parish could “endanger her physical health or significantly impair her emotional development” and filed an affidavit containing gross defamations against the child’s stepfather.
“5.
“As a result of such petition and affidavit an emergency Order appointing HECTOR MEDELLIN as temporary managing conservator of the minor child was signed on July 8, 1980. Such Order has been used by Defendant to prevent the return of the child to petitioner.”

The representations made to the Texas court by Dr. Medellin appear to satisfy the requirements of Section 11.045 (a)(2)(B), supra, and the Texas court could exercise original jurisdiction under the circumstances. We note that, although Texas is not a signatory state to the Uniform Child Custody Jurisdiction Law, R.S. 13:1700 et seq., the jurisdictional provisions of its Family Code, cited above, are substantially in accordance with those of the Uniform Law.

We therefore hold that, under the provisions of R.S. 13:1705, supra, the courts of this state are precluded from exercising the jurisdiction conferred by R.S. 13:1702, because there is presently pending in the Texas court, under its original jurisdiction, a proceeding concerning the custody of Margarita.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    Nancy J. LEE v. Jim SHAW, d/b/a Scenic Auto Sales.
    No. 14215.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant.
    Johnnie Matthews, Baton Rouge, for defendant.
    Jay 0. Brown, Baton Rouge, for defendant-appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action to rescind a sale of a used car for redhibition. The trial court granted reduction of the purchase price. We amend to rescind the sale, and affirm.

Bernadin Lee Walls, accompanied by her sister, Nancy J. Lee, and boyfriend stopped at Scenic Sales, owned by defendant Jim Shaw, to buy a car. Bernadin Lee Walls explains she was looking for a “good used car” and saw several cars. Bernadin Walls was favorably impressed with a 1970 Dodge Monaco, because it sold for less than $1,000. Her boyfriend test-drove the car and found it to be in good condition. Bernadin Walls agreed to buy the car for $450, of which she would pay $300 in cash. She gave them $290, and upon being told she could not buy the car because she was a minor, she got her sister, Nancy J. Lee, to sign the bill of sale. The used car salesman also got the sister to sign a document indicating that the car was sold without warranty “As Is”. Bernadin Walls returned to the used car lot and paid the additional $10.

Bernadin Walls brought the car to her mother. Her mother drove the car the next day and discovered the car would not start, and that when the car was started, the transmission failed to shift. Also, the door on the driver’s side would not operate from the outside and one windshield wiper would not work. The mother, according to her testimony which appears highly credible, immediately brought the car back to the used car sales lot and demanded her daughter’s money back. The salesman refused. The car was left at the lot and remained there until date of trial, about a year later.

The trial court refused to rescind the sale and granted reduction of the purchase price by the sum of the $150 not paid in the down payment.

The first problem confronting this court is procedural. The suit was originally brought by Nancy J. Lee, the sister who signed the bill of sale. The original trial judge after partial trial (a different judge finally tried the case in full) instructed counsel for plaintiff to amend the petition to name the tutrix of Bernadin Lee Walls, Cora Lee, as plaintiff. The petition was so amended, and the matter was then retried, as indicated, before a different trial judge, as though ab initio. We find the petition as originally filed was proper, and required no amendment, as the bill of sale indicated Nancy J. Lee was vendee. Nevertheless, this court has held that substantial justice is to be done in matters touching upon substitution of parties plaintiff. Nettles v. Great American Insurance Co., 155 So.2d 87 (La.App. 1st Cir. 1963), cert. denied 244 La. 1024, 156 So.2d 227 (1963). As plaintiffs, original and substituted, were represented by the same counsel, we believe justice may easily be done by deciding the case on the basis of the record made before and after substitution of plaintiff now before us.

The transmission on the car did not shift. Thus, the car was virtually inoperable. The trial court merely reduced the purchase price. We find the sale was subject to rescission, and the purchase price returnable as the defect rendered the car useless, or at least, so inconvenient and imperfect it would not have been purchased had the buyer known of the defect. LSA-C.C. art. 2520. The vice, the defective transmission, became apparent within three days of the sale, and, thus, the burden of proof was on defendant to prove the defect did not exist at the time of sale. LSA-C.C. art. 2530; Hellman v. Comeaux, 353 So.2d 407 (La.App. 4th Cir. 1977). Defendant failed to discharge that burden.

