author: JASPER E. JONES, Judge.

text:
    KEL-KAN INVESTMENT CORPORATION, et al., Plaintiffs-Appellees, v. VILLAGE OF GREENWOOD, et al., Defendants-Appellants.
    No. 14908.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.
    Writ Granted Oct. 8, 1982.

      Kennedy, Goodman & Donovan by Rellis P. Godfrey, Shreveport, for plaintiffs-appel-lees.
    James E. Bookter, Bossier City, for defendants-appellants Village of Greenwood, et al.
    Adams, Fant & Wyche by Michael H. Warnwright, Shreveport, for defendants-ap-pellee Bossier Bank & Trust.
    Before HALL, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

This is an action to deannex approximately 32 acres from the Village of Greenwood. The plaintiffs are Kelly’s Truck Terminal, Inc., the Marshan Kelly Hayes Trust, the Devon Albert Kelly, Jr. Trust and Mrs. Mary Barkley Kelly. The plaintiffs are the owners of the following described property, which lies within the corporate limits of the Village of Greenwood, Louisiana:

A.Tract No. 1
All that part of Lot 14 of the J. M. Dunn Estate Partition, as per plat recorded in C.B. 250, page 104, of the Conveyance Records of Caddo Parish, Louisiana, lying south of the south right of way line of the Texas and Pacific Railroad and north of the north line of Interstate Highway 20, located in the SE¼ of Section 24, Township 17 North, Range 16 West, Cad-do Parish, Louisiana, LESS AND EXCEPT that certain tract containing 1.2101 acres conveyed to Kelly’s Truck Terminal, Inc. by deed dated March 11, 1976, recorded in C.B. 1535, page 184, under Registry No. 678357 of the Records of Caddo Parish, Louisiana, and containing in said Tract No. 1 14.83 acres, more or less. OWNER: Kelly’s Truck Terminal, Inc.
B. Tract No. 2
That certain tract or parcel of land containing 1.2101 acres, more or less, in the SE¼ of Section 24, Township 17 North, Range 16 West, Caddo Parish, Louisiana, and being more particularly described as follows:
Beginning at the W iron pin set in the north right of way of relocated U. S. Highway No. 80, said point of beginning being North Io 15.3824' East 858.65 feet from the Southeast corner of Section 24, Township 17 North, Range 16 West, and in the East line of Lot No. 14 of the J. M. Dunn Partition as recorded in Book 255, page 368, Deed Records of Caddo Parish, Louisiana. Thence with the North right of way of relocated U. S. Highway No. 80, the following course:
South 82°47.5985' West 141.73 feet
North Io 15.3824' East 371.81 feet;
Thence North 79° 28' East 143.21 feet to a point in the East line of Lot No. 14 of the J. M. Dunn partition;
Thence South 1° 15.3824' West with the East line of Lot 14 of the J. M. Dunn Partition and East line of Section 24, Township 17 North, Range 16 West, 380.-21 feet to the place of beginning, containing 1.2101 acres, more or less.
OWNER: Kelly’s Truck Terminal, Inc.
C. Tract No. 3
That certain tract or parcel of land containing 16.229 acres, more or less, in the SWVi of Section 19, Township 17 North, Range 15 West, Caddo Parish, Louisiana, and being more particularly described as follows:
Beginning at the ½ iron pin set in the north rights of way of relocated U, S. Highway No. 80, said point of beginning being North 1° 15.3824' East 858.65 feet from the Southwest corner of Section 19, Township 17 North, Range 15 West, and in the East line of Lot No. 14 of the J. M. Dunn Partition as recorded in Book 255, page 368, Deed Records of Caddo Parish, Louisiana.
Thence with the north right of way of relocated U. S. Highway No. 80, the following six (6) courses:
(1) North 82°47.5986' East 28.41 feet;
(2) North 80° 51.8985' East 490.20 feet;
(3) North 76° 36.2387' East 205.63 feet;
(4) North 84° 12.7114' East 197.85 feet;
(5) North 53° 48.0243' East 565.23 feet;
(6) North 70° 20.2387' East 158.76 feet to a point in the north right of way of relocated U. S. Highway No. 80, and the south right of way of Texas and Pacific Railroad;
Thence in a northwesterly direction along the arc of a curve to the left with a radius of 5654.58 feet (the chord of which bears North 77°47.333' West 1,530.63 feet) a distance of 1,534.72 feet to a Vz" iron pin in the south right of way of Texas and Pacific Railroad and in the East line of Lot 14 of the J. M. Dunn Partition; thence South 1°15.3824' West with the East line of Lot 14 of the J. M. Dunn Partition and West line of Section 19, Township 17 North, Range 15 West, 860.94 feet to the place of beginning, containing 18.748 acres of land, more or less, LESS AND EXCEPT that certain tract or parcel of land containing 2.519 acres conveyed to Kelly’s Truck Terminal, Inc. by deed dated March 11, 1976, recorded in C.B. 1525, page 184, bearing Registry No. 678357 of the Conveyance Records of Caddo Parish, Louisiana. .
OWNER: Mrs. Devon Albert Kelly, Mar-shan Kelly Hayes Trust and Devon Albert Kelly, Jr. Trust

Hereinafter we will refer to the above described tracts as the “Property”.

The defendants are the Village of Greenwood, its past and present Mayor and its past and present Aldermen. The defendants appeal a judgment deannexing the Property. We amend and affirm.

THE FACTS

The Village of Greenwood is located in Caddo Parish, Louisiana, west of the City of Shreveport. In the early 1970’s it contained an area of approximately 350 acres and a population of about 700.

At that time many owners of property near the Village of Greenwood began to fear that growth of Shreveport would lead to their property being annexed by that city, or at least bring it under control of the Metropolitan Planning Commission. To avoid these possibilities many Greenwood area property owners, including the late D. A. Kelly, then president of Kelly’s Truck Terminal, Inc., petitioned to have their lands, including the Property, annexed by the Village of Greenwood.

In 1972 the Village enacted an ordinance annexing approximately 2250 acres, including the Property. This state of affairs was satisfactory to all concerned until 1974 when the Village imposed the first substantial ad valorem tax in its history. The imposition of the tax caused a general hue and cry throughout the community and led to the election of a new Mayor and Aider-men.

The Property is the site of Kelly’s Truck Stop. This is a large business operation located at the intersection of U. S. Hwy. 80 and Interstate 20. The operation employs approximately 200 people and includes a motel, restaurant, western store, chapel and camping area, as well as truck fueling, washing and repair facilities. The truck stop is located approximately one mile east of the preannexation boundaries of Greenwood.

Neither before nor after the imposition of the tax has the Kelly’s operation received much in the way of municipal services. For a time Kelly’s received water service from a federally financed community water system that did not belong to the Village, but it proved so inadequate that Kelly built its own water system, including wells and a storage tank.

The Kelly’s operation also received some police protection from the Village. According to plaintiffs’ witnesses the police protection was inadequate and inefficient. Defendants’ witnesses unsurprisingly told a contrary story. The record reflects that the truck stop hired its own security people and arrangements were made for the Caddo Parish Sheriff to respond to calls from the truck stop even after it was annexed. A reading of the trial judge’s reasons for judgment makes it apparent the trial judge concluded that the Village provided the Property with very limited police protection and the evidence fully supports this finding of fact. Kelly’s received no garbage services, street construction or street maintenance or lighting from the Village. The Property has received no sewer service, though there is some evidence that it may be available in the future.

Though it received little in municipal services, the operation paid considerable amounts in taxes to the Village. In 1974 and 1975 the taxes on the Property amounted to 13% and 15% respectively of the total ad valorem taxes collected by the Village.

After the tax was imposed the appellees, in accord with LSA-R.S. 33:176 and R.S. 33:172, petitioned the Village for deanne-xation of the Property. There is no indication in the record that the notice of the filing of the petition was published by the Village as required by R.S. 33:172(B), nor that any hearing was requested or held as authorized by this statute. The Board of Aldermen declined to deannex the Property. Plaintiffs responded by bringing this action on March 23, 1976.

In 1977 the Village of Greenwood in a local option election was voted dry. This caused Kelly’s operation to lose from $50,-000 to $60,000 revenue per year in beer sales. Plaintiffs also contended at trial that the inability to sell beer adversely affected their motel operations. These factors increased plaintiffs’ desire to have the Property deannexed.

In 1979 plaintiffs filed their first supplemental and amending petition and began to press this proceeding. The defendant interposed a peremptory exception of prescription which was sustained by the district judge. Plaintiffs appealed and this court reversed and remanded in Kel-Kan Inv. Corp. v. Village of Greenwood, 393 So.2d 818 (La.App. 2d Cir. 1981).

On remand the case was tried on the merits and the district judge rendered judgment deannexing the Property. Defendants appeal and assert five assignments of error. They contend the trial judge erred in:

(1) considering factors relating to the reasonableness of an ordinance annexing or deannexing property when no ordinance is involved;

(2) considering factors relating to social detriment of the proposed deannexation;

(3) holding their refusal to deannex the Property arbitrary and capricious;

(4) finding that plaintiffs had discharged their burden of proof; and

(5) ordering deannexation of the Property-

The plaintiffs have neither appealed nor answered the appeal, but in their brief they complain of the district judge’s failure to make the judgment retroactive to the filing of the original petition in this action and his failure to cast defendants for all costs of the proceedings. We will not consider those complaints as we may not modify the judgment in plaintiffs’ favor due to their failure to appeal or answer the appeal. LSA-C.C.P. art. 2133; Lake Lefluer v. Evangeline Parish Police Jury, 347 So.2d 875 (La.App. 3d Cir. 1977).

We now address the assignments of error.

ASSIGNMENTS # 1 and # 2

Through Assignment # 1 defendants contend that the district judge erred in considering factors relating to the reasonableness of an ordinance annexing or dean-nexing which converted this action into an attack on the 1972 annexation ordinance which is barred by the prescriptive period established by LSA-R.S. 33:175.

