text:
    Joseph H. GUILLORY v. STATE POLICE RETIREMENT BOARD.
    No. 14224.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Writ Denied Sept. 28, 1981.

      ■ Felix A. DeJean, III, Opelousas, for plaintiff Joseph H. Guillory.
    William J. Guste, Jr., Atty. Gen., William C. Toadvin, Staff Atty., Baton Rouge, for defendant State Police Retirement Bd.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This case presents the question of whether a state police officer whose heart condition was aggravated over a period of many years partly as a result of his employment in that office is entitled to disability retirement as one whose “injury” was sustained “in line of duty” under LSA-R.S. 40:1428(B)(2) or to disability retirement under LSA-R.S. 40:1428(B)(3) as one who is disabled as a result of a “continued illness”. The percentage of salary at which the disabled police officer is retired differs considerably, being 75% under (B)(2) and a floating percentage depending upon years of service under (B)(3), the greatest percentage being 60% and the smallest percentage being 30% under that subsection. The State Police Retirement Board and the District Court both determined that the retired police officer fell under (B)(3). We affirm.

The officer in question, Joseph Guillory, who was 36 years of age on December 28, 1978, and at that time weighed 242 lbs. and was 6’2” in height, was employed as a state trooper from July 1, 1973 to January 18, 1979. He sustained three heart attacks during this time, and underwent coronary bypass surgery. His personal physician, Dr. D. J. deBlanc of Opelousas, recommended that he not undertake further work as a state police officer because of his disabling heart condition. Guillory also suffers from obesity, a hiatal hernia, esophagitis, and ulcers. Dr. deBlanc found that Guillory’s condition was aggravated by his work as a state police officer. Dr. T. R. Kilpatrick, who examined Guillory at the Retirement Board’s request, also so found. We shall assume, as we indeed believe was the case, that Guillory’s heart condition was aggravated by the performance of his work as a state police officer.

The statute that applies in determining the percentage of pay Guillory is to receive as disability retirement is 40:1428. There are two parallel and inconsistent versions of that statute, which was amended by two Acts of the legislature in 1978. The later amendment controls, as it impliedly repealed the earlier amendment. LSA-C.C. art. 23; Dickerson v. Hennen, 249 So.2d 251 (La.App.2d Cir. 1971). We quote the later version as it stood at the time of Guillory’s retirement in 1979, before its subsequent amendment by La. Act No. 242 of 1980, Sec. 1:

“A. Eligibility for disability benefits, procedures for application for disability benefits, procedures for certification of continuing eligibility for disability benefits, the authority of the board of trustees to modify disability benefits, and procedures governing the restoration to active service of a formerly disabled employee are specifically described and provided for in R.S. 42:702 through R.S. 42:706.
B. The board of trustees shall award disability benefits to eligible members who have been officially certified as disabled by the State Medical Disability Board. The disability benefit shall be determined as follows:
(1) In case of partial disability from injury received in the line of duty, a monthly pension in the discretion of the board of trustees, of not less than the amount the officer would have received, disregarding age and years of service requirements, a pro rata portion of the minimum benefit if the years of service are less than the minimum required for retirement, had he retired under authority of R.S. 40:1426 or the date of this disability retirement, and of not more than seventy-five percent of his average salary, shall be paid to the disabled officer under the provisions of this Subpart.
(2) In case of total disability, resulting from injury received in the line of duty, a monthly pension of seventy-five percent of his average salary shall be paid to the disabled employee under the provisions of this Subpart.
(3)Any sworn, commissioned, law enforcement officer of the division of state police who is a member of the system who has become totally disabled or incapacitated because of continued illness or as a result of an injury received, even though not in the line of duty, but is not eligible for retirement under the provisions of R.S. 40:1426 may apply for retirement under the provisions of this Subsection. The employee shall be retired at thirty percent of his average salary for five or more years but less than ten years of service credit, forty percent of his average salary for ten or more years but less than fifteen years service credit, fifty percent of his average salary for fifteen or more years but less than twenty years service credit, and sixty percent of his average salary for twenty years and over service credit.”

Thus, if an “injury” which results in total disability is sustained in the line of duty, Subsection (B)(2) applies. If an “injury” not sustained in the line of duty is the cause of total disability, or if “continued illness” is the cause of total disability, then Subsection (B)(3) applies. Elements of both (B)(2) and (B)(3) total disability could be present here, if we take “injury” to mean simply “physical or mental harm”. Guillory did sustain some physical harm. Also, unquestionably, he had a “continued illness”, and thus fell under (B)(3). There must be a cut-off point, however, at which an injury is so insubstantially, slowly or imperceptibly received or sustained as a result of the employment that it is not an “injury” in and of itself, but a “continued illness.” An aggravation of a preexisting condition in cases of more precipitous development of the illness falls under (BX2) as an “injury”, and in cases in which the development was more gradual and less directly related to employment (or not related at all) falls under (B)(3) as a “continued illness”. We need not say precisely when (B)(3) begins to apply. Suffice it to say that a serious heart disease (accompanied by other serious medical conditions) which is aggravated over a period of many years partly as a result of the performance of one’s work as a state police officer, falls under (BX3), not (B)(2). Guillory is entitled to retirement pay only under (B)(3), as he falls within the category of police officers suffering from a “continued illness”. The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.

      . La. Act No. 532 and La. Act No. 727.

      . We herein apply “injury” solely to the present statute, as a category opposed to “continued illness”. We do not look to the definitions of injury used for other purposes, e. g. workmen’s compensation, where there is no category designated “continued illness”.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Thomas C. WYRE v. Thomas LOCKWOOD, Administrator of the Office of Employment Security; and, Custom Craft Mobile Homes.
    No. 14229.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Writ Denied Sept. 28, 1981.
    Guy Huard, Hammond, for plaintiff-ap-pellee, Thomas C. Wyre.
    James A. McGraw, Baton Rouge, for defendants-appellants, Employment Sec. and Custom Craft Mobile Homes.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This case involves a determination by the Board of Review for the Louisiana Office of Employment Security. The Board concluded claimant, Thomas C. Wyre, was disqualified from receiving unemployment compensation because he was discharged from his job at Custom Craft Mobile Homes due to his misconduct connected with his employment. Mr. Wyre was denied his unemployment benefits on October 11, 1979. He appealed this denial to the Appeal Tribunal and a hearing was held on October 30,1979, before Alden E. Howes, Referee. The employer, Custom Craft, was not present at the hearing and the only testimony presented was Mr. Wyre’s version of his dismissal. The referee rendered his decision on October 31, 1979, affirming the agency’s previous determination that the claimant had been fired for misconduct and was therefore disqualified from receiving unemployment benefits. La. R.S. 23:1601(2).

