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

text:
    Bobby MARTIN and Dixie M. Martin, Plaintiffs-Appellants, v. John W. McHANN; Nix Brokerage Company and West American Insurance Company, Defendants-Appellees.
    No. 14640.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.

      Farrar, Perry & Jefferson by Harvey P. Perry, Monroe, for plaintiffs-appellants.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendants-appellees.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

This appeal by plaintiffs, husband and wife, presents for our consideration the narrow issue of whether a damage award in appellants’ favor for whiplash injuries sustained by the wife in an automobile accident is inadequate. We answer in the negative and affirm.

Factual circumstances surrounding the accident were undisputed and liability was not seriously contested. On August 29, 1977 a car driven by Mrs. Dixie Martin, while stopped on DeSiard Street in Monroe waiting for preceding traffic to move, was struck from the rear by an automobile operated by John McHann and owned by his employer, Nix Brokerage. As a result of the impact, which only slightly damaged the involved vehicles, Mrs. Martin’s neck was thrown backward and forward in typical whiplash fashion.

This suit was filed on August 29, 1978 by Mrs. Martin and her husband against McHann, his employer and its liability insurer. McHann, a resident of Mississippi, did not appear to testify at the trial, which was held on November 17, 1980. In an excellent, detailed written opinion, the trial judge concluded that Mrs. Martin had sustained a mild to moderate whiplash injury to the muscles of her neck and upper shoulder area from which she had fully recovered by the end of 1978. He awarded general damages in the sum of $17,000 and special damages (largely for reimbursement of medical expenses) in the amount of $2,606.68. The trial judge explained that he made no award for lost wages or diminished earning capacity because there was no evidence that Mrs. Martin had either been employed for some years prior to the accident or intended to seek employment thereafter.

Mrs. Martin, who resided in Crossett, Arkansas, testified that immediately after the accident her neck “felt funny but it didn’t hurt at that time.” However, because her neck was “real sore” the next morning, she visited her family physician in Crossett, Dr. Toon. According to Mrs. Martin, Dr. Toon had X-rays taken of her neck, which were negative, and said that her neck would probably be sore for two or three weeks. He prescribed pain medication and muscle relaxants.

Because Mrs. Martin experienced no relief from her neck pain, she was referred by Dr. Toon to Dr. Altenberg, a Monroe orthopedic surgeon. Mrs Martin testified that she visited Dr. Altenberg around October 1, 1977. He examined the X-rays which had been taken for Dr. Toon and confirmed that they were negative. This physician then informed Mrs. Martin that she would possibly have neck pains for two or three more months and to “just bite the bullet and it would go away.”

Soon thereafter Mrs. Martin started going to Dr. Chenoweth, a Crossett chiropractor, who treated her neck condition until February, 1978. These treatments consisted primarily of neck manipulations and the application of heat to the neck and shoulder muscles. Mrs. Martin also wore a cervical collar for some four months.

Since her daily headaches failed to respond to the chiropractor’s treatment, Mrs. Martin returned to her family doctor, who made an appointment for her with Dr. Sisk at the Campbell Clinic in Memphis, Tennessee. Mrs. Martin stated that she was seen by Dr. Sisk in February 1978, at which time extensive X-rays were taken. Mrs. Martin testified that these X-rays were also negative. She related that Dr. Sisk simply recommended a program of physical therapy that could be engaged in at home. Mrs. Martin stated that this regimen likewise proved futile in relieving her pain.

Neither Dr. Toon, Dr. Altenberg, Dr. Chenoweth nor Dr. Sisk testified at the trial. Further, the testimony of none of the doctors was presented in any other form for consideration by the trial judge.

On August 18,1978 Mrs. Martin consulted Dr. Retia Edmonson, a Texarkana neurosurgeon. This physician, whose statement was filed in evidence, found at the time of her initial examination that Mrs. Martin had spasm and tenderness about the shoulder girdle regions and the back of the neck. Secondary to that, Dr. Edmonson noted an irritation of the greater occipital nerves which arise at the base of the skull. These symptoms were characterized as consistent with a whiplash type injury.

Dr. Edmonson had Mrs. Martin admitted to a hospital on August 20,1978 for medical tests, including X-rays. All of these proved negative and Mrs. Martin was discharged from the hospital after several days. Thereafter, and until August 5, 1980, Mrs. Martin visited Dr. Edmonson a total of some 12 times for treatment of her neck condition, usually complaining of headaches and soreness in her shoulders and the back of her neck. Dr. Edmonson stated that during the course of these visits the intensity of objective symptoms varied from slight or moderate to severe. Range of neck motion was diminished in all directions.

On an office visit in March 1979, Mrs. Martin related to Dr. Edmonson that she was driving a distance of 115 miles almost every day to visit her terminally ill mother in Rayville, Louisiana. This continued for a period of about six months.

In the summer of 1980 Dr. Edmonson referred Mrs. Martin to a gynecologist for treatment of menstrual problems. Mrs. Martin testified that she had been plagued with this difficulty since the birth of her last child about four years earlier. She underwent a hysterectomy in August 1980.

Dr. Edmonson last saw Mrs. Martin on August 5, 1980, and found that she was continuing to improve. She stated, in summary, that Mrs. Martin displayed objective clinical evidence of “cervical, trapezius, rhomboid myocytis with some secondary occipital neuralgia.” She expected this to heal over a period of time, adding: “I think that normally these things do when they get rid of some of their tensions and anxieties . . . that has kept her in a sort of a spasm all the time.”

Mrs. Martin was examined by Dr. Norris C. Knight, Jr., an orthopedic surgeon, at defendants’ request, on December 17, 1979. Dr. Knight performed extensive tests and took X-rays. The latter revealed degenerative arthritic changes in the thoracic spine and some loss of the lordotic curve in the cervical spine, due to a deep muscle spasm. Dr. Knight concluded that Mrs. Martin had suffered a cervical sprain. Because of the loss of motion in her neck and the loss of the lordotic curve, he assigned to Mrs. Martin a disability of 5% to the body as a whole.

At the trial a substantial portion of Mrs. Martin’s testimony was devoted to a description of the contrast between her lifestyle prior to the accident (very active physically, particularly involving teenage daughter) and after the accident (severely restricted, lying on heating pads, consuming large quantities of pain medication, inability to do housework or care for young child). Mrs. Martin’s testimony was corroborated by that of her husband and adolescent daughter.

The trial judge correctly found that Mrs. Martin sustained a whiplash injury as a result of the 1977 automobile accident. Although none of the physicians whose testimony was presented classified the seriousness of the injury in the continuum between mild and severe, we cannot say from our review of the record that the trial judge was clearly wrong in characterizing it as a “moderate” whiplash.

Although the record indicates that the consequences of this injury to Mrs. Martin were probably aggravated by and possibly extended because of gynecological problems and the stress of attending a terminally ill mother, we find it unnecessary to assume the impossible task of separating these different causative strands. For, in the final analysis, our study of the record convinces us that the award of $17,000 in general damages was not an abuse of the trial judge’s broad discretion.

Plaintiffs also complain of an inadequate award for special damages. In a very comprehensive section of his written opinion, the trial judge discusses each claimed item of special damages and efficiently documents each allowance or rejection. As he points out, this claim for special damages is quite confusing because “not only are a number of medical and drug statements in the nature of running accounts over long periods of time without explanation or corroboration, but there are transportation charges for mileage which does not comport with the meager evidence presented as to distances.” Be that as it may, the award made for special damages is fully supported by the record.

Finally, although not asking for damages for Mrs. Martin’s loss of earning capacity in their petition, plaintiffs now argue that the trial judge erred in refusing to make an award for that item.

It is recognized that even if a claimant was unemployed at the time of his injury he may be entitled to an award for impairment or diminution of earning power, which is based on the injured person’s ability to earn money rather than what he actually earned before the injury. Folse v. Fakouri, 371 So.2d 1120 (La.1979).

However, as is customarily required in civil cases, one who claims damages for loss of earning power must prove his loss by a preponderance of the evidence. Chaney v. Our Lady of Fatima Catholic Church, 391 So.2d 501 (La.App.3rd Cir.1980).

As the trial judge correctly points out, this record is totally devoid of any evidence upon which an award could be based for Mrs. Martin’s impairment of earning capacity due to the accident. She had not worked for some years prior to the accident. There was no expression on her part of an intention to secure employment in the future and, obviously, no description of the possible nature of that employment nor anticipated rate of remuneration. Under the circumstances this claim was properly denied.