Through Assignment # 2 appellants attack the trial judge’s consideration of the factors relating to social detriment from the proposed deannexation contending that such consideration caused him to lose sight of the ultimate question in this case. The ultimate issue in this case is whether or not the Board of Aldermen was arbitrary, capricious and unreasonable in refusing to deannex the Property.

Because Assignments # 1 and # 2 concern the factors to be considered in deanne-xation cases, we shall consider them together.

As there are no Louisiana decisions on deannexation, other than our earlier review of this case on the prescription issue, we have reviewed cases from other jurisdictions and find they consider many factors in reviewing actions to deannex or detach property from municipalities. The New Jersey courts consider the economic or social injury that would be caused by the proposed deannexation. Ryan v. Mayor & Council of Borough of Demarest, 64 N.J. 593, 319 A.2d 442 (1974). Utah and Florida courts consider the amount of municipal improvements and services provided to the area sought to be deannexed. In Re Layton City, 27 Utah 2d 241, 494 P.2d 948 (1972); Johnson v. Town of Suwannee Riv er, 336 So.2d 122 (Fla.App. 1st Dist. 1976). Florida courts have also said that the test in a deannexation case is whether or not the involved land is by distance or other cause virtually and commensurately excluded from the benefits of the municipal organization. Town of Medley v. Seminole Rock Products, Inc., 138 So.2d 534 (Fla.App. 3d Dist. 1962). The South Dakota supreme court has said that the controlling reasons in cases such as this should be civic rather than reasons of revenue. Klosterman v. City of Elkton, 53 S.D. 324, 220 N.W. 910 (1928). Mississippi also views revenue considerations as inappropriate. Wheat v. Town of Poplarville, 149 Miss. 424, 115 So. 559 (1928). Nebraska courts consider several elements in disconnection cases including whether the land is agricultural, whether or not there is a community of interest between the land and the municipality, the municipal benefits, if any, received by the property and the effect on the compactness of the city limits that would result from the deletion. Dugan v. Village of Greeley, 206 Neb. 804, 295 N.W.2d 115 (1980).

Our courts consider factors such as a substantial increase in population, the need for additional area for constructing homes or other establishments, the need for areas to accommodate reasonably anticipated future growth and the extension of municipal services to substantial numbers of residents when determining the reasonableness of an annexation of property. Nix v. Village of Castor, 116 So.2d 99 (La.App. 2d Cir. 1959); Kansas City So. Ry. v. City of Shreveport, 354 So.2d 1362 (La.1978). These are also appropriate considerations in a deannexation proceeding. Pittsburgh-Des Moines Steel Co. v. Incorporated Town, 249 Ia. 1346, 91 N.W.2d 602 (Ia.1958).

The purposes of statutes permitting the deannexation of property is to grant relief to taxpayers in the disconnected area and to permit property not being used for municipal purposes to avoid the burdens of municipal taxation and regulation. In Re City of Palos Heights, 30 Ill.App.2d 336, 174 N.E.2d 574 (1961).

Under our statutory scheme the power to extend or contract municipal limits is a legislative power vested in the municipal governing body subject to judicial review to determine whether that power has been exercised in an arbitrary, capricious or unreasonable way. Kel-Kan, supra. The following factors are particularly relevant to our review of the exercise or failure to exercise the power to contract municipal corporate limits:

(1) the social, cultural and economic nexus between the municipality and the Property in question;

(2) the social or economic detriment to the municipality, other than the loss of tax revenues, which would be caused by the deannexation;

(3) the extent of municipal improvements and services to the area in question;

(4) the distance and accessability of the area in question from the developed and developing areas of the community; and

(5) the presence of the factors outlined by this court in Nix v. Village of Castor, supra.

Among the factors which are irrelevant to the review of such cases are:

(1) the loss of tax revenue by the municipality which would result from the deanne-xation, In Re Peterson, 87 Utah 144, 48 P.2d 468 (1935); Wheat; Klosterman; supra, and

(2) whether or not the owner[s] of the Property in question originally requested the annexation. In Re Peterson, supra.

Neither of the above lists of factors is exclusive and the peculiar facts of each case may vary the weight which should be given to any individual factor.

The burden is on the party attacking the validity of the governing body’s action, whether it was to exercise or refuse to exercise its power to contract the municipal limits to prove that action arbitrary and capricious. Hunter v. City of Shreveport, 216 So.2d 140 (La.App. 2d Cir. 1968), writ refused 253 La. 323, 217 So.2d 414 (1968).

The complained of factors were properly considered by the trial judge and did not transform the proceeding into a challenge of the 1972 annexation ordinance. The trial judge’s reasons for judgment make it clear that he was fully cognizant of the ultimate issue here. These assignments of error are without merit.

ASSIGNMENTS # 3 and # 4

Through these assignments of error appellants contend that the district judge erred in finding that plaintiffs had carried their burden of proof and in holding the refusal to deannex arbitrary and capricious. Though these assignments are phrased differently they both actually address the finding that the refusal to deannex was arbitrary and capricious. Therefore, we shall consider them together.

Whether a refusal to deannex is arbitrary and capricious is a question of fact on which we may not disturb the trial judge’s finding in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); cf. Nix, supra.

In his reasons the trial judge noted that the board refused to deannex for the reason that it feared such action would spawn a wave of additional requests for deannexation which, if also granted, would be detrimental to Greenwood. The trial judge’s finding is strongly supported by the evidence.

Each request for deannexation must be decided on its own merits. The possibility that granting the initial request for deannexation may spur other requests is not a sufficient reason to withhold consent. West Point Island Civic Ass’n v. Township Committee, 54 N.J. 339, 255 A.2d 237 (1969). The Board’s refusal on this basis was correctly found by the trial judge to have been unreasonable.

An examination of the factors previously mentioned shows that the Property and the operation conducted there have no social or cultural influence on the community. Further, there is surprisingly little economic connexity. The operation, though it has some local patronage, caters to and is patronized primarily by those involved in the interstate trucking industry.

At trial plaintiffs introduced evidence to show that there would be no detriment from the deannexation of the Property. Indeed it was indicated that the Village might benefit from increased employment because of expansion at the facility which would be made possible by increased business due to beer sales.

The evidence reflects, and the trial judge found, that there was little in the way of municipal improvements and services to the Property. The record also shows that the Property is over a mile from the developed areas of the community and is separated from most of it by I-20. Finally, the evidence reveals none of the factors discussed in the case of Nix, supra, as justification for retaining the Property in the municipality.

The record reflects that the Board’s refusal to grant the deannexation was not based on its effects upon the Village but on the possibility of detriment due to granting future deannexation requests which it would have been in the Board’s power to deny. On the record we cannot say that the trial judge was clearly wrong in finding the refusal to deannex arbitrary and capricious.

ASSIGNMENT # 5

Through this assignment appellants contend the district judge erred in ordering the deannexation of the Property. This assignment is purely conclusory and appellants make no argument in support of it. However, we take this opportunity to examine the form of the judgment.

The trial judge rendered judgment “. . . deannexing from the Village of Greenwood, Louisiana, the Property ...”

As previously noted, the power to extend or contract municipal corporate limits is a legislative function of the governing body of the municipality. However, the exercise of this legislative function of denial of the petition to deannex is subject to judicial review for the purpose of determining if it was an unreasonable action. Where the action denying the deannexation is found to be arbitrary and unreasonable the court may order the municipality to enact the ordinance of deannexation. Kel-Kan; West Point; supra.

Here there are preliminary requirements contained in the statutes authorizing deannexation that must be complied with before the Village can enact the ordinance to deannex. Before the Village can be required to enact an ordinance of deannexation, the provisions of LSA-R.S. 33:172(B) must be complied with.

The statute requires publication of notice of the filing of the petition and provides that anyone desiring to be heard on the ordinance may apply for a hearing which must be held before the municipality adopts the ordinance.- Should any person timely apply for a hearing we direct the municipal authorities to conduct such hearing and consider the evidence therein adduced in light of the views expressed hereinabove.

Should there be no timely application for a hearing on the plaintiffs’ deannexation petition, the defendants shall enact the deannexation ordinance.

The judgment appealed should be modified to require the Village to publish a notice of the petition and in the event no hearing is requested to enact an ordinance deannexing the Property in accord with LSA-R.S. 33:172 and 33:176. The judgment should be further modified to require the hearing, in the event it is requested, and to instruct that evidence adduced at that hearipg be considered in making the deannexation determination.