Mr. Wyre appealed to the Board of Review which, on December 21,1979, affirmed the decision of the appeals referee. He then appealed to the Twenty-first Judicial District Court which, in turn, upheld the action of the Board of Review. Following that, this appeal was filed.

The scope of review in cases such as this is well defined by La. R.S. 23:1634. The pertinent part of the statute reads as follows:

“In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.”

The only question of law presented is whether or not the claimant was afforded a fair hearing. We find the hearing was fair. The fact he was confronted with various hearsay evidence did not necessarily make the hearing unfair. We agree with counsel for appellant that the unsupported, unsworn statements of the employer were hearsay and should not have been admitted. Toliver v. F. C. Doyal, 297 So.2d 476 (La.App. 2d Cir. 1974). However, we do not find the claimant was unduly prejudiced by the introduction of these statements. Therefore, our only task is to determine if there was sufficient admissible evidence to support the factual conclusions of the review board. If we so find, we are mandated by La. R.S. 23:1634 to affirm the finding of the Board.

After carefully examining the testimony of Thomas Wyre, we are convinced the Board had sufficient evidence to conclude Wyre had been fired because of misconduct. He candidly stated he had refused to work as instructed. He testified he had been employed as a carpenter’s helper at $3.75 an hour and had later been promised a salary of $4.50 an hour for doing foreman’s work. After doing the foreman’s work for several weeks he discovered he was only being paid $4.00 an hour. He was dissatisfied with this wage and informed his supervisor he was going to return to work at his old job as carpenter’s helper at his old salary. On the second day of his return as a carpenter’s helper he was standing idle because he was unable to do a task without the help of some other men. He was asked by John Williams to help the plumbers assemble some pipe. Wyre refused, stating he was hired as a carpenter’s helper and not a plumber’s helper. He firmly told Mr. Williams he was not going to help the plumber and Williams asked him if he wanted to be fired. Wyre answered that it was up to him, “cause I wasn’t gonna put together no plumbing.” Mr. Williams sent for Mr. Noah Thomas. Wyre and Thomas had a heated discussion about the salary difference for the foreman’s job. At this point Wyre was told he was fired and to come get his check.

This court was called upon to interpret the word “misconduct” under La. R.S. 23:1601(2) in Atkins v. Doyal, 274 So.2d 438 (La.App. 1st Cir. 1973). We defined “misconduct” as follows:

“Misconduct sufficient to disqualify a claimant from receiving unemployment compensation has been consistently defined to mean an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules; a disregard of standards of behavior which the employer has the right to expect of his employee; or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.”

We cited Horns v. Brown, 243 La. 936, 148 So.2d 607 (1963); Payne v. Antoines Restaurant, 217 So.2d 514 (La.App. 4th Cir. 1969) and Heard v. Doyal, 259 So.2d 412 (La.App. 2d Cir. 1972).

Using this definition of misconduct we have no difficulty characterizing the behavior of Mr. Wyre as being a willful disregard of the employer’s interest as well as a disregard of the standards of behavior which the employer has the right to expect of his employee.

Mr. Wyre admitted he was standing idle for about thirty minutes while he waited for other men to be available to help him “roll the paper back.” Yet when he was asked to assist another worker who needed help, he refused because he was hired as a carpenter’s helper rather than a plumber’s helper. Considering the circumstances, that Mr. Wyre refused this task not while he was busy performing his own job but while he was standing idle waiting for others to help him, we find this behavior falls below the standard expected by a reasonable employer. There was obviously a great deal of team effort and cooperation involved in building these mobile homes. Many people were hired to do many specific tasks. Certainly it is not unreasonable for an employer to expect his employee to keep working whenever there are tasks to be done. We do not think the employee in this situation had the right to remain indefinitely idle when he could have been helping a co-worker.

For these reasons the judgment of the trial court is affirmed. Appellant is to pay all costs of these proceedings.

AFFIRMED.

      . La. R.S. 23:1601(2) reads in part as follows: “An individual shall be disqualified for benefits:

      (2) If the administrator finds that he has been discharged for misconduct connected with his employment such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work . .. equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.”

      . The defendant-administrator filed an answer and return in judicial review in which he recommended the decision of the Board of Review be reversed.


author: WATKINS, Judge.

text:
    Lillie Hughes WERTZ, Wife of/and Edward Wertz v. William M. ESTES and the Travelers Insurance Company.
    No. 14231.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      Mark Alan Jolissaint, Slidell, for plaintiff-appellee.
    France W. Watts, III, Franklinton, for defendant-appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for property damage to an automobile owned by Edward Wertz, plaintiff-appellee, divorced husband of Lillie Hughes Wertz, and for personal injuries sustained by Mrs. Lillie Hughes Wertz, plaintiff-appellee, in an automobile collision between a car driven by Mrs. Wertz and a car driven by the defendant-appellant William M. Estes and insured by The Travelers Insurance Company, defendant-appellant. The accident occurred at about 7:00 on the evening of February 14, 1979, on Pontchartrain Drive in Slidell, a five lane (middle lane for turning) highway.

On the day of the accident, but before the accident occurred, William M. Estes had bought the car he was driving when the accident occurred from his brother, Jimmie Estes. Jimmie Estes was insured against liability by Aetna Life and Casualty Company. William M. Estes was insured by Travelers. Plaintiffs sued Jimmie Estes, William Estes, Aetna and Travelers for property damage to Edward Wertz’s car and personal injury to Mrs. Wertz.

Accepting and acknowledging receipt of the sum of $10,500.00 from Aetna, Mrs. Wertz executed a receipt and release, on or about January 24, 1980 (the instrument is undated), releasing Jimmie Estes, William M. Estes, and Aetna from further liability, but expressly reserving her cause of action and right of action against Travelers. In furtherance of the receipt and release, a joint motion to dismiss was filed by counsel for both plaintiffs (although Edward Wertz had not executed the release) and counsel for Jimmie Estes and Aetna, and an order was signed dated February 26, 1980, dismissing Jimmie Estes, William M. Estes, and Aetna, but expressly reserving all of plaintiffs’ rights and causes of action against Travelers.