For the reasons stated, we affirm the judgment of the district court, at appellants’ cost.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Loretta Ray RIVERS, Plaintiff-Appellant, v. Jack Looney RIVERS, Defendant-Appellee.
    No. 14641.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.

      Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The issue in this appeal is whether the mere refusal of the holder of a promissory note to accept the tender of three installment payments on the note, two of which were past due and the other not yet due, is sufficient to accelerate maturity of the note under this acceleration clause:

“Failure to pay any two (2) successive installments on this note at maturity shall, at the option of the holder and owner, mature this note in its entirety and render it due and exigible for the unpaid balance, including principal, interest, attorney’s fees and costs.”

The note also contains the usual waiver of presentment, notice of dishonor, and protest.

After refusing the additional and timely tender of the other monthly installment payments as they came due over a period of five months, the holder then sued the maker, and for the first time claimed that maturity had been accelerated by the maker’s failure to timely pay the two installments first mentioned. The stipulated facts do not show that the holder made demand on the maker or otherwise gave the maker clear and unequivocal notice of her intention to accelerate maturity until she filed suit. At best, the record shows only that the holder refused the tendered installments. The trial court judgment rejected the demands of the holder, who appeals. We affirm.

The general rule is that a clause allowing the holder to accelerate maturity at her option is not operative until the holder takes some affirmative action clearly and unequivocally evidencing her intention to the maker. Chapman v. Capri Construction Company, 248 So.2d 101 (La.App. 4th Cir. 1971). See Annotation at 5 A.L.R.2d 968, as supplemented. Compare Meyer v. Consolidated Marketing, Inc., 376 So.2d 1278 (La.App. 2d Cir. 1979). No hard and fast rule can be laid down and the circumstances of each case will determine whether the action taken by the holder is sufficient to exercise the option afforded by a particular acceleration clause. 5 A.L.R.2d at p. 972.

In Meyer, supra, the note was payable in annual installments. We specifically noted there that the holder refused tender of the past due annual installment “... and notified [the maker] that he was asserting his rights under the acceleration provisions . . . and demanded immediate payment of all future installments. [The maker] refused [on June 8, 1978] and this suit ensued [on June 19, 1978].” 376 So.2d 1279, 1280. In Meyer, where the exercise of the option to accelerate maturity was not squarely at issue, it was nonetheless emphasized that the holder simultaneously refused the tender of the late payment on the note and exercised the option to accelerate maturity.

Here, the holder’s refusal of the late payment occurred six months before the holder attempted to take any affirmative action to clearly and unequivocally evidence to the maker her exercise of the option to accelerate. When she attempted to accelerate maturity, the maker had timely tendered to her each month an installment payment for six consecutive months. Where the contract does not provide the time in which an option may be exercised, the law implies a reasonable time to be determined by the circumstances of the individual case. See CC Art. 1808, 1812. Travelers Indem. Co. v. Ducote, 380 So.2d 10 (La.1979); Horace Mann Ins. Co. v. Casualty Reciprocal, 383 So.2d 1040 (La.App. 1st Cir. 1980.) While the holder’s refusal of the maker’s repeated and timely tenders of the monthly installments could be some indication that the holder wished the note paid in full, this refusal, essentially a negative and unexplained response, is not affirmative action on the part of the holder clearly and unequivocally evidencing to the maker, the holder’s intent to exercise her option to accelerate maturity.

Under these circumstances, and at appellant’s cost, judgment is

AFFIRMED.

      . These provisions are the subject matter of Part 5, Chap. 3, Commercial Paper, LRS 10:3-501 — 3-511. These provisions concern how and when a secondary party on the note may be held liable and do not concern whether and when the maturity of a note is accelerated. § 3-503(1 )(d) does provide that presentment, where applicable, is due within a reasonable time after acceleration. Whether and when maturity of a note payable in installments is accelerated, is determined by circumstances peculiar to the individual case. See Annotation, 5 A.L.R.2d 968, as supplemented.


author: FRED W. JONES, Judge.

text:
    Charley GILLIAM and Eula Gilliam, Plaintiffs-Appellees, v. Terry HAYES, Commissioner of Public Safety for the City of Shreveport; Mayor Calhoun Allen, Mayor for the City of Shreveport; Shreveport City Council; E. R. Waites and Michael Sullivan, Defendants-Appellants.
    No. 14642.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.

      Charles C. Grubb, City Atty. by Roland J. Achee, Asst. City Atty., Shreveport, for defendants-appellants.
    Thompson & Smith by Arthur G. Thompson, Shreveport, for plaintiffs-appellees.
    Before PRICE, HALL and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

A husband and wife sued for damages for injuries allegedly sustained by the wife as the result of a battery committed upon her by an on-duty Shreveport police officer. From a judgment in favor of the plaintiffs against the City of Shreveport alone, the latter appeals, along with the Shreveport City Council and the two defendant police officers. We reverse.

This suit was filed on March 24, 1977, based upon an incident which allegedly occurred on March 25, 1976. Named as defendants were Terry Hayes, Commissioner of Public Safety for Shreveport, Calhoun Allen, Mayor of Shreveport, the Shreveport City Council, and E. R. Waites and Mike Sullivan, Shreveport police officers. An exception of no cause of action or no right of action was filed on behalf of Hayes, Allen and the Shreveport City Council, pointing out that the petition alleged employment of the two police officers by the City of Shreveport rather than by the exceptors. The exception was ultimately sustained as to Hayes and Allen, leaving as the only defendants the Shreveport City Council and the two police officers. After the trial, which began on July 31, 1980, judgment was rendered in favor of plaintiffs against the City of Shreveport only, awarding general damages of $3,000 and medical expenses of $480.

The City of Shreveport contends on appeal that the judgment rendered against it was a nullity because the municipal corporation was not made a party to this litigation nor was it ever cited. Obviously, this is not a frivolous argument. Louisiana R.S. 33:53 provides in part that “the corporate name of a city shall be ‘The City of _;’ . . . and by such name it may sue and be sued ...” Louisiana R.S. 13:5107 specifies the manner in which citation and service may be obtained in suits against political subdivisions of the state. In this case the City of Shreveport was not named specifically as a party defendant nor was service made upon it as prescribed by law. However, rather than disposing of the appeal on this procedural basis, we have considered the matter on the merits, concluding that the trial judge was clearly wrong in his factual determination which served as a basis for the judgment against the City of Shreveport, assuming that the latter was properly made a- party defendant.

The record reveals that on March 25, 1976, at about 5:00 o’clock in the afternoon, Ernestine Samuels, agent for a life insurance company, went to the Shreveport residence of a customer, Eula Gilliam, to collect an insurance premium. Since a heavy rain had started falling, Mrs. Samuels did not leave after receiving the premium. Instead, she and Mrs'. Gilliam sat around the latter’s dining room table taking for several hours, while Mr. Gilliam watched television in another room. Both ladies denied consuming any alcoholic beverages during this time.

When the rain started to slacken at about 9:00 o’clock, Mrs. Samuels went out of the house to depart in her car but could not start the engine. With assistance from Mr. Gilliam, she was finally able to start the vehicle. However, Mrs. Gilliam though it advisable to accompany her friend home because of the possibility she might experience further difficulty with her automobile on the way. Mrs. Gilliam requested that her husband follow in his car in order to bring her back, but Mr. Gilliam apparently misunderstood the request since he simply went back into the house and resumed his television viewing.

After traversing several streets, with Mrs. Gilliam seated beside her, Mrs. Samu-els drove onto 1-20 and proceeded west, driving at a slow rate of speed because of the rain and the fogging of her windshield, which Mrs. Gilliam continually wiped with a towel. They left the interstate highway at the Monkhouse Drive exit, stopped at that thoroughfare before turning left onto it, and then proceeded to the intersection with Hollywood Avenue. After making what Mrs. Samuels described as a “slouchy” left turn onto Hollywood Avenue, the driver observed a flashing red light to the rear and pulled over to the curb, stopping her vehicle.

The testimony of Mrs. Samuels and Mrs. Gilliam is substantially similar concerning the critical events which next transpired. They stated that a uniformed police officer (later identified by them as defendant Waites) came to the driver’s window, made a remark about her erratic driving and asked what she had been drinking. As the two car occupants started to explain about the trouble with the vehicle, without any prior warning and for no rational reason, another police officer (later identified by Mrs. Samuels as the defendant Sullivan) suddenly opened the car door on Mrs. Gilliam’s side, jerked her out of the vehicle and proceeded to administer blows to her head and body, giving her a thorough beating.