For the foregoing reasons the second paragraph of the judgment is recast as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment for petitioners, Kelly’s Truck Terminal, Inc., The Marshan Kelly Hayes Trust, the Devon Albert Kelly, Jr. Trust and Mrs. Mary Barkley Kelly and against defendants, The Village of Greenwood, Louisiana, Jasper E. Tilley, William Peters, J. D. Roan, James Gobert, Leroy Hillman, Albert Reed Bonds, Thomas F. Philyaw, and Raymond Hollis Bounds, ordering defendants to publish notice of the petition for deannexation as required by law, and if no hearing is then requested to enact and ordinance contracting the municipal corporate limits of and deannexing from the Village of Greenwood the Property in the name of Petitioners described as follows:

A. Tract No. 1
All that part of Lot 14 of the J. M. Dunn Estate Partition, as per plat recorded in C.B. 250, page 104, of the Conveyance Records of Caddo Parish, Louisiana, lying south of the south right of way line of the Texas and Pacific Railroad and north of the north line of Interstate Highway 20, located in the SE¼ of Section 24, Township 17 North, Range 16 West, Cad-do Parish, Louisiana, LESS AND EXCEPT that certain tract containing 1.2101 acres conveyed to Kelly’s Truck Terminal, Inc. by deed dated March 11, 1976, recorded in C.B. 1535, page 184, under Registry No. 678357 of the Records of Caddo Parish, Louisiana, and containing in said Tract No. 1 14.83 acres, more or less. OWNER: Kelly’s Truck Terminal, Inc.
B. Tract No. 2
That certain tract or parcel of land containing 1.2101 acres, more or less, in the SE¼ of Section 24, Township 17 North, Range 16 West, Caddo Parish, Louisiana, and being more particularly described as follows:
Beginning at the ½ iron pin set in the north right of way of relocated U. S. Highway No. 80, said point of beginning being North Io 15.3824' East 858.65 feet from the Southeast corner of Section 24, Township 17 North, Range 16 West, and in the East line of Lot No. 14 of the J. M. Dunn Partition as recorded in Book 255, page 368, Deed Records of Caddo Parish, Louisiana. Thence with the North right of way of relocated U. S. Highway No. 80, the following course:
South 82°47.5985' West 141.73 feet;
North 1° 15.3824' East 371.81 feet;
Thence North 79°28' East 143.21 feet to a point in the East line of Lot No. 14 of the J. M. Dunn partition;
Thence South 1° 15.3824' West with the East line of Lot 14 of the J. M. Dunn Partition and East line of Section 24, Township 17 North, Range 16 West, 380.-21 feet to the place of beginning, containing 1.2101 acres, more or less.
OWNER: Kelly’s Truck Terminal, Inc.
C. Tract No. 3
That certain tract or parcel of land containing 16.229 acres, more or less, in the SW¼ of Section 19, Township 17 North, Range 15 West, Caddo Parish, Louisiana, and being more particularly described as follows:
Beginning at the ½ iron pin set in the north rights of way of relocated U. S. Highway No. 80, said point of beginning being North 1° 15.3824' East 858.65 feet from the Southwest corner of Section 19, Township 17 North, Range 15 West, and in the East line of Lot No. 14 of the J. M. Dunn Partition as recorded in Book 255, page 368, Deed Records of Caddo Parish, Louisiana.
Thence with the north right of way of relocated U. S. Highway No. 80, the following six (6) courses:
(1) North 82°47.5986' East 28.41 feet;
(2) North 80° 51.8985' East 490.20 feet;
(3) North 76°36.2387' East 205.63 feet;
(4) North 84° 12.7114' East 197.85 feet;
(5) North 53°48.0243' East 565.23 feet;
(6)North 70°20.2387' East 158.76 feet to a point in the north right of way of relocated U. S. Highway No. 80, and the south right of way of Texas and Pacific Railroad;
Thence in a northerly direction along the arc of a curve to the left with a radius of 5654.58 feet (the chord of which bears North 77°47.333' West 1,530.63 feet) a distance of 1,534.72 feet to a ½" iron pin in the south right of way of Texas and Pacific Railroad and in the East line of Lot 14 of the J. M. Dunn Partition; thence South 1° 15.3824' West with the East line of Lot 14 of the J. M. Dunn Partition and West line of Section 19, Township 17 North, Range 15 West, 860.-94 feet to the place of beginning, containing 18.748 acres of land, more or less, LESS AND EXCEPT that certain tract or parcel of land containing 2.519 acres conveyed to Kelly's Truck Terminal, Inc. by deed dated March 11, 1976, recorded in C.B. 1525, page 184, bearing Registry No. 678357 of the Conveyance Records of Caddo Parish, Louisiana.
OWNER: Mrs. Devon Albert Kelly, Mar-shan Kelly Hayes Trust and Devon Albert Kelly, Jr. Trust.

In the event a hearing is required the Board of Aldermen of the Village of Greenwood is ordered to consider the evidence there adduced in light of the views herein expressed and make a reasonable determination of whether or not to grant the petition to deannex and if they find the petition to deannex reasonable the Board of Aider-man is ordered to enact an ordinance dean-nexing the above described property from the Village of Greenwood.

As AMENDED the judgment is AFFIRMED. The costs of this appeal are taxed against appellants.

      . The figures for the succeeding years were:
      1976 — 19%
      1977 — 18%
      1978 — 15%

      . The petition was also signed by other landowners who were originally plaintiffs but who have withdrawn from the case.

      . R.S. 33:176 — To contract the boundaries of a municipality the same procedure shall be followed as outlined above and the same notice must be published and the same right of appeal to the courts is granted as is provided for in the case of the enlargement of the boundaries.

      . R.S. 33:172 — A. No ordinance enlarging the boundaries of a municipality shall be valid unless prior to the adoption thereof a petition has been presented to the governing body of a municipality containing the written assent of a majority of the registered voters and a majority in number of the resident property owners as well as twenty-five percent in value of the property of the resident property owners within the area proposed to be included in the corporate limits according to the certificate of - the parish assessor. If there are no registered voters residing in the area proposed for annexation, then the requirement for a majority of the registered voters on the petition shall not apply. The valuation of the property within the area proposed to be annexed shall be certified to by the assessor according to the assessment of each of the owners signing the petition. Where there has been a change of ownership since the last assessment of the property, the assessor shall certify the valuation of the present owner in accordance with the last assessment appearing on the rolls against any previous owner. In any case where the property of the present owner has not specifically been assessed the assessor shall estimate the assessed value of the property for the current year and certify the same as the value of the property.
      At the request of any municipality contemplating the annexation of any tract of land, the registrar of voters shall provide a certified list of the registered voters residing in the area proposed to be annexed.
      Provided, however, that the city of New Orleans cannot incorporate any area of Jefferson, Plaquemines or St. Bernard Parishes.
      B. Notice by publication shall be given once of the filing of the petition in some newspaper published or having general circulation in the municipality. No ordinance enlarging the boundaries of the municipality shall be adopted until ten days after the publication of the notice. Anyone desiring to be heard with reference to the proposed ordinance shall notify the clerk or secretary of the municipality in writing and the governing authorities, before adopting any ordinance, shall grant such hearing.

      . The petition also requested the deannexation of property owned by signers who are no longer parties to this action and whose property is no longer involved.

      . C.C.P. 2133 — An appellee shall not be obliged to answer the appeal unless he desired to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider ielief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s action.

      . This is illustrated by the following excerpt from the district judge’s reasons:
      “... We have already said that we felt the circumstance was not fair to Kelly’s Truck Stop, but of course the issue is whether or not it is legal. We cannot substitute our judgment for the judgment of the Town of Greenwood. That is, the test is not whether or not we would do it differently if we were in the place of the Town of Greenwood. But the question is whether the Town of Greenwood has overstepped their authority or improperly failed to exercise their authority. The burden of proof is on the plaintiff.” [Rec. 417],


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    SANDERS' CAMPER VILLAGE, INC. v. COLEMAN OLDSMOBILE, INC.
    No. 14928.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.
    Guy A. Módica, Baton Rouge, for plaintiff-appellee Sanders’ Camper Village, Inc.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant Coleman Oldsmobile, Inc.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal by Coleman Oldsmobile, Inc., defendant, from judgment of the district court in favor of plaintiffs, Sanders’ Camper Village, Inc. and Robert T. Sanders, in the sum of $87,423.05. We reverse and render.

The suit commenced with a petition by Sanders’ Camper Village, Inc., a domestic corporation, for injunctive relief against the defendant to protect plaintiff’s interest in certain premises on the Airline Highway in Baton Rouge and the inventory of the accessories and parts located thereon.

The defendant filed a peremptory exception on the ground that Robert T. Sanders, a party to the contract alleged, was an indispensable party to the suit. The defendant also filed an answer asserting that the contract had been entered into through mutual error, and that Mr. Sanders had voluntarily agreed to terminate the contract by surrendering the keys to the premises and removing his property therefrom. The defendant asked that the temporary restraining order be dissolved as having been wrongfully obtained.

After hearing on the rule, the temporary restraining order was vacated, and plaintiff was permitted to correct the deficiencies in the petition so as to name the proper party plaintiff and to set forth a cause of action. Thereafter, plaintiff made the appropriate changes in an amending petition. Coleman responded to the amending petition, reasserting its original defenses.

Thus, in the instant action Sanders claims that plaintiffs and Coleman entered into an agreement [Appendix] whereby Sanders was to enjoy peaceable possession of certain premises on the Airline Highway in Baton Rouge for 180 days from the date of the agreement, or until all of the defendant’s recreational vehicles had been liquidated, whichever occurred first; and that the defendant transferred to them “all inventory of all accessories and all parts located on the said premises.” Under the agreement, Sanders was to liquidate all of the recreational vehicles; he was to retain all profits from the sale of vehicles bearing the “Wilderness” label, with the gross profits being equally shared on other units (less salesmen’s commissions). Coleman denied the plaintiffs’ claim that there was any agreement, and affirmatively asserted that Sanders voluntarily relinquished the premises to the defendant and that the parties had mutually abrogated the agreement, if any agreement had been made.

The facts giving rise to the present action are that Coleman and Sanders, a former employee of Coleman, negotiated for an agreement, because Coleman wished to get out of or reduce his participation in the handling of the recreational vehicle business, and Sanders was going into a similar type of business. Sanders and Coleman conferred about an agreement looking toward the liquidation of Coleman’s recreational vehicles. Coleman was to contribute certain things and the place from which to operate the business of liquidating the units; Sanders was to render a service in disposing of the vehicles. He also was to keep the profit derived from warranty service. Certain inventory of parts was transferred to Sanders, or made available to him for service, repair and warranty work. The terms and provisions of the alleged agreement are in dispute. Nevertheless, under some arrangement, Sanders attempted to liquidate the recreational vehicles for Coleman. As it turned out, the liquidation of the recreational vehicles did not go as well as either party had expected.