After trial on the merits on April 8, 1980, the trial court rendered judgment in favor of Edward Wertz “on behalf of the community existing” between him and Mrs. Wertz in the sum of $500.00 for damage to his car and in favor of Mrs. Wertz in the sum of $10,000.00, the policy limit of Travelers’ liability policy, for personal injuries she sustained, the judgment being rendered solely against Travelers. The trial court in written reasons stated that the release had not been introduced in evidence and was, in any event, ineffective, as plaintiffs reserved all rights and causes of action against Travelers. (The release was in fact attached as an exhibit to a deposition of Mrs. Wertz, and by stipulation of counsel in open court the deposition was introduced for the express purpose of introducing the release.)

We affirm, with one minor modification, the trial court’s judgment.

We have carefully read the transcript of testimony, and conclude, as the trial court found, that William M. Estes was solely to blame for the accident, and that Mrs. Wertz was not guilty of contributory negligence. The testimony of William M. Estes as to how the accident occurred we find unworthy of belief, as did the trial court, which had the benefit of observing the demeanor of witnesses. In any event, the determination of the trial court as to fault on the part of William M. Estes, and absence of contributory negligence on the part of Mrs. Wertz, was not clearly wrong or manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The receipt and release entered into before trial reserved all rights and causes of action of Edward Wertz and Mrs. Wertz against Travelers. Only Aetna, Jimmie Estes and William M. Estes were released.

William M. Estes was insured against liability by Travelers. Under Louisiana law, a liability insurer and its insured are co-debtors in solido. Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir. 1960).

The discharge of one co-debtor in solido discharges all the other co-debtors in solido unless the creditor has expressly reserved his rights against the other co-debtors. If he has so reserved his rights, the creditor must deduct the “part” of the debtor released from the total amount of the debt. LSA-C.C. art. 2203 (in paraphrase). This article has expressly been held applicable to a liability insurer and its insured. See Danzy v. U. S. Fidelity & Guaranty Co., 380 So.2d 1356 (La.1980).

However, the reasoning behind the rule that release of one co-debtor in solido effects a release of the other co-debtor is that, under the rules of solidary obligation, the right to contribution in favor of the co-debtor in solido not released against the released co-debtor is lost by virtue of the release. Therefore, if there are three joint tort feasors, each liable for one-third and two are released, the one not released can be held liable for only one-third of the total sum of damages, as his right to contribution has been lost. Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App.3d Cir. 1964); Wall v. American Emp. Ins. Co., 386 So.2d 79 (La.1980).

William M. Estes and Jimmie Estes were not joint tort feasors, nor were William M. Estes and his liability insurer, Travelers. Travelers, if cast in judgment, would not have a right to obtain contribution from William M. Estes. Thus, the rationale of LSA-C.C. art. 2203 does not apply to the release of William M. Estes. Travelers cannot claim a reduction of the total damages by William M. Estes’ “part” of the debt, as Travelers had no right to contribution from its insured, William M. Estes, as to one-half, or any portion, of the debt. The release of William M. Estes cannot have any effect upon the extent of Travelers’ liability.

Travelers contends that the sum paid Mrs. Estes by Aetna should reduce the extent of Travelers’ liability. We disagree, as Aetna was in no way even liable to Mrs. Wertz. We have carefully reviewed the record, and find no basis for liability on the part of Jimmie Estes, the seller of the car, or Aetna, his liability insurer. The sale of the car had taken place at the time of the accident, and thus only William M. Estes and his liability insurer, Travelers, were liable. An amount paid an insured party by an insurer which is not in fact liable is considered a pure gratuity, and does not reduce the extent of liability of the tort feasor or his insurer. Wall, supra.

Mrs. Wertz was divorced from Edward Wertz at the time of trial and awarding of judgment. A community of acquets and gains did not then exist between Edward Wertz and Mrs. Lillie Hughes Wertz, if indeed it had ever existed. (Mrs. Wertz was living in Slidell, Louisiana, and Mr. Wertz was living in Georgia at the time of the accident and at the time of the trial.) Therefore, judgment should have rendered for the destroyed automobile in favor of Edward Wertz individually, and not in favor of Edward Wertz “on behalf of the community existing between Lillie Hughes Wertz and Edward Wertz”, as stated in the trial court’s judgment.

The judgment of the trial court is, therefore, amended to render judgment for damages to the car (in the amount of $500.00) to Edward Wertz individually, and in all other respects the judgment of the trial court is affirmed, all costs to be paid by appellant, Travelers.

AMENDED AND AFFIRMED.


author: EDWARDS, Judge.

text:
    Joseph J. PIROSKO d/b/a Pirosko Enterprises and Career Personnel Services v. Dale BIGNER.
    No. 14232.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    J. R. Schmidt, Hammond, for plaintiff.
    L. B. Ponder, Jr., Amite, for defendant-appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Joseph J. Pirosko, d/b/a Piros-ko Enterprises and Career Personnel Services, brought suit against Dale Bigner on the ground that Bigner, having been provided with a job, failed to pay the fees owed under a contract existing between Pirosko and Bigner. From a judgment condemning defendant to pay $360.00 in fees, seven percent interest, twenty-five percent attorney fees and all costs, Bigner appeals.

A review of the record indicates that Bigner, seeking employment, entered into a contract with plaintiff. On October 26, 1978, Bigner accepted an “introduction card” from plaintiff putting defendant in contact with W. R. Engineering, with whom defendant subsequently accepted employment. Under their contract, defendant owed Pirosko $360.00 in employment fees.

Appellant’s contention that he never accepted the “introduction card” is without merit. Initially, defendant admitted to having signed for the card. In later testimony, he tried to recant. The trial court made a reasonable judgment of credibility with which we agree.

Appellant also urges that the written contract between himself and plaintiff does not control unless employment at a salary of $800.00 per month was accepted. There is no merit to this contention since the original contract only noted that defendant desired a salary of $800.00 per month. Appellant freely chose to accept a salary of $500.00 per month.

That appellant had sought employment with W. R. Engineering prior to the introduction from Pirosko is of no moment since provision eight of the contrary clearly states:

“My acceptance of your introduction takes precedence over any previous application I may have filed with an employer.”

Appellant’s post-trial exceptions of no cause of action and no right of action are without value.