Mrs. Samuels testified that, although it was dark and still raining, she observed Sullivan strike Mrs. Gilliam a series (more than five) of “terrible blows” about the face, head and arms, during which time Mrs. Gilliam was “screaming and hollering”. She said that Sullivan appeared to be attired in a jump suit and that both officers stood out in the rain “getting drenched”.

Mrs. Samuels acknowledged that, after receiving a field sobriety test, she was arrested for driving while intoxicated. It was her testimony that she was taken to the police station by Officer Waites in a police car. She denied taking any kind of test for alcohol at the station. She said that she saw Mrs. Gilliam, who had been handcuffed and transported in another vehicle, at the police station. Mrs. Samuels stated that Mrs. Gilliam was wet and muddy, that her face was beginning to swell, and that her arms had deep scratches or claw marks on them. Mrs. Samuels was released on bond that night. The next day she accompanied Mrs. Gilliam to police headquarters to make a formal complaint about the conduct of the officer who committed the battery upon Mrs. Gilliam. It was then that she allegedly learned his name was Sullivan.

Mrs. Gilliam testified that they were stopped by Officer Waites “for no reason whatever” since there was nothing unusual about Mrs. Samuels’ driving. She stated that an individual other than Waites, whom she could not recognize because of the darkness, pulled her out of the car and struck her repeatedly. She said that he knocked her down and “every time I tried to get up he just kept hitting me and after I stood up he was still hitting me and knocking me back down.”

Mrs. Gilliam was arrested for using profanity in public and was taken to the police station for booking. She was released on bond that night and returned to her home. She asserted that, upon arising the next morning, she could hardly walk, had difficulty turning her neck and could not raise one of her arms. She consulted her physician because of these complaints. Following that, Mrs. Samuels drove by and took her down to police headquarters to make a formal complaint about the police officer’s misconduct.

The involved officers’ version of the incident is quite different from that of Mrs. Samuels and Mrs. Gilliam. Michael Sullivan testified that on March 25, 1976 he was employed as a detective by the Shreveport Police Department and was working the evening shift, attired in a business suit. That evening, in a misty rain, he was driving west on 1-20 when he noticed another vehicle proceeding ahead of him at a very slow rate of speed, weaving from lane to lane. As he turned onto the Monkhouse Drive exit, preparatory to traveling to the Shreveport airport, the other car turned abruptly across the exit lane in front of him. He followed it as the driver turned left onto Monkhouse Drive and then left again on Hollywood Avenue. At that point Sullivan turned on the red revolving light positioned on his dashboard and stopped the other car.

Sullivan stated that he walked to the driver’s side of the car, displayed his officer’s badge, and asked the operator if she had been drinking. Both the driver and her passenger started talking about car trouble. At this time Officer Waites drove up in a “paddy wagon” and stopped to render assistance. The two officers had the driver get out of her vehicle and started administering a field sobriety test to her. Sullivan asserted that she smelled of alcohol and was unsteady on her feet. He said that the test was interrupted by Mrs. Gilliam who got out of the car and started cursing the officers. Waites told her to be quiet and get back into the car or he would place her under arrest. Mrs. Gilliam continued cursing and struck at Waites who threw up an arm to ward off the blow. Mrs. Gilliam struck his arm and fell to the ground. She then grabbed Waites by the leg as he was attempting to help her up. Sullivan stated that he went over, placed handcuffs on Mrs. Gilliam, and the officers lifted her to her feet. She was placed under arrest and transported to the police station by another officer. Sullivan, who was 6'3" tall and weighed 245 pounds, denied ever striking Mrs. Gilliam.

The testimony of Officer Waites was substantially the same as that of Detective Sullivan. Arriving in his “paddy wagon” at the place on Hollywood Avenue where Sullivan had stopped the Samuels vehicle, Waites got out and together with Sullivan had started giving the driver a field sobriety test when the passenger began haranguing them. Since she was standing only a foot in front of him, cursing, Waites could easily smell alcohol on her breath. When she refused to get back into the car and continued cursing, Waites informed Mrs. Gilliam that she was under arrest. In response, she struck at him with her right hand. Waites testified that as he held up his left arm to protect himself against the intended blow, Mrs. Gilliam hit that arm, slipped and fell to the pavement. When he reached down to assist her to her feet, she grabbed him by the leg and started pinching it. He pulled her hand away. At that time Sullivan came over and the two of them placed handcuffs on Mrs. Gilliam. Waites, 6'4" tall and weighing 220 pounds, denied ever striking Mrs. Gilliam.

After Mrs. Gilliam was subdued, Waites took Mrs. Samuels to the police station. He stated that Mrs. Samuels spoke with slurred speech, was unsteady on her feet, and was obviously intoxicated. Upon their arrival at the station, Waites read Mrs. Samuels her constitutional rights and remained in the room while another officer administered the alcohol breath test to Mrs. Samuels, using a photo-electric intoximeter machine.

John Guevara, who was a lieutenant “in the patrol division of the Shreveport Police Department on the date in question, testified that he was called to assist Waites and Sullivan because of their reported difficulty in effecting the arrest of two females they had stopped. Upon arriving at the scene Guevara said that one of the females was sitting in the “paddy wagon” and that the other (later identified by him as Mrs. Gilliam) was standing in front of that vehicle using loud and abusive language.

Guevara transported Mrs. Gilliam to the police station in his patrol car. He stated that she had a strong odor of alcohol on her breath and appeared to be extremely intoxicated. Although apparently disturbed; Mrs. Gilliam made no complaint of police mistreatment.

Guevara also had án opportunity to observe Mrs. Samuels at the police station. He testified that she was also in a state of intoxication.

Ernest Gullion, a Shreveport police officer, testified that he administered a PEI test for alcohol to Mrs. Samuels on the night of March 25, 1976, and that the test result showed an alcohol blood content of .120%. Gullion had been properly certified to administer tests of this nature and had been performing them for some three and a half years. He added that from his personal observation Mrs. Samuels appeared to be intoxicated.

On the night of her arrest booking photographs were made of Mrs. Gilliam at the police station. These pictures, received in evidence at the trial, do not reveal injuries to her head or eyes.

Mrs. Gilliam visited Dr. V. M. Osetinsky on March 26, 1976, the day after her encounter with the police officers and her arrest. She complained of hurting in her arm and shoulder because of being “manhandled” by the police. Dr. Osetinsky noted in his records that Mrs. Gilliam was a 43 year old black female, 5'4" tall, weighing 185 pounds. He testified that, upon examination, he found a bruise on the right arm about IV2 by 4 inches in size; a small superficial abrasion in the area of the bruise; and a mild swelling on the right side of the neck, without discoloration. No mention was made of head injuries nor of swelling about the eyes.

In a comprehensive written opinion the trial judge made the following significant findings of fact: (1) That Mrs. Samuels was driving her car in an erratic manner, giving the police officer “every reason and right” to stop her; (2) that Mrs. Samuels was operating her vehicle while under the influence of an alcoholic beverage; (3) that it was only after the Samuels car was stopped by Sullivan that Waites arrived on the scene; and (4) that Mrs. Samuels was asked to get out of the car and thereafter Mrs. Gilliam got out of the vehicle. Each of these findings of fact necessarily involved a determination by the trial judge, in assessing witness credibility, that Mrs. Samuels and Mrs. Gilliam were testifying falsely on those points and the police officers were testifying truthfully.

However, the trial judge then concluded that one of the police officers (whom he could not identify because of the confused testimony) used more force than was necessary to arrest Mrs. Gilliam. The only basis for this finding was the trial judge’s determination that the nature of Mrs. Gilliam’s injuries, as described by her, Mrs. Samuels and Dr. Osetenski, was such that they “must have resulted from various blows instead of one slip and fall since they were great enough to draw blood.”

We are aware, of course, that on questions of fact a reviewing court may not disturb findings by the trial judge, based upon evidence which furnishes a reasonable basis for those findings, in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, if the appellate court concludes that the trial judge’s factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Davis v. Owens, 368 So.2d 1052 (La.1979).