It is quite true that the instrument executed ancillary to the bill of sale indicated the car was sold “As Is.” However, if a defect occasions more than minor repairs, the buyer is not deprived of the fundamental warranty existing under the Civil Code. The following language in Hellman v. Comeaux, supra, is pertinent:

“Finally, defendants contend that they are insulated from liability because the bill of sale contained ‘Sold as is.’ Considering that the vice in the engine was far more than the kind of minor repairs one might expect in buying a used car but in fact rendered the automobile inoperable, this inclusion of words ‘Sold as is’ does not deprive plaintiff of the fundamental warranty provided by the Civil Code. Nationwide Finance Co. of Gentilly, Inc. v. Jones, 279 So.2d 221 (La.App. 4th Cir. 1973); Juneau v. Bob McKinnon Chevrolet Company, 260 So.2d 919 (La.App. 4th Cir. 1972); McLain v. Cuccia, 259 So.2d 337 (La.App. 4th Cir. 1972).”
(353 So.2d 407, 409)

Plaintiff seeks attorney’s fees. However, attorney’s fees may be awarded only if the seller knew of the defect at the time of sale. LSA-C.C. art. 2545. A manufacturer is presumed to know of the defect. Rey v. Cuccia, 298 So.2d 840 (La.1974). However, it appears from Rey that the knowledge of a seller must be proved or inferred from the facts. Plaintiff has introduced no evidence to prove or suggest defendant knew of the vices in the car. Hence, we deny attorney’s fees.

We declare the sale of the 1970 Dodge Monaco rescinded, and order restitution of the down payment to plaintiff, all costs to be paid by defendant.

AMENDED AND AFFIRMED.


text:
    James E. FOGGAN v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 14217.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      David K. Balfour, Baton Rouge, for defendant and appellant.
    Joel B. Dickinson, Baton Rouge, for plaintiff and appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiff, James E. Foggan, filed this civil action seeking damages for injuries to his person and property allegedly caused by a motorcycle accident which he claims occurred because of the negligence of defendant, the Louisiana Department of Transportation and Development, in failing to properly maintain a segment of Louisiana Highway 429 near Gonzales, Louisiana. After trial on the merits, the district court rendered judgment in favor of plaintiff. Defendant appealed.

Plaintiff testified that, on the day of the accident, he had been to a ball game and was returning home on an unfamiliar route. He rounded a curve, spotted an approaching car, and immediately was confronted with a large hole in the road. He stated that he was unable to avoid hitting the hole, which was centered in the middle of his lane. The hole was described as being some ten to eleven inches deep by some three feet by three feet in perimeter. He was thrown from his motorcycle.

Plaintiff was asked to identify the highway on which the accident happened. He identified it both as “Cornerview” (a local name) and as State Highway 429. He stated that his wife had ascertained the number of the highway and told it to him. This testimony was admitted without objection.

Plaintiff’s wife testified that she- took pictures of the accident scene and asked people in the community the number of the highway. There was no objection to her testimony or to her or plaintiff’s identification of the photographs as being of Highway 429. Defendant did not present any evidence whatsoever to contradict this testimony.

Defendant argues that plaintiff did not establish that the accident did, in fact, occur on a state highway, a thing in the custody of defendant. In reviewing the testimony of this matter, we find that the plaintiff and his wife, on being questioned as to the location of the accident, both indicated that it was Louisiana Highway 429. Plaintiff’s wife plainly stated that she ascertained the location’s identity by questioning persons in the community, that she took the photographs which she and her husband identified as the place of the accident, and that she informed her husband of the number of the highway, 429.

Defendant, on cross-examination, made much of the fact that plaintiff’s wife told him the number of the highway and that the wife had learned the name and number by asking questions of others. However, it is noted that no objections were made to the identification testimony nor was any offer made of evidence to the contrary.

Uncontradicted, hearsay testimony of a witness, admitted without objection, may properly be considered and given probative value. Coleman v. Victor, 326 So.2d 344 (La. 1976); Wainer v. Wainer, 210 La. 324, 26 So.2d 829 (1946); Gray v. Great American Indemnity Company, 121 So.2d 381 (La.App.1st Cir., 1960). Also, Louisiana Revised Statute 48:191 designates Louisiana 429 as a state highway. Therefore, clearly, the thing in question was in the care or custody of defendant.

Defendant further contends that the district court erred in failing to require proof of a cause in fact relationship between the injury sustained and a negligent act or omission on its part and in failing to find that plaintiff was contributorily negligent.