For the foregoing reasons, the judgment appealed from is affirmed. All costs, both trial and appellate, are to be paid by Dale Bigner.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Cecil J. MULLINS and Delcia V. Mullins v. OUR LADY OF THE LAKE HOSPITAL, INC.
    No. 14234.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      Gary L. Keyser, Baton Rouge, for plaintiffs-appellants, Cecil J. Mullins and Delcia V. Mullins.
    Roger M. Fritchie, Baton Rouge, for defendant-appellee, Our Lady of the Lake Hospital, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiffs, Cecil J. Mullins and Delcia V. Mullins, filed this action against defendant, Our Lady of the Lake Hospital, Inc., seeking damages allegedly sustained as a result of a fall suffered by Mrs. Mullins while a patient in the hospital. After trial on the merits, the district court rendered judgment in favor of defendant and dismissed plaintiffs’ action. From this judgment, plaintiffs perfected the present appeal.

The facts which gave rise to this suit are briefly as follows: On February 27, 1978, Mrs. Mullins was admitted to Our Lady of the Lake Hospital for treatment of chronic pancreatitis. She was confined to a hospital bed which had side rails that could be raised or lowered.

On March 2, 1978, while still a patient at the hospital, Mrs. Mullins needed to use the bathroom. According to her testimony, she then used the call bell adjacent to her bed to ring for a nurse’s assistance. When the nurse failed to arrive, Mrs. Mullins attempted to get out of bed by herself. However, in so attempting, she fell on the floor and allegedly injured her back.

Mrs. Mullins remained in the hospital for treatment of pancreatitis until her release on March 9, 1980, and she did not complain of back injury during this time period. She was readmitted to the same hospital on March 14, 1980, complaining of pain in her lower back. Mrs. Mullins was diagnosed as having a herniated disc at the L-4 level of her back. She underwent surgery for a fusion of the herniated disc.

The district court rejected plaintiffs’ claim, finding that the back injury was not caused by her fall in the hospital. The district court also concluded that the hospital had not been negligent in its supervision of Mrs. Mullins.

Plaintiffs contend that the district court erred in its finding that the hospital did not breach its duty owed to Mrs. Mullins. In Ray v. Ameri-Care Hospital, 400 So.2d 1127, (La.App. 1st Cir., 1981), we summarized the duty of a hospital to its patients as follows:

“The rules regarding the duty of a hospital toward its patients are that a hospital is bound to exercise the necessary care toward a patient that his condition requires; the hospital’s duty extends to protecting a patient from dangers which may result from the patient’s physical and mental incapacities and from external circumstances peculiarly within the hospital’s control. Whether a hospital has breached its duty of care owed to a particular patient depends upon the facts and circumstances of the particular case. Richard v. Southwest Louisiana Hospital Association, 383 So.2d 83 (La.App. 3 Cir. 1980), writ denied, 385 So.2d 274 (La. 1980); Williams v. Sisters of the Incarnate Word of Galveston, Texas, 341 So.2d 1299 (La.App. 3 Cir. 1977). The standard of care required of a hospital does not require a ‘community standard’ in order to determine if a hospital is negligent under a particular set of circumstances. Richard v. Southwest Louisiana Hospital Association, supra; Bryant v. St. Paul Fire & Marine Insurance Co., [365 So.2d 537 (La.App. 3rd Cir. 1978)] supra.
“However, the hospital’s duty has been traditionally limited: a hospital is not an insurer of a patient’s safety, and the rules of care are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen. Goodeaux v. Martin Hospital, Inc., 333 So.2d 717 (La.App. 2 Cir. 1976), writ denied, 338 So.2d 295 (La. 1976); Guidry v. State, Department of Hospitals, 317 So.2d 222 (La.App. 3 Cir. 1975), writ denied, 320 So.2d 904 (La. 1975).”

As was pointed out by the district court in its written reasons, plaintiffs maintain that the hospital breached its duty in three respects: (1) in its failure to raise the side rails on the bed, (2) in its failure to promptly respond to Mrs. Mullins’ summons for assistance, and (3) in its failure to properly protect Mrs. Mullins while she was taking certain drugs. The district court concluded that plaintiffs failed to prove each of these assertions of the hospital’s negligence.

Nurse Heil was the first nurse to arrive at the scene of the accident. She testified specifically that the bed rails were in the up position at that time. She further testified that no call was received at the nurse’s station from Mrs. Mullins’ room.

Dr. Barry Scott, Mrs. Mullins’ treating physician, testified that the type and dosage of medicine-which Mrs. Mullins was taking would not significantly impair her senses. The district court, in written reasons for judgment, stated that Dr. Scott apparently felt it unnecessary to take any special precaution as a result of the prescribed medication.

Mrs. Mullins was admitted to the hospital on at least five (5) occasions: November 10, 1977; December 8, 1977; February 27, 1978; March 14, 1978; and May 13, 1978. The conflicting and confusing testimony can be attributable to these many admissions to the hospital.

Our review of the entire record convinces us that the trial judge made a reasonable evaluation of credibility and that there is sufficient evidence to support the factual findings of the district court in the above respects. Those findings are not clearly wrong, and we find no manifest error therein. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Moreover, we conclude that, under the facts and circumstances of the instant case, the hospital did not breach its duty of providing reasonable care to Mrs. Mullins in light of her particular condition. See Ray v. Ameri-Care Hospital, supra.

On appeal, plaintiffs contend that, even if the hospital is not found to be negligent, it should still be held liable under the doctrine of strict liability first espoused in Loescher v. Parr, 324 So.2d 441 (La. 1975). We find there is no merit to plaintiffs’ assertion. The basis of plaintiffs’ contention is that, if the bed rails were up, ipso facto, they had to be defective since Mrs. Mullins was able to get out of bed and injure herself. In making this assertion, plaintiffs rely heavily on Marquez v. City Stores Co., 371 So.2d 810 (La. 1979). We find that Marquez, supra, is easily distinguishable in that the injury in that case could not have occurred in the absence of the defective thing, while, in the instant case, Mrs. Mullins’ injury could have easily occurred without the bed rails being defective. Moreover, the record in this case is completely devoid of any evidence to suggest that the bed rails were defective. Hence, plaintiffs’ contention that the hospital is strictly liable in the instant case is untenable.

Having found that the hospital was neither negligent nor strictly liable for Mrs. Mullins’ injuries, a discussion of the issue of whether or not plaintiffs proved a causal relationship between Mrs. Mullins’ fall and her back injury is unnecessary.

For the foregoing reasons, the judgment of the district court is affirmed at plaintiffs’ costs.