In this case we have concluded that the trial judge was clearly wrong in his finding that, because of the nature of her injuries, Mrs. Gilliam must have been the victim of excessive force inflicted upon her by one of the police officers. First, it is obvious that if Mrs. Gilliam had been struck the number of forceful blows described by her and Mrs. Samuels, the injuries inflicted would have probably been apparent from her booking photographs and would certainly have been observed by Dr. Osetinsky the day after the alleged battery. We consider it extremely significant that Dr. Osetinsky saw no evidence of such a vicious beating. Conversely, the injuries he described were entirely consistent with bruises received by one who slipped and fell as the police officers testified happened to Mrs. Gilliam. On its face the testimony of Dr. Osetinsky impeaches that of Mrs. Gilliam and Mrs. Samuels on this point. In fact, we note that the trial judge did not even accept their version of the alleged battery but simply found that one of the officers use more physical force than necessary in arresting Mrs. Gilliam — based solely upon the description by her and Mrs. Samuels of Mrs. Gilliam’s injuries.

On every other significant factual issue in the case the trial judge discredited the testimony of Mrs. Gilliam and Mrs. Samuels. Once it is concluded, as we do, that their testimony on this question of the nature of Mrs. Gilliam’s injuries was effectively impeached by the lack of corroboration by Dr. Osetinsky, it is apparent that the record does not support the trial judge’s finding of fact which resulted in the judgment against the City of Shreveport. Of course, this entire subject gains proper perspective when viewed in the context of the trial judge’s resolving against plaintiffs the key issue of intoxication. That fact-finding clearly went to the heart of the issue of the credibility of Mrs. Gilliam and Mrs. Samuels. See State v. Luckett, 327 So.2d 365 (La.1975).

To summarize, the record does not show that plaintiffs proved by a preponderance of the evidence that either Detective Sullivan or Officer Waites committed a battery upon Mrs. Gilliam during the course of the incident which occurred on March 25, 1976. Consequently, we reverse the judgment of the district court and render judgment dismissing plaintiffs’ suit.

Costs both in the district court and on appeal are assessed to appellees.

       La.R.S. 32:662, subd. A, par. 1(c) establishes a presumption that a person was under the influence of alcoholic beverages if the test result showed an alcohol blood content of .10% or more.


text:
    PROSPERITY PARK, INC., Plaintiff-Appellee, v. Dorothy Britton BARTON, Defendant-Appellant.
    No. 14645.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.

      Elie, Ferrouillet & Ferrouillet by Eric M. Ferrouillet, New Orleans, for defendant-appellant.
    Paul Henry Kidd, Monroe, for plaintiff-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

Ms. Barton appeals a judgment declaring lesionary the plaintiff corporation’s sale to her of 154 acres and ordering cancellation of the sale from the public records upon fulfillment of the condition that the actual consideration Ms. Barton paid or obligated herself to pay be returned to Ms. Barton.

Ms. Barton is the sister of Albert Britton, who is divorced from Elizabeth Mayo Brit-ton, a plaintiff-appellee in this action. This court recently affirmed a summary judgment making executory in Louisiana an Ohio judgment that recognized Mrs. Britton to be the owner of all of the corporate stock of the plaintiff corporation;

In this appeal, Ms. Barton contends that the lower court erred in overruling her exceptions that Mrs. Britton did not have a right of action and that she did not join Albert Britton as an indispensable party. Ms. Barton also complains that the lower court erred in allowing Ms. Barton only 30 days in which to elect whether to pay the corporation an amount which would cure lesion beyond moiety or to receive back the consideration Ms. Barton actually paid or obligated herself to pay. Appellees (Prosperity Park, Inc. and Mrs. Britton) move to dismiss the appeal on the grounds that it was not perfected and seek to be awarded damages for frivolous appeal. Ms. Barton does not assert error as to the merits of the finding of lesion. We affirm on the merits and deny appellee’s motion.

Mr. Britton purchased the 154 acres in April 1975 while he and his wife were living together in Ohio. They later moved to Louisiana and he then transferred the property to Prosperity Park, Inc., a corporation which he created in Louisiana in 1976 and solely owned. On June 4, 1979, when the Brittons were in the midst of the divorce action in Ohio, Mr. Britton sold the 154 acres to Ms. Barton.

The Ohio judgment granting a divorce and adjudicating the ownership of some movable property rights was rendered in the Ohio trial court on August 27, 1979. That judgment was signed in Ohio about March 25 1980, and was affirmed there on appeal on September 18, 1980. Mr. Britton was ordered to “do those things necessary to transfer to [Mrs. Britton] 100% of [the shares of stock of Prosperity Park, Inc.].” Also on March 25, 1980, Mr. Britton caused dissolution proceedings to be filed in Louisiana to dissolve Prosperity Park, Inc., and to appoint a liquidator. On October 17, 1980, Mrs. Britton had herself appointed liquidator of the corporation and filed the action to set aside the 1976 sale to Ms. Barton on grounds including lesion beyond moiety.

We affirmed the judgment making executory in Louisiana, the Ohio judg.ment that recognized Mrs. Britton as the owner of 100 percent of the corporate stock of Prosperity Park, Inc. Mrs. Britton’s appointment as liquidator of the corporation was not directly attacked and indeed, Mrs. Britton could have been appointed as liquidator without being a shareholder or a creditor of the corporation. Compare LRS 12:144 (A) and 148 (E). A liquidator of a corporation has the capacity and authority to bring suit in the name of the corporation for a corporate cause of action. LRS 12:145 C(l); The House of Campbell, Inc. v. Campbell, 172 So.2d 727 (La.App. 4th Cir. 1965). The trial court correctly overruled the exception of no right of action directed at the liquidator’s capacity.

Mr. Britton was not an indispensable party. The corporation he created was a separate and distinct legal entity with the capacity to own property and to sue and be sued. LRS 12:41 B(3) and (5). Mr. Britton had no further interest in the 154 acres after he sold or exchanged that acreage to the corporation. Britton’s interest in the corporate stock was adjudicated to Mrs. Britton by the Ohio judgment which became executory in Louisiana. He was not directly affected by the adjudication in this action between the corporation and Ms. Barton. CCP 641. The trial court correctly overruled the exception of nonjoinder.

The judgments, out of which arose the 30-day period complained of by Ms. Barton, generally attempt to follow the mandates of CC Arts. 1877-1880. CC 1877 provides that in cases of lesion, the purchaser may elect either to rescind the sale or to have it confirmed on paying the full value and that this election must be made within a period designated in an interlocutory decree determining the true value and the terms on which the payment is to be made. CC Arts. 1878-80 set forth the obligations of the parties in each alternative and authorize the trial judge to “make compensation” between the respective demands of the parties and to determine who shall pay what amount to whom, according to the principles set forth in the Articles.

We find no abuse of discretion in the trial court’s allowing 30 days as the period of time in this case for the purchaser to make her election. CC 1877. That period of time, however, should not begin to run until the judgment of the lower court becomes final and definitive. CCP 1842, 2167.

On January 13, 1981, the interlocutory judgment decreed that the property had a value of $241,000 on June 5, 1979, and that Ms. Barton was allowed 30 days in which to elect to retain title or to rescind the sale, conditioned upon Ms. Barton paying $189,-817 or upon plaintiff returning to Ms. Barton $51,183, depending on Ms. Barton’s election. The judgment further decreed that in the event Ms. Barton elected to rescind the sale or failed to make the election within the 30-day period, that a final judgment would be rendered ordering the sale can-celled and erased from the public conveyance records upon plaintiff depositing $51,-183, plus legal interest, into the registry of the court. A final judgment to this effect was signed on February 13, 1981, when Ms. Barton made no election.

On January 22 Ms. Barton applied for a new trial but withdrew her application on February 6. On February 17 she was granted a suspensive appeal and posted a $10,000 appeal bond on February 19. Plaintiff then ruled Ms. Barton to show cause why the appeal bond should not be increased to one and one-half times the difference between the purchase price and the total value of the property. While this rule was pending, on March 13, 1981, Ms. Barton amended her petition for suspensive appeal to appeal from the final judgment of February 13. Plaintiff sought to dismiss that appeal in the trial court and seeks to dismiss it here.

After a hearing on the rule to show cause, the trial court ruled that this was not a “money judgment” within the purview of CCP 2124(1) requiring one and one-half times the amount of the judgment for a suspensive appeal bond, that the appeal was timely as to the interlocutory judgment of January 13 and as to the February 13 “final” judgment, but that a suspensive appeal was not allowed from the February 13 judgment because Ms. Barton had not timely posted a bond for that appeal. The appeal of the February 13 judgment was correctly recognized by the trial court as a timely devolutive appeal for which no bond is now required. CCP 2124.