The arrangement can, to some extent, be shown from the agreement [Appendix] and from the testimony of Mr. Sanders, as follows:

“THE COURT: All right. Then you were going to occupy that building for a hundred and eighty days rent free; is that right?
“THE WITNESS: Yes, sir. That’s correct.
“THE COURT: Okay. The agreement says here that you get all of the parts—
“THE WITNESS: Yes, sir. That’s correct.
“THE COURT: —and accessories.
“THE WITNESS: Yes, sir.
“THE COURT: You got the Wilderness vehicles.
“THE WITNESS: I had to buy the Wilderness. That was more of a liability now. That was part of the agreement.
“THE COURT: I know. What I’m trying to say, you got the Wilderness vehicles, but you were going to have to pay off the floor plan.
“THE WITNESS: That’s right. Which I had to carry the floor plan and get rid of them on my own. That was part to his benefit on that.
“THE COURT: Well, why was that to his benefit?
“THE WITNESS: Well, put it this way. When you take on that many trailers at that time when business was that bad, you know — In fact, I don’t even — I can-celled the Wilderness franchise when I got rid of the rest of the trailers.
‘THE COURT: Did you lose money off of that?
‘THE WITNESS: It’s hard to say. I probably broke out about even by the time profits and floor plans and everything else. I could have lost a little or could have made a little on them.
‘THE COURT: So you broke — Say you broke even on that.
‘THE WITNESS: Okay.
‘THE COURT: All right. You were going to perform the warranty service.
‘THE WITNESS: Yes, sir. That’s correct.
‘THE COURT: And you were going to keep any of the profit from the warranty service.
‘THE WITNESS: Yes, sir.
‘THE COURT: And you were going to get fifty percent of the profits and he was going to get fifty percent of the profits from the sale of the other vehicles; is that correct?
‘THE WITNESS: After salesmen’s commissions were paid.
‘THE COURT: Okay. You were going to hire the employees. You were going to run the shop; is that right?
‘THE WITNESS: Yes, sir. I was paying all employees, the office employees and the shop and the sales. Well, sales, we were actually really paying fifty/fifty, because it was fifty percent after salesmen’s commissions so I guess he, you know — We were really both paying sales people.
‘THE COURT: All right. What was going to happen if there were vehicles left at the end of the hundred and eighty days? Mr. Coleman was going to keep them?
‘THE WITNESS: We had talked about it. He talked about extending it at that part. The way the contract just black and white says, he will have the balance of the vehicles and have to liquidate the balance himself.
'THE COURT: As I compute this now, at the beginning of the contract there was some ninety-two thousand dollars [$92,000.00] worth of parts and accessories, right?
'THE WITNESS: Yes, sir. That’s correct.
'THE COURT: From your testimony, indicates that during the period of the contract, if the contract would have gone the whole time, there were forty-three vehicles sold, counting the ones you took off of his hand.
‘THE WITNESS: Right, that was within three months time, about three and a half months time.
‘THE COURT: Now, if your net profit figure is right, of those forty-three, let’s say forty-three, — Forty-three vehicles sold. Your net profit figure, if you add, if you multiply that times twelve hundred dollars, that’s fifty-one thousand six hundred dollars, right?
‘THE WITNESS: Right.
‘THE COURT: You’ll accept that figure?
‘THE WITNESS: Yes, sir.
‘THE COURT: Divide that by two. That means that you are going to get twenty-five thousand three [eight] hundred dollars, right?
‘THE WITNESS: Yes, sir.
‘THE COURT: And Mr. Coleman gets twenty-five thousand eight hundred dollars.
‘THE WITNESS: That’s correct.
‘THE COURT: In addition, if the agreement is interpreted the way that you contend it’s interpreted, you get the profits on the warranty work.
‘THE WITNESS: I get the total amount on the warranty work.
‘THE COURT: The total amount of the warranty service.
‘THE WITNESS: The part was a hundred percent profit.
‘THE COURT: That’s right, the total amount of the warranty work. You get the place rent free. In addition, you get ninety-two thousand, seventy-two dollars and ninety-seven cents of parts and accessories, right?
“THE WITNESS: Yes, sir. That’s correct.
“THE COURT: All right. This means that over the period of life for this contract the cash basis is that counting the parts, if everything would have gone to the end of the contract, you would have gotten a cash flow plus the warranty agreement, without the warranty work, you would have gotten $117,872.97.
“THE WITNESS: Yes, sir.
“THE COURT: And Coleman would have gotten $25,800.00.
“THE WITNESS: That’s right.
“THE COURT: Now, you have been in business a long time. Now, tell me how that would benefit Mr. Coleman?
“THE WITNESS: Sir, I didn’t ask for the contract, first of all. It was brought to me. Okay. Now, Mr. Coleman wanted out of the business.” (Emphasis added.)

Although sales language is used to a certain extent and the arrangement between the parties has certain characteristics of a contract of sale, the agreement is more nearly a kind of limited partnership and lease than it is a sale. It is also apparent from the circumstances that the inventory was to be used in conjunction with the liquidation of the recreational vehicles. It was not just given to.Mr. Sanders. The principal motive of the agreement was the liquidation of the vehicles, with Coleman, more or less, getting out of that type of business and with Sanders getting more involved with that or a similar type of business. The agreement had a limited term of duration. Under no circumstances was the arrangement between the parties to last more than 180 days (and hopefully the parties could close it out sooner than that, with the liquidation of all the recreational vehicles). It was the intention of both parties that the recreational vehicles were to be liquidated as quickly as possible (but in not later than 180 days).

Both parties must agree to the substantial elements of a contract to have a binding obligation. LSA-C.C. arts. 1779(2), 1798; Custom Builders & Supply, Inc. v. Revels, 310 So.2d 862 (La.App. 3 Cir. 1975). Contracts are founded on the agreement of the parties; where they misunderstand each other, there is no contract. Cheramie v. Stiles, 215 La. 682, 41 So.2d 502 (1949). Error in the principal cause of the contract invalidates consent and is sufficient reason to rescind a contract. LSA-C.C. art. 1825; Walker v. Don Coleman Construction Company, Inc., 338 So.2d 1183 (La.App. 2 Cir. 1976); Hoff, Error in the Formation of Contracts in Louisiana: A Comparative Analysis, 53 Tul.L.Rev. 329 (1979).

LSA-C.C. art. 1841 states:

“Error as to the nature of the contract will render it void.
“The nature of the contract is that which characterizes the obligation which it creates. Thus, if the party receives property, and from error or ambiguity in the words accompanying the delivery, believes that he has purchased, while he who delivers intends only to pledge, there is not [no] contract.”

It is well settled that when one of the parties errs in perceiving the very nature of the contract into which he enters, the contract cannot be enforced against him. Becker and Associates, Inc. v. Lou-Ark Equipment Rentals Co., Inc., 331 So.2d 474 (La.1976). We are convinced from the evidence that Coleman would not have entered the agreement if he had been aware that the agreement was to be treated by Sanders as a sale of the recreational vehicle business, including all vehicles and the inventory of parts and accessories, to Sanders.

We find the trial court erred in treating the inventory of accessories and parts as having been sold by Coleman to Sanders under the agreement. There was never any intention that the inventory belonged to Sanders irrespective of whether he fulfilled his obligations under the contract.

Moreover, we find that regardless of how the agreement between these parties is categorized, it was abrogated by their mutual consent on April 17, 1980.

Coleman testified that he had been informed that Sanders wanted out of the deal, inasmuch as sales were bad and Sanders had his own business, Sanders’ Camper Village, Inc., on Florida Boulevard. They held a meeting on April 17, 1980; and Sanders handed him the keys, then left to obtain personal property. Sanders testified that although he was in business at another location, he wanted to complete his contract; but Coleman told him at the April 17 meeting that he needed the premises because he was going into the mobile home business himself. Sanders stated that Coleman demanded the keys, but did not threaten him or physically take the keys from him; he handed Coleman the keys.

Concerning the testimony of other persons in attendance at the meeting, M. A. Simmons testified that Sanders had spoken with him about getting out of the deal with Coleman, so he had told Coleman about this. Simmons also testified that no one was satisfied with sales at the RV Center. Simmons said that Sanders voluntarily handed the keys to Coleman, and left the premises. This testimony was corroborated by that of Russell A. Barbay who testified about what Sanders had said to him about the matter. He also stated that Sanders voluntarily surrendered the keys to Coleman and left the premises, after getting his personal belongings.

An agreement legally entered into has the effect of law on those who have formed it; nevertheless, it is well recognized that agreements may be modified, abrogated, or revoked by mutual consent of the parties. LSA-C.C. arts. 1901, 1945, 2130; Arceneaux v. Adams, 366 So.2d 1025 (La.App. 1 Cir. 1978); Bruhl v. White, 346 So.2d 734 (La.App. 1 Cir. 1977), writ refused, 349 So.2d 1268 (La.1977); Christ v. Christ, 251 So.2d 197 (La.App. 3 Cir. 1971); Noto v. Blasco, 198 So. 429 (La.App. 1 Cir. 1940).

In the instant case, Sanders had other business interests which needed his attention and to which he wanted to devote more of his time, as he expressed on several occasions to Simmons and to Barbay. This information was relayed to Coleman, and a meeting was arranged. After the meeting on April 17, 1980, in the presence of Simmons and Barbay, Sanders voluntarily gave the keys to Coleman, obtained his personal belongings, and departed from the premises. After discussing the matter with his attorney, Sanders did come back, in an effort to regain possession of the premises. His return did not have the effect of reviving the contract, which had already been mutually terminated. Under the circumstances, we hold that the parties abrogated their agreement or arrangement by mutual consent on April 17, 1980.

For the assigned reasons, we reverse the judgment appealed, and render judgment in favor of defendant, Coleman Oldsmobile, Inc., dismissing the plaintiffs’ suit at their costs.

REVERSED AND RENDERED.