AFFIRMED.


author: LEAR, Judge.

text:
    Jerry Royce BRISTER v. Mary Evelyn Ridout BRISTER.
    No. 14237.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Mary Evelyn Ridout Brister, in pro. per.
    R. Bruce Macmurdo, Baton Rouge, for plaintiff-appellee Jerry Royce Brister.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Defendant-appellant, Mary Evelyn Rid-out Brister, appeals the judgment of the trial court denying her alimony after divorce on the ground that the parties were mutually at fault.

Plaintiff, Jerry Royce Brister, filed suit for divorce, based on living separate and apart, without reconciliation, in excess of one year. Defendant answered and reconvened seeking a judicial separation on the ground of abandonment and an award of alimony. Plaintiff then amended his petition to allege defendant’s fault in the breakup of the marriage. After a trial of these issues, judgment was rendered in favor of plaintiff, granting him a divorce. The trial court also found the parties to be mutually at fault and denied defendant permanent alimony.

The spouse claiming alimony after divorce has the burden of proving freedom from fault. Moore v. Moore, 393 So.2d 822 (La.App. 2nd Cir., 1981); Brannon v. Brannon, 362 So.2d 362 So.2d 1164 (La.App. 2nd Cir., 1978); Smith v. Smith, 216 So.2d 391 (La.App. 3rd Cir., 1968); Sachse v. Sachse, 150 So.2d 772 (La.App. 1st Cir., 1963). And, it well settled that the issue of fault is a factual one, and the trial court’s findings in this regard will not be disturbed on appeal found to be manifestly erroneous. Pearce v. Pearce, 348 So.2d 75 (La. 1977); Moore v. Moore, supra.

The court’s oral reasons for judgment have been transcribed and are found in the record. In these reasons for judgment, the trial judge stated that the defendants attitude, which we find was longstanding and continuing, made it impossible for plaintiff to establish or pursue any type of proper or appropriate relationship with his family, including his mother and his children from a prior marriage. He also noted defendant’s “scathing denunciation” of plaintiff mother, which was contained in a letter written by defendant and introduced into evidence.

After fully and carefully examining this entire record, including the pleadings, documentary evidence, the transcribed testimony and the trial judge’s reasons for judgment, we find that ample evidence exists in this record to support the trial court’s conclusions and judgment. Defendant did not carry her burden of proof in establishing her freedom from fault. Rather, the evidence clearly indicates her serious and substantial fault in causing the breakup of the parties’ marriage.

For these reasons, the judgment of the trial court is hereby affirmed. Appellant is to pay whatever costs are legally assessable to her.

AFFIRMED.


author: PONDER, Judge.

text:
    Carlyn Hughes CAMELO v. George CAMELO.
    No. 14241.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rodney Cashe, Hammond, Hobart Par-due, Jr., Springfield, for plaintiff-appellant.
    Ronald Curet, Hammond, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Mrs. Carlyn Hughes Camelo has appealed the award of child custody to her former husband.

The sole issue is the propriety of that award. We affirm.

Mrs. Camelo was granted custody of the minor children, Christian and John Camelo in the separation. The divorce continued this award.

After hearing a rule for change, the trial court gave custody to the father but prohibited his taking the children from Louisiana. On appeal Mrs. Camelo contends that the trial court erred in finding that the father was the better guardian and that it was in the best interest of the minor children to grant their custody to him.

Mrs. Camelo met and corresponded with an inmate at St. Gabriel Prison. Upon his release from prison, the couple lived together out of wedlock. During this period, although John Camelo, appellant’s sixteen year old son, was in Mrs. Camelo’s legal custody, he began living with his paternal grandparents. The ten year old daughter, Christian, lived with her mother and Mr. Ryder when they first began to cohabit but was sent to her father’s house when the affair began to deteriorate.

The record further shows that for several years the mother had not been able to provide a stable environment for her child, Christian. She had little or no regular income of her own other than the child support payments and was therefore unable to provide wholesome living arrangements.

It is true that Mrs. Camelo has recently ceased to live with Mr. Ryder, that she is presently employed, or about to be employed, by her sister and brother-in-law, and that she has started to attend church. However, these major changes in her life occurred shortly prior to the hearing on the custody matter.

Mr. Camelo, although he had had a longstanding, respectable job at a bank, has recently left his job to follow the career of a professional poker player in Las Vegas. Despite this, however, it was shown that the home Mr. Camelo could provide had been stable, loving and religious for a period of years, and that his present wife is regularly employed. Although his choice of career is unusual, it is not illegal; and the record reveals that the family income is adequate.

Louisiana Civil Code Article 157 (as amended in 1979) establishes the standard to be used in determining the award of permanent custody. It states, in pertinent part:

“In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children; without any preference being given on the basis of the sex of the parent.”

The trial court is in a better position to determine the best interest of the child, based upon its closer view of the conduct and character of the parties. Traylor v. Traylor, 388 So.2d 70 (La.App. 1st 1980); Bride v. Thom, 378 So.2d 152 (La.App. 1st Cir. 1979); Howard v. Howard, 339 So.2d 1275 (La.App. 1st Cir. 1976). The environment under which the children have been living is a factor to be considered. Bordelon v. Bordelon, 390 So.2d 1325 (La. 1980); see also Dickey v. Dickey, 383 So.2d 808 (La.App. 1st Cir. 1980); Thornton v. Thornton, 377 So.2d 417 (La.App. 2nd Cir. 1979). The trial court may consider the fact that the major changes have only recently occurred in the appellant’s lifestyle, which time has not yet proven to be of a permanent nature. See Thompson v. Thompson, 382 So.2d 1036 (La.App. 2nd Cir. 1980).

The conclusion reached by the trial court in child custody cases is entitled to great weight and will not be disturbed unless there has been a clear showing of an abuse of discretion. Bordelon v. Bordelon, supra; Cleeton v. Cleeton, 383 So.2d 1231, on rehearing, (La. 1980); Schmidt v. Schmidt, 393 So.2d 381 (La.App. 1st Cir. 1980). We find that the trial court did not abuse its discretion.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are to be borne by appellant.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Phillip JACKSON v. CONTINENTAL CASUALTY COMPANY.
    No. 14245.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Writ Granted Sept. 18, 1981.