Under the circumstances of this record, Ms. Barton timely applied for a new trial. Before the trial court ruled, Ms. Barton withdrew her application and, within 30 days of that withdrawal, timely perfected a suspensive appeal of the January 13 judgment. CCP 2123. A judgment creditor may proceed with the execution of a judgment only after the delay for a suspensive appeal has elapsed. CCP 2252. The February 13 judgment was in partial execution of the January 13 judgment while the delay for a suspensive appeal had not elapsed, and that judgment of February 13, which was devolutively appealed, must be set aside as premature. CCP 2252. The 30 days allowed Ms. Barton in the January 13 judgment, which was suspensively appealed, does not begin to run until this opinion becomes final. CCP 2167. The trial court otherwise correctly ruled regarding the procedures below that led to these appeals, and the plaintiff’s motion to dismiss the appeals) here is denied.

Ms. Barton does not contend that the trial court erred in making compensation between the respective demands of each party as CC 1880 directs. The only remaining issue then is the claim of plaintiff-ap-pellees for damages for the alleged frivolous appeal. CCP 2164. Plaintiffs-appel-lees did not answer the appeal but made the claim in the motion to dismiss in this court: “plaintiff-appellees . . . respectfully move to dismiss the appeal . . . and to assess defendant-appellant . . . attorney fees for a frivolous appeal ...”

Damages for a frivolous appeal were allowable under the old Code of Practice. See comment (e) under CCP 2164. Before and after the enactment of the Code of Civil Procedure in 1960, cases interpreting the statutory authority for such damages, squarely held that a motion to dismiss an appeal cannot be based on the grounds that the appeal is frivolous and that damages for a frivolous appeal cannot be claimed on a motion to dismiss, but only by an answer to the appeal. CCP 2133, Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 (1956); Meyers, Whitty & Hodge, Inc. v. Popich Marine Const., 143 So.2d 739 (4th Cir. 1962). Damages for frivolous appeal are denied.

The judgment of February 13,1981, is set aside and the judgment of January 13,1981, all at appellant’s cost, is AFFIRMED.

      . Britton v. Britton, No. 14, 617, unpublished opinion rendered August 26, 1981. This was the most recent of a series of protracted litigation involving these parties. Earlier we considered an eviction action in Barton v. Britton, No. 14,169, unpublished opinion rendered June 10, 1980, and a summary judgment in Britton v. Britton, No. 14,553, unpublished opinion rendered April 20, 1981.


author: HALL, Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY and Patricia C. Moore, Plaintiffs-Appellees, v. Roy D. AVANT, Roger Sanderson, Defendants-Appellants, and The Maryland Casualty Company, Appellee.
    No. 14646.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.
    Guerriero, Smith, Hingle & Anzalone by Joseph D. Guerriero, Monroe, for defendant-appellant, Roger Sanderson.
    Johnson, Johnson & Johnson by Neal G. Johnson, Monroe, for plaintiffs-appellees, State Farm Fire and Cas. Co. and Patricia C. Moore.
    Theus, Grisham, Davis & Leigh by Brian E. Crawford, Monroe, for appellee, The Maryland Cas. Co.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   HALL, Judge.

The question presented by this appeal is whether the comprehensive general liability insurer of one of the defendants was properly granted a summary judgment on the basis that the policy issued to its insured, Roger Sanderson, excluded coverage for the insured’s alleged acts of negligence under the completed operations hazards exclusion contained in the policy. Finding that the summary judgment was properly granted, we affirm.

Appellant, Roger Sanderson, a brick mason, built a fireplace in a new home over and in close proximity to a wooden beam, and as a result of the defective design and construction a fire occurred resulting in some $40,000 in property damage. The homeowner and her fire insurer sued to recover the fire loss and included among defendants were Sanderson and his comprehensive general liability insurer, The Maryland Casualty Co.

The house was built in 1978, and the fire occurred February 4, 1980, long after the completion of the construction. Appellant’s liability policy excluded from coverage completed operations and product hazards, and because the fire here occurred after the completion of the work the insurer filed a motion for summary judgment which was granted, and it is this judgment that is here appealed.

The comprehensive general liability insurance policy issued to Sanderson by Maryland Casualty contains the following exclusion:

“It is agreed that such insurance as is afforded by the Bodily Injury Liability Coverage and the Property Damage Liability Coverage does not apply to bodily injury or property damage included within the Completed Operations Hazard or the Products Hazard.”

Both completed operations hazard and products hazard are defined in the policy:

“ ‘completed operations hazard’ includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
“(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed,
“(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
“(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
“Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.”
“ ‘products hazard’ includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others. . . . ”

The coverages provided by appellant’s policy were designed to cover appellant’s liability for losses which occur during the actual period of construction. Where completed operations and products hazards are excluded from coverage as they were in appellant’s policy, losses which occur subsequent to completion of the construction are not covered. See: Adkins v. La Terre Development Corp., 387 So.2d 652 (La.App. 1st Cir. 1980); West Bros. of DeRidder, La. v. Morgan Roofing, 376 So.2d 345 (La.App. 3d Cir. 1979); Aetna Casualty & Surety Co. v. Rothman, 331 So.2d 81 (La.App. 1st Cir. 1976).

Appellant relies upon Cooling v. United States Fidelity and Guaranty Co., 269 So.2d 294, writ denied 272 So.2d 373 (La.1973) and Templet v. Goodyear Tire & Rubber Co., Inc., 341 So.2d 1248 (La.App. 1st Cir. 1976), to support his contention that a motion for summary judgment should not have been granted for the reason that the exclusions in the policy are inapplicable to the cause of action asserted by plaintiffs which is partially based upon an allegation that Sander-son failed to warn plaintiffs of the dangerous defect in the design and construction of the fireplace due to its proximity to the wooden floor joist.

The trial court properly rejected appellant’s contention because neither of the cases relied upon by him involved defective construction of the product causing the loss, but rather each case involved a failure to warn of a dangerous use of a properly constructed product.

In Templet, supra, wherein the court found that the failure to warn of the danger of installing a tire from the wrong side of a rim did not fall within the exclusionary language of completed operations, the court specifically recognized that there was no defect in the manufacture of the product.

In Cooling, supra, which involved a failure to warn of the need for safety devices on an engine sold by the insured, the court stated:

“We find as did the trial court, that the alleged negligence under the peculiar facts of this case wherein there is neither a defective product sold nor faulty workmanship involved, is of a nature other than either sale or service as characterized by defendant. It is rather in the nature of a general risk of doing business which is the sort of risk which motivated Cooling to buy comprehensive liability insurance.”

The exclusionary clauses here involved were properly interpreted in Oceanonics, Inc. v. Petroleum Distributing Company, 280 So.2d 874 (La.App.3d Cir. 1973), affirmed 292 So.2d 190 (La.1974); and Mut v. Newark Insurance Company, 289 So.2d 237 (La.App. 1st Cir. 1973), writ denied 290 So.2d 910 and 912 (La.1974), both of which hold that a loss such as that presented in this case would be included in the completed operations definition and would be excluded from coverage. In Mut and Oeean-onics, the court specifically held that the failure to warn of defective workmanship is included within the completed operations exclusion. In Oeeanonics, where a boom collapsed three months after completion of faulty welding work on the boom, the court said:

“We believe that the exclusion of completed operations hazard from the general liability coverage provision in the All-Star policy, had the effect of excluding from coverage the claim asserted against Taylor’s based on allegations that its employee had failed to warn Pedco of the defective weld and of the inability of the crane to lift its rated capacity.”

In Mut, a wall collapsed after completion of faulty construction. The court approved the holding in Oeeanonics as follows:

“.. . In effect Oeeanonics held that failure to warn of defective workmanship falls within the ambit of completed operations hazard where damage from such failure results after the work is completed. We agree .... ”

Here, the property damage which was sustained after completion of the work and which allegedly arose out of the brick mason’s faulty design and workmanship and failure to warn of such falls squarely within the definition of the exclusionary completed operations hazard clause, and coverage is excluded.

Appellant also argues that summary judgment was not proper because there are disputed issues of fact as to whether the general contractor or the brick mason did certain parts of the work relative to the fireplace construction. These disputed issues of fact may have a bearing on the contractor’s and subcontractor’s liability to plaintiffs or their relationship to each other, but have no bearing on the issue of insurance coverage by the subcontractor’s insurer.

The summary judgment is affirmed at the cost of appellant, Roger Sanderson.

Affirmed.


text:
    INTERNATIONAL INSURANCE COMPANY, Plaintiff-Appellant, v. Charles D. MASUR and Reliance Insurance Company, Defendants-Appellees.
    No. 14647.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.