APPENDIX

STATE OF LOUISIANA

PARISH OF EAST BATON ROUGE

THIS AGREEMENT MADE AND ENTERED INTO on this 31 day of January, 1980, by and between:

COLEMAN OLDSMOBILE, INC., a Texas corporation authorized to do and doing business in the State of Louisiana with its principal place of business located at 9150 Airline Highway, Baton Rouge, Louisiana, represented herein by its duly authorized President, Robert E. Coleman, hereinafter referred to as “Seller”; and,

SANDERS CAMPER VILLAGE, INC., a domestic corporation domiciled in the Parish of East Baton Rouge, State of Louisiana, represented herein by its duly authorized officer and agent, Robert T. Sanders, and ROBERT T. SANDERS, a resident of lawful age of the Parish of East Baton Rouge, State of Louisiana, hereinafter referred to as “Buyer”;

WHEREAS, “Seller” owns and operates Coleman RV Center situated on Airline Highway, Baton Rouge, Louisiana adjacent to and in conjunction with Coleman Oldsmobile, Inc. situated at 9150 Airline Highway; “Seller” desires to liquidate the recreational vehicle business and to transfer certain assets for the considerations to be hereinafter stipulated; and,

WHEREAS, “Buyer” is engaged in and desires to engage in the recreational vehicle business including warranty work, maintenance, service and repairs and desires to acquire certain recreational vehicles, parts, equipment and other related and incidential [sic] items:

WITNESSETH:

For and in consideration of the covenants, stipulation and agreements hereinafter set forth, “Seller” and “Buyer” do hereby agree, stipulate and contract as follows:

1. “Seller” transfers, assigns, and delivers unto “Buyer”:

(A) The occupancy, rent free, and with all utilities including electricity, gas, water and phone, all as is, of that building occupied on Airline Highway as Coleman RV Center for a period of 180 days from the date of this agreement or until all recreational vehicles belonging to “Seller” have been liquidated, provided this occurs prior to the lapse of 180 days.

(B) All inventory of all accessories and all parts presently located on the premises hérein described.

2. “Seller” transfers, conveys, assigns and delivers unto “Buyer” all recreational vehicles on the premises manufactured or bearing the manufacturer’s label of “Wilderness”.

3. “Buyer” agrees and consents to the stipulations and convenants hereinabove set forth and additionally, “Buyer” agrees that [in the consideration of the premises and the occupancy of the same together with the accessories, parts and recreational vehicles made available to “Buyer”,] “Buyer” will sell, service, maintain and render warranty service and repair work on all recreational vehicles presently located on the premises and presently consigned to, on or covered by the floor plan of “Seller” with “Buyer” keeping any and all profit from such repair service or warranty work:

4. “Buyer”, will pay any and all sums due either on the floor plan or to the manufacturer of any recreational vehicle bearing the “Wilderness” label, and will retain any and all profits therefrom. In the sale of all other units belonging to “Seller”, “Seller” and “Buyer” will split the gross profits on the basis of 50% to each, less any commission due any salesman.

5. “Buyer” further stipulates and agrees to be responsible for the payment of all commissions, salaries, taxes, social security on all employees employed by “Buyer” and to pay any and all expenses incidental to and related to the service, repair, warranty repair or maintenance of any of the vehicles covered by this agreement with “Buyer” keeping all profits therefrom.

6. “Buyer” further agrees that in transacting any business either with manufacturers, distributors, suppliers or with retail or wholesale customers, to make it understood- and clear that such business is being conducted with “Buyer” and that'“Seller” is not connected with or involved in any such transactions subsequent to the date of this agreement.

7. “Buyer” agrees and stipulates that he will maintain the premises of which it has been given occupancy as a prudent administrator, maintaining and keeping the same in good shape, ordinary wear and tear excepted, and will additionally preserve and protect any and all recreational vehicles on the premises.

8. “Buyer” further agrees, as an additional consideration for this agreement, to make every effort to completely liquidate the entire stock of recreational vehicles and will put forth his best efforts in order to liquidate all assets and recreational vehicles belonging to “Seller” in order that “Seller” may withdraw from the recreational vehicle business.

9. “Seller” warrants that he is the owner of the premises to be occupied by “Buyer” and that “Buyer” shall enjoy peaceful possession of the same for the period of time stipulated herein conditioned upon “Buyer” faithfully performing each and every stipulation, agreement and convenant herein provided.

THUS DONE AND SIGNED on this 31 day of January, 1980, in the presence of the undersigned witnesses and the parties hereto.


author: GULOTTA, Judge.

text:
    Amber Faith ADAMS v. The TIMES-PICAYUNE PUBLISHING CORPORATION, et al.
    No. 13022.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1982.
    Lloyd R. Walters, Slidell, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John G. Gomila, Jr., New Orleans, for defendants-appellees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

The question in this accident case is whether the Times-Picayune Publishing Corporation was the employer of the defendant truck driver at the time of the accident or whether that driver was an independent contractor.

Plaintiff, an injured guest passenger, appeals from the dismissal, on summary judgment, of her claim against the Times-Picayune Publishing Corporation (the Picayune), alleged to be the “employer” of the host-driver who “was acting as agent and employee, within the course and scope of his employment” at the time of the accident. We affirm.

According to plaintiff’s affidavit in opposition to the motion for summary judgment, the accident occurred while she was riding in a vehicle driven by Anton George Heine, II on a trip solely for “the purpose of fulfilling his obligation and employment duties” with the Picayune to distribute newspapers. Plaintiff stated that at the time of the accident she and Heine were returning to Slidell from Chalmette where Heine had received the newspapers at a “substation” and had distributed them to carriers. In answer to the Picayune’s interrogatories, plaintiff also stated Heine was carrying several newspapers for placement for sale in Slidell and driving a truck that was used about 90% of the time for his “work” with the Picayune. She said that he was “employed” by the Picayune as a “distributor” responsible for pickup of the papers from his “newspaper storehouse” by carriers.

In support of its motion for summary judgment, the Picayune produced the'affidavit of its circulation director, William Connelly who stated that an “Independent Dealer Contract” existed between the Picayune and Heine. Heine, as independent dealer, purchased newspapers from the Picayune for resale and delivery to his customers in a defined territory in St. Bernard Parish. The Picayune paid no salary or wages to Heine, and his income was derived solely from the profits he was able to earn on the sales of his newspapers to his home delivery and other customers. The Picayune did not withhold Federal, State, unemployment or social security taxes. Further, Heine was not listed on the Picayune’s payroll or policies of liability insurance and did not participate in Picayune employee benefit programs.

According to Connelly’s affidavit, the Picayune did not participate in Heine’s decisions concerning the manner of delivering his papers, granting credit to his customers or any other aspect of his business operations. The Picayune did not participate in Heine’s selection, training, discipline or compensation of his employees. Heine was not required to purchase a minimum number of newspapers and had discretion concerning the satisfaction of his customers.

A copy of the “Independent Dealer’s Contract” attached to Connelly’s affidavit provides that the independent dealer is to “use his own judgment in making sales”, “adopt his own method for the conduct of his business”, and “use his own judgment in making deliveries and employing personnel” Under the contract Heine is to “pass on the credit risk of each subscriber” in his area and may reject poor credit risks. Heine agreed to sell regularly and promptly deliver the paper in a manner satisfactory to subscribers in his area and to furnish the Picayune with a list of subscribers when requested.

The contract further provides that the independent dealer is responsible for payment to the Picayune of the newspapers he obtains, whether or not he obtains payment from the subscribers. Unsold copies are not returnable to the Picayune. Where subscribers remit the annual cost of subscription directly to the Picayune, it maintains an account for the independent dealer and pays him his share .monthly when he pays the Picayune for his newspapers.

Heine further agreed to hold the Picayune harmless in any claim arising from his work and expressly agreed that he “occupies at all times the position of purchaser and independent contractor and controls all ways and means relating to the proper performance and completion” of the contract.

Summary judgment is available only when the “pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” See LSA-C.C.P. Art. 966, Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981); Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4th Cir. 1976). Plaintiff’s claim against the Picayune rests on whether there is an employment relationship between Heine and the Picayune, which is a mixed question of law and fact. See Farmer v. Hartford Acc. & Indem. Co., 368 So.2d 487 (La.App. 3rd Cir. 1979), writ denied, 371 So.2d 681 (La.1979). Nonetheless, summary judgment is proper in our case if there is no genuine dispute as to a material fact underlying the business relationship between Heine and the Picayune.

The underlying facts in our case are un-controverted. There is no dispute that Heine distributed Picayune newspapers and that the accident occurred on a mission by Heine from the substation in St. Bernard in connection with his work as a newspaper distributor. Similarly, Heine’s relationship with the Picayune, as set forth in Connelly’s affidavit and answer to the interrogatories, is not disputed.

Although plaintiff alleges in her petition and affidavit that Heine was “employed” by the Picayune and was driving solely for the purpose of fulfilling his “employment duties” with the paper, such statements are conclusory facts and conclusions of law that cannot be relied upon on a summary judgment motion. See Thompson v. South Central Bell Tel. Co., 411 So.2d 26 (La.1982).

That the accident occurred while Heine was engaged on a mission in connection with distributing his newspapers is not in controversy. The real issue is whether or not the undisputed facts establish an employment relationship between Heine and the Picayune.

The principal element in determining whether an employment relationship exists is the right of control and supervision over an individual. Savoie v. Fireman’s Fund Ins. Co., 347 So.2d 188 (La.1977); Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972). To be considered in assessing the right of control are the selection and engagement of the worker, the payment of wages and the power of control and dismissal. Savoie v. Fireman’s Fund Ins. Co., supra; Dauzat v. Crites, 237 So.2d 697 (La.App. 4th Cir. 1970).

In Monnerjahn v. Times-Picayune Pub. Co., 67 So.2d 756 (La.Orl.1953), plaintiff sought recovery in tort against the Picayune for injury resulting from the act of a newspaper carrier who plaintiff alleged was an employee of the Picayune and not an independent contractor. After examining the contract between the carrier and the newspaper, which was similar to the one in our case, the Court dismissed plaintiff’s suit, concluding that no employment relationship existed since the Picayune did not have the right to supervise and control the movements of the contract carriers.