      Leo J. Berggreen, Baton Rouge, for plaintiff-appellant Phillip Jackson.
    Paul H. Spaht, Baton Rouge, for defendant-appellee Continental Assur. Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

Phillip Jackson, the plaintiff, has appealed the judgment of the trial court in favor of the defendant, Continental Assurance Company (referred to in plaintiff’s petition as “Continental Casualty Company”), dismissing the plaintiff’s demand for death benefits under a group insurance policy with Jackson’s employer. We affirm.

The relevant facts were stipulated by the parties and are not at issue on this appeal. The primary question before this Court is one of law, whether Beulah Jackson was the “legal spouse” of Phillip Jackson so as to make her eligible for coverage under the group life insurance policy in question.

The salient facts disclosed by the joint stipulation of facts are as follows: Phillip Jackson was a Louisiana State University employee prior to September 8, 1973, and all times material heréto, and was a participating member of the State of Louisiana Employees Uniform Group Benefits Program with premium deductions made directly from his paychecks. Life insurance in the group program was written by Valley Forge Life Insurance Company and its successor, Continental Assurance Company. On September 8, 1973, Jackson submitted an enrollment card for dependent life insurance, listing Beulah Jackson as his dependent spouse. Thereafter, deductions from his paychecks were made for these premiums. On July 9, 1979, Beulah Jackson died. When Jackson applied for death benefits, the insurer rejected his claim, denying any liability on the dependent coverage issue on the life of Beulah Jackson on the basis that she was not eligible for coverage because she did not qualify as a “dependent” under the policy, having never been lawfully married to Jackson. The insurer remitted all premiums paid by Jackson, but he has declined to accept them. Prior to her death, Beulah Jackson and Phillip Jackson, although “never legally married,” lived together in a “common law marriage” relationship for some thirty-five years. During all this time, Beulah Jackson was “economically dependent” upon Jackson. According to the agreed facts, Jackson is illiterate. Continental did not learn that the Jacksons were not married until after Beulah Jackson had died.

The insurance policy in question contains the following provision concerning persons eligible under the policy:

“Section III ELIGIBILITY
“All employees of the Employer who qualify under Statement # 5 of the application, and their dependents, if any, as defined in this policy, are eligible to become insured hereunder.
“Present dependents of the employees shall become eligible on the date the employee becomes eligible. Newly acquired dependents shall become eligible on the date that they acquire dependent status as defined in this policy.” (Emphasis added).

The subject policy defines “Dependents” as follows:

“Section VI DEPENDENTS
“The term ‘Dependent’, as used in this policy, means any of the following persons who are enrolled for coverage hereunder as dependents, provided they are not also covered as an employee:
“1. The insured Employee’s legal spouse residing with the employee.
“2. Any unmarried children fourteen (14) days of age and over but under nineteen (19) years of age residing with the employee and depending upon him for their support.
“3. Any unmarried children nineteen (19) years of age but under twenty-four (24) years of age who are enrolled as full-time students and who depend upon the employee for their support. . . . ” (Emphasis added).

In construing the insurance policy and the applicable statute, LSA-R.S. 22:175(B)(7), the trial court concluded that an insured employee could insure his “legal spouse,” but that neither the statute nor insurance policy extended coverage to “partners of a common-law union.”

Louisiana does not recognize the “common law marriage.” LSA-C.C. art. 88; Liberty Mutual Insurance Company v. Caesar, 345 So.2d 64 (La.App. 3 Cir. 1977), writ denied, 347 So.2d 1118 (La.1977). Hence, Beulah Jackson was not the “legal spouse” of Phillip Jackson. The lower court, following Harris v. Lumbermen’s Mutual Casualty Co. of Chicago, 48 So.2d 728 (La.App. 1 Cir. 1950), held that a “spouse” means “one’s wife or husband.” We agree. Inasmuch as Beulah Jackson was never the “legal spouse” of Phillip Jackson, she was not eligible for coverage under the subject group life insurance policy-

The appellant further argues that the insurer’s defense as to the ineligibility for coverage of Beulah Jackson is barred by the incontestability provision of LSA-R.S. 22:176(2), which reads:

“Incontestability: A provision that the validity of the policy shall not be contested, except for nonpayment of premiums, after it has been in force for two years from its date of issue; and that no statement made by an individual insured under the policy relating to his insurability shall be used in contesting the validity of the insurance with respect to which such statement was made after such insurance has been in force prior to the contest for a period of two years during such individual’s lifetime nor unless it is contained in a written instrument signed by him.” (Emphasis added).

As can be seen, the incontestability provision states that the validity of the policy shall not be contested; it does not say that coverage shall not be contested.

The distinction between “validity” and “coverage” has been judicially recognized. In Allison v. Aetna Life Ins. Co., 158 So. 389 (La.App. 2 Cir. 1935), modified on rehearing, 161 So. 645 (La.App. 2 Cir. 1935), the Court stated:

“As we understand the law, this limitation of contestability applies to questions involving the validity of the policy and not those involving coverage. Metropolitan Life Ins. Co. v. Conway, 252 N.Y. 449, 169 N.E. 642”. (Emphasis added).

This question was thoroughly reviewed in the case of Crawford v. Equitable Life Assurance Society of the United States, 56 Ill.2d 41, 305 N.E.2d 144 (1973), as follows:

“The courts of other States have considered a number of factual situations relating to eligibility, such as whether the insured is an employee at all, whether he was actively employed, whether he exceeded a specific maximum age, whether he was disqualified for some other reason, and whether he was incorrectly classified as to position. The decisions, which are collected in an annotation appearing in 26 A.L.R.3d 632, are not uniform in result. “The proposition that an insurer may challenge the eligibility of the insured has been advanced, either by direct holding or otherwise, with regard to the states of Arkansas, Idaho, Louisiana, Michigan, New Hampshire, Pennsylvania, Texas and Wisconsin, the decisions in some instances having been rendered by a Federal court called upon to ascertain and apply the law of the State in question. See Gill v. General American Life Insurance Co. (8th Cir. 1970), 434 F.2d 1057; General American Life Insurance Co. v. Charleville (Mo.1971), 471 S.W.2d 231; Pond v. Idaho Mutual Benefit Ass’n (1959), 81 Idaho 38, 336 P.2d 314; Allison v. Aetna Life Insurance Co. (La.App.1935), 158 So. 389, modified, 161 So. 645; Rasmussen v. Equitable Life Assurance Society of the United States (1940), 293 Mich. 482, 292 N.W. 377; Fisher v. Prudential Insurance Co. (1966), 107 N.H. 101, 218 A.2d 62; First Pennsylvania Banking and Trust Co. v. United States Life Insurance Co. (3d Cir. 1969), 421 F.2d 959; Carp v. California-Western States Life Insurance Co. (5th Cir. 1958), 252 F.2d 337; Spitz v. Continental Casualty Co. (1968), 40 Wis.2d 439, 162 N.W.2d 1.
“The contrary view has been taken with respect to California, Oklahoma, Utah, and West Virginia. See John Hancock Mut. Life Ins. Co. v. Dorman (9th Cir. 1940), 108 F.2d 220; Baum v. Massachusetts Mutual Life Insurance Co. (Okl. 1960), 357 P.2d 960; Cragun v. Bankers Life Co. (1972), 28 Utah 2d 19, 497 P.2d 641; Morris v. Missouri State Life Insurance Co. (1933), 114 W.Va. 278, 171 S.E. 740; Poffenbarger v. New York Life Insurance Co. (S.D.W.Va.1967), 277 F.Supp. 726.
“The rule originally announced in Georgia was that eligibility could not be challenged (Equitable Life Assurance Society v. Florence (1933), 47 Ga.App. 711, 171 S.E. 317), but a subsequent Federal decision applying Georgia law looks the other way (Washington National Insurance Co. v. Burch (5th Cir. 1959), 270 F.2d 300). Conversely, the New York view, as first expressed in a Federal decision, was that the insurer might raise the defense of ineligibility (Fisher v. United States Life Insurance Co. (4th Cir. 1957), 249 F.2d-879), but a subsequent decision in 1969 by the New York Court of Appeals holds to the contrary (Simpson v. Phoenix Mutual Life Insurance Co. (1969), 24 N.Y.2d 262, 299 N.Y.S.2d 835, 247 N.E.2d 655). It is the Simpson decision on which the appellate court principally relied in the case now before us.
“We, however, consider that the question of eligibility is one which relates to the risk assumed and that a defense based on lack of eligibility is therefore not foreclosed by an incontestability clause.
“It is, of course, true that eligibility may relate to circumstances existing at the inception of the contract (although it may also arise subsequently because of a change in employment status). It is also true that it may have been determined initially upon the basis of statements made by the insured or by his employer. And it may be assumed that whether a person is an employee or is a full time employee is a matter affecting the willingness of the insurer to assume the defined risk at the defined premium charge, since employment or active or full-time employment may protect the insurer against adverse selection. See Gregg, Group Life Insurance (2d ed.) 34r-36.
“A challenge to eligibility does not, however, involve an attack by the insurer on the validity of the master policy. The defendant is not seeking to set aside the policy because of the misrepresentations made and the only aspect of the insurance plan which is affected is the payment sought by a single beneficiary. Moreover, even as to that beneficiary, while the defendant may have relied on his representations as well as those of the decedent, the defendant’s success in this litigation does not require that the defendant establish the falsity of those representations as such. Had the plaintiff alleged that the decedent had been a full-time employee, instead of admitting that she was not, the defendant would of course have been put to his proof of ineligibility. But it would be the fact of eligibility or ineligibility which would be decisive, not what prior representations had been made on the subject.
“As we read Simpson, it represents a basic departure from the distinction announced in Conway between matters concerning validity, to which the incontestable clause applies, and the risk assumed, to which it does not. The court in Simpson takes the position that some matters which relate only to the risk assumed are nevertheless covered by the incontestable clause, namely those risks which could have been discovered at the time the contract was entered into. (See 24 N.Y.2d 262, 267, 299 N.Y.S.2d 835, 247 N.E.2d 655, 658). We consider that conclusion both inapplicable to the policy we consider here as well as unsuitable to the group insurance situation with its constantly changing body of insured employees.
“The incontestability clause of the policy, to begin with, provides only that the validity of the policy may not be contested, and, as we have seen, its validity is not disputed.”

We adopt the rationale of the Crawford case, and hold that in dealing with group insurance, the defense that the purported insured was never a member of an eligible class is not barred by the incontestability provision or clause. See also Home Life Insurance Company v. Regueira, 313 So.2d 438 (Fla.App. 2 Dist. 1975); Annot., 26 A.L.R.3d 632.

Garrell v. Good Citizens Mut. Ben. Ass’n, 204 La. 871, 16 So.2d 463 (1943), cited by the appellant, is distinguishable from the case at bar. In Garrell, the Court was not addressing the issue of whether a particular person was eligible for coverage under the insurance policy. The issue considered by the Garrell Court concerned whether the incontestability clause precluded the questioning of the amount claimed by the beneficiary for death caused by tuberculosis. The policy contained a provision whereby the insurer would pay only one-fourth of the policy amount in the event that the insured died from tuberculosis. The Court, in reading this provision together with the incontestability clause, held that this limitation of coverage was applicable only for the first two years of the policy. Unlike the instant case, there was no question as to whether the person insured was actually eligible for coverage, and the insured did not attempt to insure as a dependent someone who was ineligible to be an insured under both the policy and a specific Louisiana statute. Therefore, Garrell, which involved the question of whether a certain risk is covered, is distinguishable from the instant case, which involved the issue of whether a certain person was eligible to be an insured.

Appellant next argues that Phillip Jackson could neither read nor write. That is only one of the factors to consider. It has been stipulated that the booklet entitled “State of Louisiana Employees Uniform Group Benefits Program” was given to Phillip Jackson. This booklet defines “Dependent”, in relevant part, as: “The insured employee’s legal spouse.” Absent fraud, a person signing a written document is presumed to know its contents and may not avoid any of the obligations contained in the document by claiming he did not read or was unable to read the document. In Snell v. Union Sawmill Co., 159 La. 604, 105 So. 728 (1925), the Louisiana Supreme Court stated:

“If a party can read, it behooves him to examine an instrument before signing it; and if he cannot read, it behooves him to have the instrument read to him and listen attentively whilst this is being done.”

There is no allegation of fraud, and the record reflects no fraud; therefore, this argument is without merit.