      Davenport, Files, Kelly & Marsh by William G. Kelly, Jr., Monroe, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by J. Michael Hart, Monroe, for defendan1>appellee, Charles Masur.
    Brittain & Williams by Joseph Payne Williams, Natchitoches, for defendant-ap-pellee, Reliance Ins. Co.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this declaratory judgment action under LRS 22:1406 D(l), defendant, the uninsured motorist insurer, appeals a judgment decreeing that uninsured motorist coverage is $750,000 rather than $25,000 which is the amount the insurer contends was selected by the named insured in lieu of the statutorily provided amount equal to the liability limits of the policy ($750,000).

Section 1406 D(l)(a) requires that uninsured motorist coverage in an automobile liability insurance policy shall be not less than the limits of bodily injury liability provided by the policy unless a named insured rejects in writing the coverage or selects lower [uninsured motorist] limits. This subsection also provides that any document signed by the named insured which initially rejects UM coverage or selects lower limits shall be legally effective whether or not that document is physically attached to the policy.

The lower court held that the selection of lower UM coverage had to be both in writing and signed by the named insured, notwithstanding a finding by the lower court that the insured selected and intended, and the policy, as written and delivered before the accident here in question, provided, that the UM coverage be lower limits of $25,000 rather than the $750,000 bodily injury liability limits. We affirm.

The policy in question was effective for the one year period beginning October 1, 1978. The named insured is Monroe Scrap Materials, Inc., which, in earlier policy periods with other liability insurers, had selected $750,000 liability coverage and $25,000 UM coverage.

Before October 1, 1978, the corporation asked the Seymour Insurance Agency to review its insurance policies and make proposals to provide insurance coverage for Monroe Scrap.

Seymour discussed the matter with Meyer Weldman, majority stockholder and chief executive of the corporation, with Charles Masur, a minority stockholder, an officer of the corporation and manager of its scrap operation, and with Meyer Weldman’s secretary of 35 years, Mrs. Holden, who was also office manager of the corporation. Charles Masur, Meyer Weldman’s son-in-law, who was seriously injured in an automobile accident about three months after the policy was written, is a claimant-defendant in this action.

Seymour understood that Monroe Scrap desired the same liability insurance coverages it had before, including the $25,000 UM coverage and $750,000 liability coverage. Masur gave Seymour copies of prior policies. Masur also gave Seymour a copy of a current proposal by a competing insurance company (Liberty Mutual) showing the same proposed coverages of $750,000 liability and $25,000 UMC. The Seymour proposal contained the same limits. It was also shown that Masur himself signed a written selection of $25,000 UM coverage for Monroe Scrap in the policy written by another agency and another insurer for the preceding policy periods beginning October 1, 1976. Masur also authorized Seymour to obtain experience rating data on Monroe Scrap from the Louisiana Insurance Rating Commission in a letter to the commission dated August 29, 1978.

The Seymour proposal of September 27, 1978, to Monroe Scrap is detailed and compares its premiums with the Liberty Mutual premiums for workers’ compensation coverage, comprehensive general liability, and comprehensive automobile liability. The Seymour proposal on Monroe Scrap’s desired coverages in the comprehensive automobile liability policy reads as follows:

“COMPREHENSIVE AUTOMOBILE LIABILITY
“Comprehensive Auto Liability: including Owned, Non-Owned & Hired Automobiles ‘$750,000 Single Limit Liability 2,000 Medical Payments 25,000 Uninsured Motorists
“Physical Damage Coverages: “Based on Expiring Auto Policy Schedule as we [do] not have an updated Fleet Schedule. To be adjusted per insured’s requirements.”

The discussion with Seymour by Monroe Scrap executives led Seymour to understand that Monroe Scrap desired the same liability and UM coverages it had in prior years.

Seymour’s proposal was verbally accepted by Monroe Scrap, and in letters of September 29, 1978, Monroe Scrap informed both the Southeastern Compensation Rating Bureau and the Louisiana Insurance Rating •Commission to recognize Seymour as agent of record for Monroe Scrap on all insurance matters. A temporary insurance binder that was given to Monroe Scrap by Seymour about September 28, 1978, effective October 1, 1978, and the policy that was delivered by Seymour to Monroe Scrap about October 17, 1978, each expressly provided the $750,000 automobile liability limits and the $25,000 UM limits.

Before the policy was delivered to Monroe Scrap, the insurer directed Seymour on October 12, 1978, to obtain the signature of Monroe Scrap on the UM selection form which accompanied the policy. Through inadvertence, the UM selection form was returned to Seymour unsigned. On December 15, 1978, Mr. Seymour was again reminded of these events by his commercial accounts manager. On January 8, 1979, Seymour’s manager mailed, among other things, a UM selection form to Mrs. Holden at Monroe Scrap with this instruction:

“Also, I am attaching ‘Uninsured Motorists Protection Option Selection Form’ which I would appreciate your getting signed by Mr. Weldman and returning to my attention ...”

On January 9, 1978, at Weldman’s instruction, Mrs. Holden signed Mr. Weld-man’s name to the UM selection form on behalf of the corporation, and returned the form to Seymour. Mrs. Holden testified that it was an oversight that the form had not been signed when the policy was delivered.

On January 6, 1979, Masur sustained bodily injury in an automobile accident and made claim for $750,000 under the UM coverage against the insurer of Monroe Scrap, who then brought this action for a declaratory judgment. This action, filed earlier in 1980, was tried in December 1980. Meyer Weldman died before trial.

THE LAW

Much has been written about UM coverage by the courts, the legislature, and others since its inception in Louisiana by Act 187 of 1962. See generally § 1406 D(l) as annotated, LSA-LRS Title 22, and Shepherd’s citations. Dozens of amendments and reenactments and scores of cases have considered problems of UM coverage.

UM coverage first became statutorily mandated under Act 187 of 1962, but this Act provided that the statutory UM coverage was not applicable where the insured “shall reject the coverage.” To this rejection provision, the legislature added the selection disjunctive by Act 154 of 1974. This Act provided that the statutory UM coverage would not be applicable where the insured “shall reject the coverage or selects lower limits.”

By Act 438 of 1977 the legislature inserted in this provision before the disjunctive or, the modifier in writing, so that the provision now reads that the statutory UM coverage shall not apply where the insured “shall reject in writing the coverage or selects lower limits.”

Section 1406 D(l)(b) was added to the statute by Act 137 of 1972 to allow an insured who had selected lower than statutory limits of UM coverage to increase that coverage in his policy at his written request. After Act 623 of 1977 an insured may require his insurer to increase UM coverage in his policy to any amount the insured requests in writing.

LRS 22:628 originally superimposed on UM coverage the general rule that no agreement modifying coverage shall be valid unless the agreement is in writing and is made a part of the policy by physical attachment. Act 438 of 1977 adopted a special rule for UM coverage by providing that any document signed by the insured that initially rejects UM coverage or selects lower limits shall be conclusively presumed to be a part of the policy, irrespective of whether physically attached to the policy. This part of Act 438 of 1977 was apparently designed to overcome the effect of the question of § 628 in cases such as LeBoyd v. Louisiana Transit Co., 375 So.2d 749 (La.App. 4th Cir. 1979). There the policy and injury in question arose in 1974-75. The insured had rejected UM coverage in writing in an earlier policy but this written rejection was not made a part of the policy then in effect. The insured had verbally rejected UM coverage under the 1974—75 policy. The court applied § 628 and found statutory UM coverage. See Turner v. Allstate Ins. Co., 368 So.2d 797 (La.App.2d Cir. 1979).

The pertinent provisions of § 1406 D(l)(a) now read as follows (paragraphed for clarity):

“. . . the [statutory UM] coverage . . . shall not be applicable where any insured . . . shall reject in writing the coverage or selects lower limits.
“Such coverage need not be provided in ... a renewal or substitute policy where the . . . insured has rejected the coverage or selected lower limits in ... a policy previously issued to him by the same insurer.
“Any document signed by the ... insured . . . which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy . . . when issued or delivered, irrespective oft, whether physically attached thereto.”

In Page v. American Motorist Ins. Co., Ltd., 381 So.2d 889 (La.App. 2d Cir. 1980), we held that the last quoted provision by Act 438 of 1977 amending 1406 D(l)(a), with reference to a document signed by the insured rejecting UM coverage and not attached to the policy, was remedial legislation and was to be applied retroactively. In other cases we noted the strong legislative policy of statutory UM coverage. Walker v. Coleman, 367 So.2d 395 (La.App.2d Cir. 1979), writ denied; Turner, supra.