Similarly, in Verrett v. Houma Newspapers, Inc., 305 So.2d 547 (La.App. 1st Cir. 1974), a newspaper publisher was not liable for the acts of its newsboy in delivering newspapers on his bicycle where the newsboy had purchased his papers and supplies from the publisher and was solely responsible for collecting from subscribers, and where the publisher exercised no control over the manner in which the carriers made their deliveries but was interested only in regular and prompt delivery.

In our case, not unlike the Monner-jahn and Verrett cases, the Picayune exercised no control over the manner in which Heine distributed and sold newspapers to the subscribers. Under the rationale of Monnerjahn and Verrett, we conclude the trial judge properly concluded that the Picayune was entitled to a dismissal.

In so holding, we are mindful that Mon-nerjahn and Verrett apparently were not summary judgment cases and that summary judgment is not a substitute for a trial on the merits. Nonetheless, summary judgment is proper in our case where there exists no genuine issue of material fact and a party, as a matter of law, is entitled to a summary judgment. LSA-C.C.P. Art. 966. Summary judgment is proper in the instant case.

Accordingly, the judgment is affirmed.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Helen H. LAMB, Plaintiff-Appellant, v. W. C. LAMB, Defendant-Appellee.
    No. 82-274.
    Court of Appeal of Louisiana, Third Circuit.
    July 16, 1982.
    Rehearing Denied Sept. 8, 1982.-
    Warren D. Rush, Lafayette, for defendant-appellee.
    William D. Grimley, Baton Rouge, for plaintiff-appellant.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   MOTION TO DISMISS

GUIDRY, Judge.

The defendant-appellee, W. C. Lamb, moves to dismiss the suspensive appeal of the plaintiff-appellant, Helen H. Lamb, on the grounds that the appellant’s appeal was not timely taken under LSA-C.C.P. 4735. We dismiss the suspensive appeal.

The facts succinctly stated are as follows:

Helen H. Lamb, plaintiff-appellant, filed a rule against W. C. Lamb, defendant-ap-pellee, for alimony pendente lite. A rule was filed by W. C. Lamb against Helen Lamb for eviction arid for an accounting of the movables on certain described premises. Presumably, the rules were consolidated for hearing and heard on February 16, 1982. Part of the judgment disposing of the rule filed by W. C. Lamb ordered Helen Lamb evicted from the premises described in the judgment. It is this portion of the judgment from which Helen Lamb suspensively appealed. Judgment was signed in this matter on April 8, 1982 and notice of judgment was mailed on April 12, 1982. Plaintiff-appellant’s suspensive appeal was perfected on May 3, 1982. Applicable here is LSA-C.C.P. art. 4735 as follows:

Art. 4735. Appeal; bond
An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.
Source: Former R.S. 13:4924; cf. Comments following.

It is clear from a reading of the above article that plaintiff’s suspensive appeal was not timely perfected, as it was not filed within 24 hours after the rendition of judgment of eviction. The suspensive appeal of plaintiff-appellant is therefore dismissed, and plaintiff’s appeal ordered maintained as devolutive.

SUSPENSIVE APPEAL DISMISSED.


author: SAMUEL, Judge. GARRISON, Judge,

text:
    Armantine M. SMITH v. TRAVELERS INSURANCE COMPANY, et al.
    No. 11819.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 1982.
    Writ Granted Oct. 18, 1982.

      Theodore A. Mars, Jr., New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Mark B. Meyers and Jesse R. Adams, Jr., New Orleans, for Arthur Henry Chester, Underwriters at Lloyds of London and excess underwriters, defendant-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John J. Weigel and Madeleine Fisher, New Orleans, for Travelers Ins. Co. and Jerry Krushin, defendants-appellees.
    Before SAMUEL, GARRISON and BAILES, JJ.
   SAMUEL, Judge.

This is a tort action for very serious personal injuries sustained by the plaintiff in a one-vehicle automobile accident. The car had entered into a parking area where it stopped and then proceeded to move backward in reverse gear in order to turn around. During that time plaintiff opened the car door to leave the vehicle. Primarily at issue is whether the driver knew, or should have known, plaintiff intended to leave the vehicle and was proceeding to do so. She fell and was struck by the open door which traveled across her back, “popping” her spine.

The originally named defendants are Jerry Krushin (defendant driver), Kemper Insurance Company, Travelers Insurance Company, public liability insurer of Krush-in, and State Farm Mutual Automobile Insurance Company, plaintiff’s liability insurer. Kemper, Lumbermens and State Farm subsequently were dismissed without prejudice and those insurers are not before us in this appeal. The matter proceeded to trial against Krushin, Travelers and tfre Underwriters at Lloyds of London, the latter being excess insurers made defendants by supplemental and amended petition.

The matter was tried to a jury which returned a verdict in favor of the defendants, dismissing plaintiff’s suit, and that verdict was made the judgment of the court.

Plaintiff has appealed. In this court she assigns as error the trial court’s refusal to:

1) order the defendants to make available statements taken by them from the driver and a guest passenger, Revonda Sur-ratt, shortly after the accident; 2) grant plaintiff’s pre-trial motion to exclude testimony relative to the use of marijuana by the plaintiff on the evening of the accident; 3) grant plaintiff’s pretrial motion to exclude testimony of a defendant witness concerning cost of payment for an annuity which allegedly would provide a monthly income to plaintiff; and 4) admit certain plaintiff proffers.

Appellant further contends: 5) the trial court erred in giving certain allegedly incorrect and erroneous charges to the jury regarding proximate cause (instead of cause in fact), assumption of the risk, last clear chance, the duties of the driver of the vehicle, and the “non-existent” duty of a guest passenger to notify the driver of her intention to alight from a “parked” vehicle. Finally, she contends: 6) the jury verdict was manifestly erroneous and clearly contrary to the law and the evidence.

Relative to appellant’s first assignment of error, she argues there was “good cause” for the trial court to order the production of the statements of the only two people, other than plaintiff herself, who were witnesses to the occurrence of the accident, because she was thrown to the ground and sustained a blow on the head, rendering her recollection of facts and circumstances not as clear as was the recollection of those other two witnesses. The trial judge refused to order the production of the statements.

The accident occurred in late December, 1978, and the statements of the defendant driver and that of Ms. Surratt were taken, respectively, on February 8, 1979 and February 19, 1979. Defendants contend the statements were taken in anticipation of litigation, and that plaintiff has not demonstrated undue prejudice.

Initially, plaintiff did not file a request for production of the statements; she filed only a motion to compel production. When the matter was heard the trial court denied the motion without prejudice so that plaintiff could reurge the motion after the depositions of those persons had been taken. Following the taking of the depositions, plaintiff filed a request for production, which the insurer refused, reurging its position that the statements were taken in anticipation of litigation and no prejudice had been demonstrated. No further action was taken by plaintiff to obtain the statements.

In pertinent part, Code of Civil Procedure Article 1424 reads:

“The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, expert, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice.”

The article contemplates a twofold inquiry: (1) Were the items sought to be discovered obtained or prepared in anticipation of litigation?; if so, (2) will the party seeking the production be unfairly prejudiced or subjected to undue hardship or injustice by the denial? The burden on the first inquiry rests with the party holding the statements. If carried, the burden to prove prejudice, hardship or injustice shifts to the party seeking production. The applicable principles are discussed in Sonier v. Louisiana Power & Light Co., La.App., 272 So.2d 32, Bordelon v. Phoenix Insurance Company, La.App., 244 So.2d 919, and Self v. Employers Mutual Liability Ins. Co. of Wis., La.App., 90 So.2d 547.

That the statements of Krushin and Surratt were taken in anticipation of litigation is not seriously contested. Plaintiff argues only that she demonstrated good cause to overcome the exception. She relies on the case of Ogea v. Jacobs, La., 344 So.2d 953, for the proposition that statements taken shortly after the accident are of unique value for discovery purposes. In Oge a, the statement was taken several days after the accident. In the instant case, they were taken six to eight weeks after the accident. We note also that Ogea limited its holding to the facts in that case and the court declined to adopt a strictly time-keyed rule.

In this case depositions were taken. Plaintiff claims they were filled with “I don’t recall, and I don’t remember”. While we are not cited to specific instances, we do note that Surratt was a plaintiff witness.

Plaintiff further complains that a matter of lighting was brought out at the trial but not at the deposition. If the question was not asked at the deposition, plaintiff cannot complain that such information was not volunteered at that time.

As has been said, although plaintiff filed a motion to produce the statements after the depositions were taken, she did not file a rule to compel which would have given the trial court the opportunity to pass upon the objection in the light of the depositions. Since this was not done, the original ruling was still in effect. Regardless of these facts, in our view the trial court ruling was correct. The record before us does not establish that denial of production or inspection of the statements unfairly prejudiced plaintiff or caused her undue hardship or injustice.

Regarding appellant’s second contention, the trial court ruled that testimony relative to marijuana use prior to the accident was relevant and could be presented to the jury. In our opinion, to have concealed that fact would have been improper, just as it would have been to exclude testimony relative to the use of alcohol prior to the accident. The jury was instructed to draw reasonable inferences based on native intelligence and reach its own conclusion, taking into account common knowledge and human experience. We find no error in this instance.

Appellant’s third assignment of error is directed to testimony regarding cost of an annuity allegedly sufficient to provide a monthly income to plaintiff, and thus was concerned solely with quantum, i.e., the amount of damages which could be awarded in the event of a judgment in favor of plaintiff. Since the jury decided the issue of liability against the plaintiff, the trial court ruling relative to this testimony was inconsequential; it could not have influenced the jury one way or another and does not constitute reversible error. Olivier v. Ourso, La.App., 308 So.2d 811.