Defendant discusses these issues as governed by a theory of negligence. However, the delictual responsibility of defendant in the instant case is based, not upon negligence, but upon legal fault. La.Civ.Code art. 2317; Jones v. City of Baton Rouge, 388 So.2d 737 (La. 1980); Derouen v. Department of Transportation and Development, Office of Highways, 392 So.2d 765 (La.App. 3rd Cir., 1980); Scott v. State Department of Transportation and Development, 392 So.2d 482, 483 (La.App. 1st Cir., 1980); LeGrand v. State Department of Highways, 390 So.2d 957 (La.App. 2nd Cir., 1980).

Neither knowledge of the defect nor any particular act or omission by defendant are prerequisites to a finding of liability. Jones v. City of Baton Rouge, supra, LeGrand v. State, supra. Plaintiff need only prove that (1) the thing which caused his injury was within defendant’s care and custody; (2) the thing had a vice or defect, i. e. that it occasioned an unreasonable risk of injury; and (3) his injury was caused by the defect. Jones v. City of Baton Rouge, supra; Loescher v. Parr, 324 So.2d 441 (La.1975); LeGrand v. State, supra. Once these elements are established, defendant can escape liability only by showing that plaintiff’s injury was caused by plaintiff’s own fault, by the fault of a third party, or by an irresistible force. Jones v. City of Baton Rouge, supra; Loescher v. Parr, supra; LeGrand v. State, supra.

As previously stated, the record reveals that the highway on which the accident occurred was within the care and custody of defendant. A hole ten to eleven inches deep and three by three feet in perimeter is obviously a defect, i. e. it does occasion an unreasonable risk of injury to motorists. Thus, the first two elements of plaintiff’s action are affirmatively established.

Defendant’s arguments relate to the third element. It submits that the defect did not cause the injury but that, instead, it was caused by plaintiff’s own fault. We disagree.

The record reveals that plaintiff was proceeding down the highway in a proper manner. After rounding a curve, he sighted an oncoming vehicle, remained in his own lane of travel, and was suddenly confronted with a large hole in the highway. He testified that he could not avoid the hole. Upon impact with it, he was thrown from his motorcycle.

Under these circumstances, we find that plaintiff’s injury was, in fact, caused by the defect (the hole) in the highway. We reject defendant’s assertion that the injury was caused by plaintiff’s own fault.

For the foregoing reasons, the judgment of the district court is affirmed. The costs in the trial court and on appeal in total amount of $291.30 are assessed to defendant.

AFFIRMED.


text:
    Huey LAMBERT v. John W. McREYNOLDS, d/b/a Wes Mac Equipment Company, et al.
    No. 14221.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Writ Granted Sept. 28, 1981.
    Gary McGoffin, Andrus & Preis, Lafayette, for plaintiff.
    Nan M. Landry, Landry, Watkins & Bo-nin, New Iberia, for defendants.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

Plaintiff Huey Lambert brings this appeal from a summary judgment dismissing his tort action against John W. McReynolds, doing business as Wes Mac Equipment Company, Wes Mac, Inc., and Hartford Accident and Indemnity Company, their insurer.

Prior to trial, defendants moved for summary judgment on the merits, attaching to the motion plaintiff’s deposition and the deposition of Mr. McReynolds. They argue that, accepting everything plaintiff says therein as true, he is barred from recovery.

From the record we find that, shortly before the accident, Wes Mac moved its place of business to Red Cypress Road. A large amount of dirt fill was dumped and spread in the areas around the building. A few days before the accident there was a heavy rain, and the dirt was reduced to mud, which was soft and slippery. It was impossible for vehicles to enter the yard, and boards were laid to provide access for pedestrians from the road to the building. Plaintiff testified that he had been to the Wes Mac site on several occasions on business, and was familiar with the condition of the yard when wet.

On the day of the accident, plaintiff had an appointment to meet someone at Wes Mac in the morning. He did not arrive until after noon. He parked his car at the road, and walked back to the building. He testified that he found the board walk too slippery, and walked in the mud beside it. He found the front door of the building locked, so he walked around the side of the building to the side doors, to see if anyone was in the back. He testified that the mud was thick and slippery and he steadied himself by placing his hand on the building. He looked through the doors and saw no one in the back. Mr. Lambert then decided to cut across the yard to his car, because he said, it appeared to be less dangerous. About half way across he came to a clump of mud which was higher than the surrounding mud, and which seemed to be drier. He stepped on it, slipped and fell, breaking his ankle. He testified that the mud concealed a board which someone had placed there.

Defendants argue that plaintiff was quite familiar with the conditions in the yard, and was either contributorily negligent or assumed the risk of the hazard presented by the muddy conditions. The trial judge agreed, finding that there was little point in trying a suit in which plaintiff was barred from recovery by his own testimony.