In A. I. U. Ins. Co. v. Roberts, 395 So.2d 375 (La.App. 1st Cir. 1981), before Act 438 of 1977, the plaintiff verbally selected UM limits lower than statutorily provided and then claimed that she should be entitled to the larger statutory limits because she did not consent to the lower limits in writing. The court held that her verbal selection of lower limits was legally effective and that the 1977 amendment requiring the selection of lower limits to be in writing would not be retroactively applied. Writs were granted by the Louisiana Supreme Court on May 31, 1981, and that case is yet pending there. A. I. U. Ins. Co. v. Roberts, 399 So.2d 620 (La.1981).

While A. I. U. Insurance concerned only the application of § 1406 D(l)(a) before the 1977 amendment, that opinion observed that after the amendment, the selection of lower limits of UM coverage would be required to be in writing to be effective. Until this observation, the courts had dealt with only the question of rejection of the statutory UM coverage. Courts had consistently held that the statutory UM coverage must be read into the policy and that no agreement modifying coverage would be effective unless that agreement was in writing and made a part of the policy. Section 628 was held to have made this requirement before the 1977 amendment added the in writing modifier to the word reject. § 1406 D(l)(a). These holdings were predictable because of the general rule of § 628 that no agreement modifying the coverage of any contract of insurance shall be valid unless in writing and made a part of the policy and the determination that §’ 1406 D(l)(a) mandates the inclusion of UM coverage in an amount equal to the bodily liability coverage in every policy of automobile liability insurance issued in Louisiana. See LeBoyd, Walker, cited supra.

Certainly there is a strong indication that the insured selected lower UM limits if the policy itself contains the lower limits. It is also logical, and supportive of the apparent legislative distinction between shall reject in writing the coverage and select [not in writing7\ lower limits, that evidence of selection of lower UM limits extraneous to the policy should be admitted because this evidence would not be modifying the coverage of the policy. On the one hand, the policy is silent, as in cases of rejection of the coverage, while on the other, the policy contains UM coverage but in lower than statutory limits.

Notwithstanding the legislature’s failure to insert the modifier in writing where it would apply to both the selection and the rejection of the statutory UM coverage, the above argument, however tenable, must fall when the many cases and amendments to § 1406 D(l) are considered. First there is the general pronouncement and strong policy of the statute that no automobile liability insurance policy shall be issued in this state unless UM coverage is provided in not less than the limits of bodily injury liability. § 1406 D(l)(a). Secondly, there are the case pronouncements that the UM coverage is made a part of the policy by the statute and that the coverage is to be determined by the policy and the statute. LeBoyd, Walker, supra. This coverage before the passage of Act 438 of 1977, could not be modified except as § 628 provided. After Act 438 of 1977, the UM coverage can be modified only as provided by that act, the pertinent part of which we emphasize:

“Any document signed by the ... insured . . . which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy . . . when issued . . . irrespective of whether physically attached thereto.” § 1406 D(l)(a), in part.

Thus we conclude that if the statutory UM coverage is to be modified (anything less than the bodily injury limits of the automobile liability policy, whether to no coverage or to lower limits), § 1406 D(l)(a) as amended, requires that the modification be shown by a document signed by the insured, whether that document is or is not attached to the policy.

Notwithstanding the showing here that this insured desired and selected the lower limits of UM coverage than statutorily provided, there was no showing that the insured signed a document modifying the statutory limits before the date of the bodily injury asserted as the basis for claiming the UM coverage. That part of the policy which provides the lower limits of course can be considered as a document, but that document was not signed by the insured until after the claimant-defendant’s cause of action arose.

The legislature has declared that liability policies are executed for the benefit of the injured persons to whom the insured may be liable. LRS 22:655. The driver of an uninsured or underinsured automobile is fictitiously an insured under the UM coverage. Hartzog v. Eubanks, 200 So.2d 303 (La.App. 1st Cir. 1967), writ denied. Proper modification of statutory UM coverage shall be applied prospectively and not retroactively to the detriment of third party beneficiaries of the coverage whose causes of action arise before the fact of the modification. See Manchester Insurance & Indemnity Company v. Jones, 317 So.2d 786 (Fla.App.3d Dist. 1975).

At appellant’s cost, judgment is AFFIRMED.

      . Pertinent provisions of LRS 22:1406 D(l) read as follow:
      “D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      “(I)(a) 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 with respect to any motor vehicle registered or principally garaged 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, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. 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. Any document signed, by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.
      “(b) Any insurer delivering or issuing an automobile liability insurance policy referred to herein shall also permit the insured, at his written request, to increase the coverage applicable to uninsured motor vehicles provided for herein to any amount.”

      . The admissibility of the selection form signed by Masur for the corporation was objected to generally on grounds of irrelevancy. We consider that the selection form was admissible and was relevant to corroborate testimony that Monroe Scrap desired and requested the same $25,000 UM limits in the 1978-79 policy period as had been provided by another insurer in preceding policy periods.

      . This correspondence reads:
      [Interoffice Memo to Ed Seymour, Jr.]
      “Client-Monroe Scrap Materials, Inc.
      “Subject-Several Items to be handled
      “We had left an ‘A-Rate’ form to be signed by insured for the rates on Contractual Liability with Continental Can and they sent it back to us with letter saying they do not do business with Con’l Can but if they resumed they would advise.
      “With that letter they also attached the UM Selection form but they had not signed it. They must have thought it went with the Contractual A-Rate consent form. Please get this signed and return to me. I wrote C&F back to delete the wording ‘Contracts with Continental Can [C]ompany’ and to reissue the form on If Any basis and we would have the insured sign the corrected form.
      “See letter from C&F attached as concerns inspection at Shreveport Location. Advise “Also attached is endorsement adding 30 day notice to Int’l Paper in Bastrop as requested and copy of the Certificate of Insurance I sent to IP with a copy of the endorsement for their files.
      “Thanks,
      “Nina
      “P. S. Give Payroll Report Copy to Mrs. Holden.”
      “January 8, 1979
      “Mrs. Dorothy Holden
      “Monroe Scrap Materials, Inc.
      “P. O. Box 2821
      “Monroe, LA 71207
      “Dear Mrs. Holden:
      “Enclosed please find Payroll Report and Billing which should coincide with the October Payroll Report you sent in for Monroe operations. I have explained to the company that these figures represented October only in lieu of the requested October and November payrolls and I added the November payroll information on the copy of the Shreveport Payroll Report and I attach copy of this report for your file. In the future, I have requested the company to issue separate reports for Monroe and Shreveport and to send them to me directly and I will forward to your attention. The completed reports should in turn be forwarded back to me for processing on to the company. If you have any questions, please let me know. It may take a little time to get the company to handle this as we asked.
      “Also, I am attaching ‘Uninsured Motorists Protection Option Selection Form’ which I would appreciate your getting signed by Mr. Weldman and returning to my attention. Again, if you have any questions, please give me a call at the above number.
      “The endorsement and certificate in favor of International Paper Company is for your file. We have forwarded copy of this information to IP in Bastrop.
      * * * * * *
      “Sincerely yours,
      “SEYMOUR INSURANCE AGENCY, INC.
      “Nina G. Cassidy, CPIW
      “Commercial Accounts Manager”
      “DATE 10-12-78
      “Re: 130 055 6862
      “Monroe Scrap Material
      “From Seymour Insurance Agency P.O. Box 5050 Monroe, LA
      “Please have the attached ‘UM Option’ signed and return the underwriting copy to our office.
      “Thank you,
      “Sue Larson
      “REPLY
      “Sue — see attached — sorry for delay
      “Reply date 1/17/79
      “Signature Nina Cassidy”


author: MARVIN, Judge. HALL, Judge,

text:
    Billy G. PAIGE, Plaintiff-Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA, et al., Defendants-Appellees.
    No. 14-649.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.
    En Banc. Rehearing Denied Nov. 6, 1981.
    Nelson, Hammons & Johnson, by Brian D. Smith, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendants-appellees.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

Plaintiff appeals, seeking to increase a jury award from $500 to $7,500 for personal injury and medical expense arising out of a motor vehicle accident. We amend to increase and affirm.

Defendant admitted liability and that plaintiff incurred $200 in property damages as plaintiff’s deductible of his automobile collision insurance. It was shown that plaintiff’s vehicle sustained $1,400 in damages.