Relative to the fourth assignment of error, the evidence plaintiff sought to introduce in evidence, but was refused, consists of computer printouts regarding plaintiff’s life expectancy as it affects health care costs. The printouts are before us by means of a proffer. The witness testified to the future cost of plaintiff’s health care and showed the printouts, including calculations showing the cost of a homemaker at three days per week, 8 hours per day, and such calculations without including the cost of a homemaker. These were gross figures and not discounted to present value. The trial court permitted the testimony and allowed the jury to see the printouts, but refused their introduction in evidence on the ground that the figures on the printouts had been testified to in full by the witness and therefore such documentary evidence would add nothing to the testimony.

Since the jury never reached the issue of damages, the ruling on this proffer also is inconsequential. Olivier v. Ourso, supra.

We do not consider in detail the fifth assignment of error, which is concerned with alleged incorrect and erroneous jury charges given by the court. The rule enunciated in Gonzales v. Xerox Corporation, La., 320 So.2d 163, is that when an appellate court has all the facts before it, a trial judge’s erroneous instruction to the jury does not warrant a remand; under such circumstances the appellate court must review the trial record and reach a decision on the merits. In this case all of the facts are before us, we have thoroughly reviewed the record, and we have concluded that the jury verdict and the judgment appealed from are correct. Thus, there is no need to consider each alleged erroneous charge in detail because, under Gonzales, even if one or more of the charges were both erroneous and consequential, we could not remand and we would be required to do what we already have done, review the record and reach a decision on the merits.

We find the following facts:

The accident occurred in late December, 1978. Plaintiff, Armantine Smith, her friend, Revonda Surratt, and Jerry Krushin, the defendant driver, had gone Christmas shopping. After the stores closed about 9 or 9:30 p.m., the three drove to a bar where they each consumed four or five alcoholic drinks between the time they arrived and the time they left at about 12:30 a.m. Krushin was seated in a chair near the end of the bar during all or most of that time, but the ladies circulated during the evening and, on one occasion, went outside with two other men to the latters’ car, where each took four or five puffs from a marijuana cigarette. Krushin was invited, but did nof join that group.-

Plaintiff, Krushin and Surratt left the bar for the purpose of returning to the apartment complex where the latter two resided. The three occupied the front seat of the car with Krushin driving, Surrat in the middle, and plaintiff seated to the extreme right next to the door. As they approached the entrance to the complex, they heard a favorite song on the radio and either Krushin or Surratt turned up the volume well above normal. Krushin decided to drive around until the song was finished before stopping at the apartment, and the ladies knew this.

Accordingly, after entering the main gate of the complex, Krushin turned to the right instead of to the left (the latter being the way to his apartment). At this time the two ladies were chatting with each other. They saw swings and a children’s play area with which plaintiff was unfamiliar. Sur-ratt explained this was the area for couples with children, as opposed to the adults’ area where she and Krushin lived. The ladies decided to go to the play area and try out the swings. They did not inform Krushin of this decision and he did not hear their conversation due to the loud music and the fact that the ladies faced each other while they conversed.

Intending to turn around and head back to his apartment, Krushin drove into a parking area adjacent to the playground, stopped momentarily and put his car in reverse. He did not drive directly into the space of one of the parking bays; the vehicle crossed the right parking line of a bay. There were about three open bays between his car and the vehicle parked to his right. The car parked to his left was about one to one and one-half bays from his vehicle. Preparatory to backing up and as he began backing up, he looked to his left front and then over his left shoulder to his left rear. At this point, either when the car was moving or when it was momentarily stopped prior to putting the car in reverse (the vehicle had automatic transmission and the motor was never turned off), plaintiff opened the door and either stepped or tripped out of the vehicle and fell to the ground. Surratt screamed and Krushin immediately stopped the car after it had trav-elled backwards only one to one and one-half feet. However, plaintiff was struck by the car door and has been paralyzed since that time as a result of the accident.

It is clear that the conversation between the ladies about getting out of the automobile came up only seconds before plaintiff actually opened the door to get out. Accordingly, plaintiff knew, or should have known, that when Krushin began to turn into the parking bays he was not doing so with the intention of letting her get out to play on the swings. She knew the radio was blaring and she had no reason to anticipate Krushin could hear her conversation with Surratt over the loud music. Further, she knew the reason for driving around the complex was to hear the song and that they were, in fact, going to return to Krushin’s apartment.

Under these circumstances, we are satisfied that the incident happened too quickly for Krushin to stop before it occurred. Accordingly, we find no negligence on the part of the defendant driver.

Regarding the sixth and last assignment of error, that the jury verdict was manifestly erroneous and clearly contrary to the law and the evidence, as shown by our above discussion of our review of the record and our conclusions regarding the same, and as stated above, we are of the opinion that the jury verdict dismissing plaintiff’s suit was both factually and legally correct.

Finally, we note that the rule relative to our independent review of the record insofar as the alleged jury charges are concerned (under Gonzales and discussed above in our consideration of the fifth assignment of error) probably also is applicable to the second, third and fourth assignments of error regarding alleged erroneous rulings on the exclusion or admission of evidence. However, because of the severity of the injury here involved, we have given a more detailed consideration to those assignments of error.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

GARRISON, J., dissented with written reasons.

GARRISON, Judge,

dissenting.

I dissent.

On December 26, 1978 plaintiff, Arman-tine Smith, Revonda Surrat and Jerry Krushin, the driver of the vehicle, had gone Christmas shopping. They then drove to Nick Castrogiovanni’s bar, “Nick’s”, where they each consumed four or five drinks between the hours of 9:00 p. m. or 10:30 p. m. and 12:30 a. m. Additionally, plaintiff had four puffs from a marijuana cigarette early during the 9:00 p. m. or 10:30 p. m. to 12:30 a. m. period. Revonda Surrat also smoked the marijuana cigarette.

The four then left the bar and returned to the apartment complex where Krushin resided. Krushin took a circuitous route through the parking lot in order to continue listening to a favorite song. Krushin pulled into a parking slot, placed the car in neutral with the motor running and was listening to the song when plaintiff opened the car door to leave the vehicle. Krushin shifted into reverse. Either plaintiff was knocked down by the open car door after she had exited the vehicle, which was now moving in reverse, or tripped and fell while exiting the vehicle. In either case, the open door traveled across her back, “popping” her spine. She is now paralyzed.

On appeal, plaintiff raises 15 individual specifications of error. A number of those specifications deal with jury instructions by the trial court. Defendant argues that plaintiff failed to timely object at trial. I do not agree. The trial judge stated as follows:

“Now, prior to the giving of the charges a conference was had with counsel of record in which the Court indicated to [each] party those specially requested charges which would be given, and those specially requested charges which were requested but denied.
“The Court assured all counsel that their objections were timely made and will have the record reflect that those objections were timely made. It is just that it has not been convenient for the Court to place this on the record until now.
“So, it will suffice it to say that with respect to the general charges, each party has objected to that portion of the general charges which has not been favorable or was detrimental to his particular client. With respect to plaintiff’s requested special charges, he has particularly objected to the Court’s failure to give those charges which the Court denied, and he has objected to those specially requested charges of the defendant which the Court did agree to give.
“With respect to the defendant, the defendant has objected to all of those specially requested charges made by the plaintiff which were given, and has specifically objected to all of those defense-requested charges which were denied.” (Tr., Vol. VII, p. 673)

C.C. art. 1793 requires that objections be made (1) by a party; (2) before the jury retires; (3) that the party state the matter to which he objects; and (4) that the party state the ground of his objection.

As evidenced by the trial judge’s discourse, both parties complied at the charges conference. While the specific grounds and matter of each objection technically should have been made part of the transcript, the error, if any, lies on the part of the trial judge. Both parties made their objections as much as they were able in light of the circumstances. All jury charges requested, given and denied, are contained within the record along with the trial judge’s research and decision notes. The purpose of making an objection is to call the attention of the appellate court to the matter as potentially requiring further examination. I am amply notified.

On appeal plaintiff argues that the following charge prejudiced the jury so as to create reversible error.

“She must ascertain that the driver knew or, under the circumstances, with the exercise of reasonable care could or should have known that which she was going to do, that is, leave the automobile, and failure to ascertain this or to notify him of her intentions, could be considered as a breach of duty on her part.” (Tr., Vol. VII, pp. 668-669)

Defendant argues that the jury charge was proper, citing Westerfield v. Guichard, 233 So.2d 19 (La.App. 4th Cir. 1970); Ramos v. Gentilly Woods Phillips 66, Etc., 354 So.2d 729 (La.App. 4th Cir. 1978); Aucoin v. Lodrigues, 252 So.2d 758 (La.App. 1st Cir. 1971); McTire v. Gremillion, 38 So.2d 800 (La.App. 2nd Cir. 1949); Bennett v. Pugh, 177 So. 112 (La.App. 2nd Cir. 1937); and three New York cases. None of the cases cited by defendant place on the passenger the affirmative duty to notify the driver of her intentions to leave the vehicle absent extraordinary circumstances. In Aucoin, above, an adolescent male jumped from a rear door of a moving vehicle. In McTire a middle aged gentleman was riding on the outside running board of a truck. His hat blew off of his head and in his attempts to “grab” the hat, he fell off of the running board. In Bennett a middle aged woman stepped off of the running board of a milk truck which had never stopped. In Guichard the plaintiff opened her car door, causing it to protrude into the path of an oncoming car. Likewise, in Ramos, a truck traveling in reverse hit the open door of a parked automobile while the passengers were attempting to exit.