In this court, plaintiff argues that summary judgment is not an appropriate remedy for a decision of a case on its merits.

In Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), the court said:

“When the evidence submitted on the motion leaves no relevant, genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted (C.C.P. 966), even if the defense is contributory negligence.”

In this case, we agree with the trial judge that plaintiff’s own testimony shows that he was aware of the dangerous condition resulting from the mud in Wes Mac’s yard, but entered and walked around the building and started across the yard. It is settled law that “a landowner is not liable for an injury resulting from a condition .... which was as obvious to a visitor as to the landowner.” Vidrine v. Missouri Farm Ass’n., 339 So.2d 877 (La.App.3rd Cir. 1976).

We find that, under the circumstances of this case, summary judgment is an appropriate remedy, and that the undisputed material facts of the case clearly demonstrate that plaintiff was guilty of contributory negligence.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


author: COLE, Judge.

text:
    Ervin COLLINS v. EMPLOYERS INSURANCE OF WAUSAU.
    No. 14222.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      Gordon Hackman, Boutte, for plaintiff.
    Russell M. Cornelius, Norman & Norman, New Orleans, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue in this case is whether or not Act 494 of 1975, amending and reenacting La.R.S. 22:1406(D)(1), may be applied retroactively to effect uninsured motorist coverage for an incident occurring after its effective date, even though the policy was issued prior to its effective date.

We hold it may not be given retroactive effect in such instances and, therefore, reverse the partial summary judgment from which this appeal was taken.

The original automobile liability policy which was issued provided for coverage from May 31, 1974 to May 31, 1975. Rejection of uninsured motorist coverage was made in writing. A renewal policy issued which provided for coverage from May 31, 1975 to May 31, 1976. No rejection of uninsured motorist coverage was made as regards this renewal policy. On September 12, 1975, Act 494 of 1975 became effective. The incident giving rise to this litigation occurred on February 20, 1976.

Act 494 of 1975 added to the existing law the following reference to uninsured motorist coverage:

“Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.”

Appellee contends even though the renewal policy went into effect approximately three and one-half months prior to the effective date of Act 494 of 1975, any uninsured motorist coverage written into the policy by virtue of the law then in effect was written out of the policy by Act 494 upon its effective date.

The law in effect when the renewal policy issued was Act 154 of 1974. It provides, in pertinent part:

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state... unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy. . .provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.”

Prior to the effective date of Act 494 of 1975, UM coverage was statutorily read into a policy unless the insured specifically rejected it. After its effective date, such coverage may be lost if there has been a rejection in a policy previously issued by the same insurer. Because Act 494 may result in the deprivation of this important right to UM coverage, it is substantive in nature and thus prospective, not retrospective in application. In this instance the contract of insurance in effect at the time of the accident was “delivered or issued for delivery” subject to the provisions of Act 154 of 1974. These provisions vested UM coverage and, once vested, remained in effect during the life of the policy. Only those renewal policies issued after the effective date of Act 494 of 1975 (September 12, 1975) may have their UM coverage deleted by operation of law.

A review of relevant jurisprudence discloses no conflict with our holding in this case, as limited by the specific facts before us. Supportive of our determination is LeBoyd v. Louisiana Transit Co., 375 So.2d 749 (La.App. 4th Cir. 1979), a case with like operative facts. In LeBoyd, the original policy was written in 1967 at which time UM coverage was rejected. It was renewed annually with the viable policy being issued December 31, 1974, before the effective date of Act 494 of 1975. The accident occurred on October 3,1975, after the effective date of Act 494. The court stated, at p. 751:

“[T]he renewal policy in effect at the time of the accident was dated effective December 31, 1974 to December 31, 1975. Therefore, the 1975 amendment cannot be applied to it retroactively. See Pierce v. Hartford Accident & Indemnity Co., 184 So.2d 241 (La.App. 1st Cir. 1966), writ refused [249 La. 201,] 186 So.2d 160. Thus, the applicable law is Act 154 of 1974....”
“Since the only written rejection was the 1967 letter, the question becomes whether the 1967 letter could be effective in 1974, when the policy was renewed. We think not. The 1974-75 policy renewal constituted a new and separate contract and, in the absence of any statutory remission of the usual law, was subject to the entire contract policy. Accordingly, it would have required a new written rejection in 1974 to erase the mandatory uninsured motorist coverage read into the policy by law.”