Plaintiff first sought medical treatment on May 5, 1979, about two weeks after the accident, for pain in his neck and in his right long finger. Plaintiff’s orthopedist diagnosed plaintiff’s injuries as a mild cervical sprain and a sprained finger and prescribed a cervical collar, muscle relaxants, and other medication. Plaintiff saw the orthopedist four additional times over the next seven months and continued to complain of pain and discomfort, headaches, dizziness, and stiffness in his neck through his last visit to the orthopedist on December 10, 1979. Plaintiff’s finger was swollen for at least two months. The orthopedist testified as to plaintiff’s complaints and that plaintiff’s symptoms caused him some disability during the course of treatment. Plaintiff’s proven medical expenditures totaled $188.91.

It was also shown that plaintiff was permanently disabled within the meaning of the worker’s compensation law and that he was being paid $65 weekly benefits for this disability which occurred in 1973. Before and since the 1979 accident, however, it was shown that plaintiff has worked continuously in his own timber business, driving a truck and other equipment.

The defendant insurer’s claims adjuster testified that plaintiff told her in a telephone conversation on May 4, 1979, the day before plaintiff first saw his orthopedist, that he was dissatisfied with the negotiations for the repair of his vehicle and that if the insurer did not promptly and satisfactorily attend to this property damage claim, plaintiff was going to assert a personal injury claim. The claims adjuster made a sketchy written memorandum of this conversation which somewhat corroborates her testimony, mentioning a “whiplash injury” in connection with the mention of plaintiff. The memo does not expressly mention a “threat of injury”.

The stipulation of liability on defendant’s part was connected with plaintiff’s stipulation that his damages for personal injury should not exceed the $10,000 liability policy limits. Defendant, admitting liability in the closing argument, also suggested to the jury that

“. .. $1500 is more than adequate for the damages that [plaintiff] has suffered, if any . . . and then as I calculate the figures . . . read off to you, it was something like $188.91 . . . five visits to the doctor, $160 worth, ... an $11 cervical collar and $17 in prescriptions.”

We do not consider that defendant’s figure of $1,500 was suggested as being minimally adequate or binding upon defendant, but the suggestion strongly indicates that defendant agreed that the jury should award some minimal general damages and $188.91 for the special damages of medical expense. We reach this conclusion also because we consider that it strains credulity to reach the obvious conclusion that the jury decided that plaintiff’s general damage for the personal injuries was the odd figure of $311.09.

Following the directives of the Supreme Court from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), and Beck v. Stevens, 373 So.2d 498 (La.1979), we deem our responsibility on this appeal is “. . . to determine whether or not this trier of fact has abused its discretion in the award to this particular plaintiff under the facts and circumstances peculiar to this case.” Reck, 373 So.2d at p. 500.

When the overall circumstances of this plaintiff are considered, we find the jury could have minimized plaintiff’s personal injury damage because they believed, and weighed heavily against plaintiff, the testimony about plaintiff continuing to work while being treated for his complaints and about the telephone conversation recited by the insurer’s claims adjuster. We find, then, that the jury did not abuse its much discretion in assessing plaintiff’s personal injury damage at the minimal figure of $500. Coco, supra.

Notwithstanding the jury’s much discretion, we must also conclude under the overall circumstances that the jury should have awarded general damages for the personal injuries and the proved medical specials of $188.91, in addition to the $200 property damage special which is not complained of on appeal.

Accordingly, and at defendant-appellee’s cost, the judgment is amended to increase the amount awarded for personal injury from $500 to $688.91, and, as amended, is AFFIRMED.

HALL, J., concurs in part and dissents in part, with written reasons.

HALL, Judge,

concurring in part and dissenting in part.

I concur in the majority opinion insofar as it modifies the judgment of the district court to increase the $500 award by $188.91, the amount of plaintiff’s medical expenses. I dissent in part because I believe the award should be increased to at least $1,500, plus medical expenses.

The only way the jury’s award of $500, and the majority’s minimal increase can be justified is if there is substantial evidence to support a finding that plaintiff fabricated the entire whiplash injury, and that he suffered no injury whatsoever to his neck. The only evidence to that effect was the adjuster’s recollection of a telephone conversation in which, she testified, plaintiff said he was going to “get an injury and an attorney.” Her testimony about the conversation is somewhat inconsistent with her notes made at the time which reflect that plaintiff mentioned a whiplash injury, not a threat of injury. This evidence is hardly substantial and amounts to little more than a hint of fabrication.

On the other hand, there is substantial evidence supporting a finding that plaintiff suffered a mild whiplash injury. He so testified, corroborated by his wife. The orthopedic specialist who treated him testified he diagnosed plaintiff’s injury as a mild neck sprain, with classic symptoms, and treated plaintiff for it for several months.

The substantial preponderance of the evidence establishes that plaintiff sustained a mild whiplash injury. The minimum award within the range of the jury’s discretion would be, in my judgment, $1,500 plus medical expenses. To the extent that the majority decision fails to increase the award to that amount, I respectfully dissent.

      . The orthopedist, on direct examination, described plaintiffs complaints on plaintiffs initial visit: “... he couldn’t ... move his neck quite all the way ... without saying that it bothered him some ... and he had some tenderness ... at the base of his neck ... and I couldn’t find any real spasm ... or any objective signs of the problem, there was no swelling or warmth ... in the muscles or any objective evidence other than the complaints of pain with motion of the neck and the complaint of tenderness with pushing on the neck.... [Hje had a normal looking neck as far as X-ray was concerned ... I thought this was of a mild nature . . . just your average neck sprain. ...”
      About the finger, the orthopedist said:
      “.. . He could move his knuckle well ... and it was just a little tender ... I just thought it was sore and would get better in a week or so ...” Plaintiffs finger was last mentioned by the orthopedist in a report of his examination of the plaintiff on June 14, which was about two months after the accident.


text:
    Thomas A. HERRINGTON, Plaintiff-Appellee, v. FRANKLIN PARISH POLICE JURY, Defendant-Appellant. Jessie O’STEEN, Plaintiff-Appellee, v. FRANKLIN PARISH POLICE JURY, Defendant-Appellant.
    Nos. 14659, 14660.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.
    Glynn D. Roberts, Lowen B. Loftin, Ray-ville, for defendant-appellant.
    Samuel T. Singer, Winnsboro, for plaintiff-appellee, Thomas A. Herrington.
    Johnny R. Boothe, Winnsboro, for plaintiff-appellee, Jessie O’Steen.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In these consolidated cases, each judgment awarded damages respectively to the plaintiff-owner and to the plaintiff-driver of a soybean combine that overturned when a bridge in the parish road system collapsed. The defendant police jury appeals, raising the one assignment that the trial court erred in finding that the jury had actual or constructive notice of the defective timbers in the bridge and failed to correct the defects within a reasonable time.

Expert and lay testimony, as well as photographs, provided substantial evidence that defective timbers both existed for a long time before the collapse and that they caused the collapse which resulted in the damages sued for. The parish road superintendent of about two years, whose duties included the inspection of bridges in the parish road system, testified that he had never inspected this particular bridge. Additionally it was shown that within the few weeks before the accident the police jury dredged the canal under the bridge and traversed the bridge with its equipment and failed to notice the defective supporting timbers of the bridge.

We affirm each judgment, finding that they are not only supported on the negligence theory by substantial evidence, but on the basis of the theory of strict liability which is applied to a public body charged with the care or custody of a defective thing that poses an unreasonable risk of harm to the public using that thing.

For reasons assigned by the trial court, as here supplemented and supported, and at appellant’s cost, judgment is

AFFIRMED.

      . Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975).

      . Shipp v. City of Alexandria, 395 So.2d 727 (La.1981), recently summarized the law imposing strict liability. A plaintiff must prove that the thing which caused the damage was in the care of the defendant, that the thing was defective in that it posed an unreasonable risk of injury to another, and that the injury was caused by the defect. Once these elements are proved, the custodian can escape strict liability only by showing that the harm was caused by the fault of the victim, the fault of a third party, or by an irresistible force. Shipp, at p. 729. See also Smith v. Town of Logansport, 395 So.2d 888 (La.App. 2d Cir. 1981). Once the defect is shown to have existed for a long period of time, as in Pickens, cited in footnote 1, the plaintiff may likewise recover under the theory of negligence.
      A bridge with cracked supporting timbers, even on a farm to market road, poses an unreasonable risk of a harm to the motoring public that uses the farm to market road. All of the elements which warrant a finding of strict liability are found here.

      . In the absence of an answer to the appeal, we do not consider appellee’s argument to increase damages. Carroll v. Twin City Pontiac Used Cars, Inc., 397 So.2d 42 (La.App.2d Cir. 1981).