Defendant argues that a passenger’s duty to see that which she should have seen or, to put it another way, to ascertain that she can disembark safely, is equivalent to an affirmative duty to inform the driver of a parked vehicle of her intention to leave the parked ear. I cannot agree. The duty to ascertain safe disembarkment is one which requires only the attention and subjective judgment of the person disembarking; it does not require communication or other objective manifestation, as it occurs solely and wholly in the mind of the passenger. There exists no affirmative duty to communicate. Indeed, it would be ludicrous to require of the citizens of Louisiana whenever a car is parked that the driver and passenger must look at each other and say, “I’m getting out now.” Thus, I conclude that the trial judge’s instruction constituted error.

Although the trial judge erred in his instructions, is that error a reversible error? I find that it is. The test to be applied is whether the error was likely to have affected the final outcome of the trial so that it is reversible error instead of mere harmless error. In the instant appeal I find that the faulty jury instruction did, in fact, affect the outcome of the trial. Having been told that the plaintiff had an affirmative duty to inform the driver of her intention to depart, the jury could only have found as it did. Accordingly, I find that reversible error has occurred. However, the case need not be remanded to the court below. Under Gonzales v. Xerox, 320 So.2d 163 (La.1975), this court may render judgment.

On appeal, plaintiff argues that the verdict rendered was clearly contrary to the evidence and testimony presented. I agree.

Mr. Krushin had replaced the car radio with a sound system consisting of a bi-amplified Sanyo AM-FM cassette system with two rear mounted 6" X 9" tri-axial speakers. At the time of the accident, Mr. Krushin turned up the volume of the sound system in order to listen to a song, and drove to an area of the apartment complex other than the area where he lived. He testified that he could not hear the conversation between Revonda and plaintiff, although they were seated directly next to him on the front seat. Mr. Krushin was so engrossed in the music that he even failed to notice when the inner car light came on when plaintiff opened the door. Most significantly, Krushin placed the car in reverse gear, admitting that he did not look to the right at any time. The proximate cause of the accident was krushin’s action in placing the car in reverse gear. But for that action, the car door would not have traveled across plaintiff’s back, “popping” her spine. Accordingly, I conclude that the sole cause of the accident was the negligence of defendant Krushin.

Turning to the issue of quantum, I note that plaintiff has $1,693,068.59 in special damages alone, itemized as follows:

Past Medicals $ 69,456.59
Past Lost Wages 9,102.00
Lost Pension Benefits 52,796.00
Future Lost Wages 451,929.00
Future Medicals 1,109,785.00
TOTAL $1,693,068.59

Plaintiff’s past medicals include the following:

1. .Tulane Doctors 4,822.57
2. Ramp 2,498.30
3. Travel 255.22
4. Nurses 7,410.00
5. Other Doctors 2,288.50
6. Prescriptions 456.66
7. Catheters 125.03
8. Medical Supplies 205.14
9. Underpads 234.73
10. Ambulances $ 850.00
11. Wheelchairs, Body Jacket, etc. 2,023.38
12. Jo Ellen Smith Hospital 630.10
13. St. Dominic Hospital 833.71
14. Miss. Meth. Rehab. Center 24,308.30
15. Tulane Medical Center
a. 12/28/78 - 01/31/79 11,828.25
b. 05/23/79 - 06/05/79 (13 days) 3,866.48
c. 08/31/79 - 09/11/79 (11 days) 4,143.18
d. 10/13/79 - 10/20/79 (7 days) 2,408.84
TOTAL $69,456.59

Plaintiff’s 1978 income tax return indicated that she made $10,815.00 per year, or $901.25 a month. Accordingly, for a period of 10.1 months, plaintiff’s lost wages totaled $9,102.00.

In computing lost pension benefits, plaintiff’s expert used a increase rate to plaintiff’s base salary and a 5% discount rate. No inflationary figure was included. This amount totaled $52,796.00. No demand was made for loss of other fringe benefits. I note that plaintiff’s expert used very conservative factors; both the discount and inflation factors tended to favor the defense and are overwhelmingly fair amounts.

Plaintiff’s lost wages were computed by adjusting her base salary by 2½%;5 by a 3% inflation factor and by a 5% discount rate, resulting in the amount of $451,929.00.

Plaintiff’s future medical expenses are itemized as follows:

Hospitalization $ 584,184.00
In-Office Visits 24,818.00
Prescriptions 34,418.00
Incidental Expenses 179,962.00
Housekeeper 286,403.00
TOTAL $1,109,785.00

Because of plaintiff’s condition, she will require hospitalization 2.5 times annually for urinary tract infections at a cost of $3,517.00 per stay, or $8,792.00 annually. Using an 11½% inflation rate and a 10% discount rate, this amounts to $584,184.00.

Armantine will also incur in-office doctor’s fees at a cost of $525.00 per year. Using a 10% inflation rate and a 10% discount rate, this equals $24,818.00.

Prescription drugs have averaged $119.11 per month, or $1,429.00 per year. Using a 6.7% inflation rate and a 10% discount rate, this equals $34,418.00.

Incidental expenses include the following:

Miss. Methodist $600.00/yr. (2 checkups
Rehab. Ctr. per year)
Drugs during Hos- 563.00/yr. (2'/2 times
pitalization per year)
Daily Betadine Solution, Pads, Catheters 2,233.00/yr. ($186.10/mo.)
Irrigation Fluids 402.00/yr. ($35.20/mo.)
Urine Culture and Catheter Tray 240.00/yr. ($200.00/mo.)
TOTAL $4,078.00/yr.

Using a 9.7% inflation rate and 10% discount rate, this figure equals $179,962.00 present value.

Plaintiff also argued that she is entitled to a homemaker for 24 hours a week. At the standard wage of $5.20 per hour, this equals $6,490.00 annually. Using a 9.7% inflation rate and 10% discount rate, present value equals $286,403.00. Thus, plaintiff’s total special damages equals in present value $1,693,068.59.

Turning to the issue of general damages, I note that there is very little caselaw on cases of this magnitude as most multi-mil-lion dollar cases in Louisiana are settled prior to reaching the appellate level. Accordingly, I will examine the effect of the accident on plaintiff’s life.

Armantine was an active, 24-year old female. She enjoyed traveling and was especially fond of dancing. She was an excellent teacher and was active in her school’s extracurricular activities.

She is now permanently confined to a wheel chair and has no sensory or motor functions from the point of impact down. She has been advised not to have children and will never experience sexual fulfillment. She suffers chronic urinary tract infections and will require hospitalization 2.5 times annually. She will be under the continuing care of a battalion of physicians for the rest of her life. Obviously, she can no longer pursue her career.

Due to the loss of sensory and motor functions, plaintiff has no control over her excretory functions. She is required to perform complex and time-consuming self-catheterization and suppository inserts to relieve this problem. Additionally, she must suffer the embarrassment, humiliation, discomfort and danger of infection caused by seepage. She is subject to the possible formation of kidney stones and, potentially, loss of all kidney function due to infection. It is incredibly difficult for plaintiff to use restroom facilities away from home.

She is subjected to ongoing danger from skin breakdown which requires her to awake every night at regular two-hour intervals in order to change position.

She is unable to take a bath because her mother’s home does not have a bathroom designed to accommodate wheelchairs.

She cannot drive a car or enter or exit a car without help and cannot put her wheelchair into a car.

She was required to give up her apartment and return to the home of her retired and widowed mother. She is unable to do her laundry, cook, wash her hair or face, remove items from a refrigerator or chest of drawers, or dress herself. She has trouble traversing doorways and cannot move the wheelchair close enough to a table to enable her to eat in restaurants. She has not had a date since the accident.

In light of the tragic effects of this accident upon this plaintiff for her loss of lifestyle, past, present and future pain and suffering, for her embarrassment, humiliation, and total destruction of all the qualities and pleasures that make human life meaningful, I find that Five Million Dollars for general damages is an appropriate sum.

I do not consider the marijuana aspect of this case to be relevant.

For the reasons discussed, I would reverse the judgment of the district court and render judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be and hereby is judgment herein in favor of the plaintiff, Armantine Smith, and against the defendants, Jerry Krushin, Travelers Insurance Company and Sir Arthur Henry Chester, as representatives for certain underwriters at Lloyds in London, subscribing to Certificate No. 31527, in the full and true sum of SIX MILLION SIX HUNDRED NINETY-THREE THOUSAND SIXTY-EIGHT AND 59/ioo ($6,693,068.59) DOLLARS, subject to Traveler’s policy limits of one million dollars, excess to be paid under the Lloyds excess insurance, plus legal interest from the date of judicial demand until paid, and all costs of all proceedings herein.

      . Properly Lumbermens Mutual Casualty Company.

      . American Mark Distrib. Corp. v. Louisville & N. R. Co., La.App., 180 So.2d 869.

      . “We cannot conclude that in every case, because of the lapse of time in itself, a party denied production of a statement taken near the time of the event will be unfairly prejudiced in the preparation of his case or caused undue hardship or injustice.” (at page 959).

        . Ragas v. Argonaut Southwest Ins. Co., La., 388 So.2d 707; and prior cases to the same effect cited in Gonzales.

      . At the time of the accident Jerry Krushin, his co-worker, Claude Elowe, and Revonda Surrat were roommates. At the time of trial the threesome still resided together, although Re-vonda Surrat and Claude Elowe had married. Thus there are no truly “disinterested” witnesses to the accident.

      . Very rarely does this court see any objections other than “immaterial”, “irrelevant”, “prejudicial” or “hearsay.” The review of both law and facts exercised by Louisiana courts appears to deprecate the law of evidence in civil cases.

      . Krushin’s inability to hear this conversation is of crucial importance as the parties thereto were discussing leaving the vehicle. Revonda was also planning to exit from the car.

      . Armantine was thirty-three days short of attaining tenure at the time of the accident.

      . This is the average increase rate of the Jefferson Parish school teachers contract.

      . Due to the nature and extent of plaintiff’s injuries, I feel that a seven-days-a-week homemaker is appropriate; however, there is no present value for this contained in the record. Armantine is cared for by her retired, widowed mother.