In treating the effect of another legislative change in R.S. 22:1406(D)(1), this court has held it is the date of issuance of the policy which determines the applicable law, not the date of the accident or event triggering the cause of action. In Breaux v. Government Emp. Ins. Co., 373 So.2d 1335 (La.App. 1st Cir. 1979), the accident occurred March 3, 1976 and the policy had an effective date of March 9, 1975. We held, at page 1337:

“The question of whether Traders’ uninsured motorist coverage is increased to the liability limits must be determined in the light of the provisions of La. R.S. 22:1406(D)(1) as amended by Act 154 of 1974, effective August 1, 1974. Williams v. State Farm Mutual Automobile Insurance Company, 349 So.2d 1275 (La.App. 1st Cir. 1977).”

In Breaux, supra, at page 1338, we distinguished Myers v. Thibeaux,, 365 So.2d 266 (La.App. 3d Cir. 1978), thusly:

“[W]e note that Act 494 of 1975, relied upon by the majority in Myers, above, has an effective date of September 12, 1975, which is six months subsequent to issuance (renewal) of the policy with which we are concerned here. In Myers, above, the issuance (renewal) involved occurred after the effective date of Act 494 of 1975.”

In Williams v. State Farm Mut. Auto. Ins. Co., supra, at page 1278, treating the legislative change in coverage limits, we said:

“Plaintiffs claim that, since the ábove provision went into effect prior to the date of the accident, it automatically increased the uninsured motorists protection .... We find this claim to be without merit. R.S. 22:1406(D)(1) provided that, after August 1,1974, no policy could be ‘delivered or issued for delivery’ without providing for the expanded uninsured motorists coverage. Since this policy was issued and delivered prior to the effective date of the act, we do not believe that the act can have the effect of amending or altering the provisions thereof. On the contrary, we hold that it applies only to policies issued and delivered after August 1, 1974.” [Citation omitted.]

We believe the rationale of Breaux, supra, and Williams, supra, to be applicable to the instant matter even though the statutory change before the court in those cases is different from that here under consideration. In those cases the change dealt with limits of coverage. Here, the change deals with the existence of coverage, per se. We see no contextual difference.

We note also our brothers of the Third Circuit have relied upon the date of issuance of the policy in determining the applicable law. In Landry v. Government Emp. Ins. Co., 390 So.2d 1385 (La.App. 3d Cir. 1980), the court had before it a policy issued August 10, 1973. The accident occurred October 25, 1973. In holding the applicable version of R.S. 22:1406(D)(1) to be contained in Act 137 of 1972, the court commented upon its prior decision of Myers v. Thibeaux, supra, as related to the Fourth Circuit case of LeBoyd, supra. It stated, footnote, page 1389:

“We do not consider this court’s decision in Myers v. Thibeaux, 365 So.2d 266 (La.App. 3d Cir. 1978), as contradicting the findings of the LeBoyd court. Our court in that case was concerned with the effects of prior written rejections on a renewal insurance policy issued subsequent to the passage of Act 494 of 1975.”

Although the precise issue was not before the Second Circuit in Turner v. Allstate Ins. Co., 368 So.2d 797 (La.App. 2d Cir. 1979), we find the pertinent facts in that case to be consistent with those in the case before us and the result to correlate with our view. In Turner, supra, the first policy was issued June 17, 1975. UM coverage was rejected. Act 494 of 1975 intervened prior to the renewal policy which issued June 17, 1976. The accident occurred September 21, 1976. Effect was given to Act 494, the court holding there was no UM coverage.

For the foregoing reasons, and in light of the jurisprudence discussed, we reverse the judgment appealed and assess appellate costs against appellee.

REVERSED.

      . Another issue in LeBoyd, not before us, is whether the rejection need be in writing. Contrary to this court’s decision in A.I.U. Ins. Co. v. Roberts, 395 So.2d 375 (La.App. 1st Cir. 1981), LeBoyd held the rejection must be in writing. Significantly, in A.I.U. Ins. Co. v. Roberts, supra, the policy in effect at the time of the accident was issued and delivered after the effective date of Act 494 of 1975, thus distinguishing that case from the instant one.

      . Act 154 of 1974 amended R.S. 22:1406(D)(1) to mandate UM coverage at liability limits except when the named insured rejects such coverage or opts for lower limits. Previously, the law required only limits described in the Motor Vehicle Safety Responsibility Law.

      . Cf. Thibodeaux v. Olivier, 394 So.2d 684 (La.App. 3d Cir. 1981); Hebert v. Breaux, 398 So.2d 1299 (La.App. 3d Cir. 1981).