Finally, the estoppel argument raised by the appellant is also without merit. The trial court specifically rejected this argument, and we do too. It is well settled that estoppels are not favored in our courts. See e. g. Harvey v. Richard, 200 La. 97, 7 So.2d 674 (1942); Twillie v. H. B. Zachry Co., 380 So.2d 747 (La.App. 4 Cir. 1980); LeBlanc v. LeBlanc, 80 So.2d 715 (La.App. 1 Cir. 1955). Further, one of the fundamental elements of estoppel is that the person against whom it is urged knew of the facts relied upon. United Gas Pipeline Company v. Bellard, 286 So.2d 109 (La.App. 3 Cir. 1973). In the instant case it has been stipulated that: “Continental Assurance Company was not aware that Phillip Jackson and Beulah Jackson were not married until subsequent to the death of Beulah.” Since the insurer did not have knowledge of the actual facts, the doctrine of estoppel is not applicable.

Therefore, for the above and foregoing reasons, the judgment of the District Court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.

      . LSA-R.S. 22:175(B)(7) reads:
      “Insurance under any group life insurance policy except those policies issued pursuant to Paragraph (3) of Subsection A of this Section, may, if seventy-five percent of the then insured employees or members who have eligible dependents elect, be extended to insure the spouse and minor children of the insured in amounts in accordance with the plan which precludes individual selection by the employees or members or by the employer or trustee and which may not exceed fifty percent of the amount of insurance on the life of the insured employee. Children of an insured who are full time students and who are under the age of twenty-four may be included as eligible dependents.”

      . The status as concubine, in popular language, “a common-law wife,” arises when a man and woman live together in a permanent relationship as husband and wife, although without benefit of matrimony or a putative marriage. Henderson v. Travelers Insurance Co., 354 So.2d 1031, 1033 (La.1978).


text:
    James Ashley LEE v. ALLSTATE INSURANCE COMPANY.
    No. 14246.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Stephen Wilson, Baton Rouge, for defendant Allstate Ins. Co.
    Vincent Paciera, New Orleans, for plaintiff James Ashley Lee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff, James Ashley Lee, appeals the summary judgment dismissing his claim against defendant, Allstate Insurance Company.

Suit was filed for damages for personal injuries allegedly sustained by plaintiff who was involved as a pedestrian in a hit and run accident with an unidentified automobile on February 19, 1978, in the City of Denham Springs, Louisiana. Mr. Lee filed suit against defendant alleging that Allstate was his uninsured motorist insurer. Defendant answered stating that there did exist a policy issued to Evelyn F. Lee, the plaintiff’s mother, but that plaintiff was not an insured thereunder.

Defendant moved for summary judgment arguing that plaintiff is not entitled to uninsured motorist coverage because he is not an insured, spouse of an insured, or resident of the insured’s household. The plaintiff opposed the motion, arguing that he is a resident of the insured’s household and, alternatively, that defendant wrongfully failed to provide coverage for him.

The law provides that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966. The burden of showing that there exists no genuine issue as to material fact is upon the mover for summary judgment. Any doubt is resolved in favor of a trial on the merits and against the granting of a summary judgment. Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So.2d 561 (La. 1978) and Morgan v. Matlack, Inc., 342 So.2d 167 (La. 1977).

Defendant filed no affidavit and failed to file the insurance policy or a copy thereof in the record of this suit. The only documents before the court are the pleadings and the depositions of plaintiff and his mother. Plaintiff’s petition and the depositions on file state that Allstate insured plaintiff’s automobile. Defendant has therefore failed to carry its burden of proof and summary judgment in its favor should not have been rendered.

For these reasons, the judgment of the trial court is reversed and set aside; Allstate Insurance Company’s motion for summary judgment against James Ashley Lee is denied; and the case is remanded to the district court for further proceedings according to law and consistent with the views expressed herein. All costs incurred in connection with the motion for summary judgment are taxed against Allstate, and all other costs are to await the final disposition of the matter.

REVERSED, RENDERED AND REMANDED.


text:
    Melvin WILLIAMS v. HOMCO INTERNATIONAL, INC., et al.
    No. 14249.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Gerald Bosworth, Houma, Earl G. Pitre, New Orleans, Glynn Voisin, Houma, for plaintiff and appellant.
    Francis G. Weller, New Orleans, for defendants and appellees.
    James Ryan, III, New Orleans, for petitioner in intervention (Transportation Ins. Co.)
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This case arose out of an industrial accident on July 8, 1976, in which plaintiff, Melvin Williams, sustained severe burns while in the course and scope of his employment with Homco International, Inc. at its plant in Houma, Terrebonne Parish, Louisiana. Suit was brought on October 26,1976, against his employer, Homco; the general supervisor of operations, William E. Alford; the plant operations manager, James Ott; and their insurer, Continental Casualty Company. The suit against Alford and Ott was an “executive officer” claim, based on the failure to provide the employee with a safe place to work. Homco and Alford were subsequently dismissed, leaving Ott, as “executive officer”, and Continental, as his insurer. From a judgment in favor of the defendants, Ott and Continental, dismissing Williams’ suit, the plaintiff has appealed. We affirm.

An employer has a legal duty to provide its employees with safe working conditions. Simmons v. Travelers Insurance Company, 295 So.2d 550 (La.App. 3 Cir. 1974), writ denied 299 So.2d 795, 796 (La.1974); Simon v. Black Lake Lumber Company, 127 La. 1071, 54 So. 354 (1911). This duty may be delegated by the employer to supervising personnel or executive officers. See Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4 Cir. 1970).

The rules pertaining to executive officer liability were set out in Canter v. Koehring Company, 283 So.2d 716 (La.1973), as follows:

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
“2. This duty is delegated by the principal or employer to the defendant.
“3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
“4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the' injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.” 283 So.2d at 721.

The record discloses that Horneo operated a pipecoating plant which employed about 20 employees, including defendant Ott and plaintiff Williams. Ott was initially employed as plant engineer and later became operations manager (which position he held at the time of the accident). Williams had worked at the plant for about four months when he left for other employment in the City of Houma; then he returned to work for Homco. He had worked about eight days as operator of a pipecoating oven when the accident occurred. Williams’ immediate supervisor was the pipecoating foreman, Ernest Antoine, who trained Williams in the job he was doing at the time of the injury. The pipecoating operation consisted of the spraying of electrically-charged powder on a heated pipe (as it moved through a semi-enclosed bin), a heating oven to heat the pipe to make the powder adhere to it, a cooling procedure, and an exit for the coated pipe.

The accident which caused the plaintiff’s injuries happened as Williams was performing part of the pipecoating operation: just as he stuck a 3-foot long metal pipe, which was an extension of an air pressure hose, into the spray bin through which pipe was moving and was being spray-painted elec-trostatically, there was an explosion and fire which resulted in the injuries to the plaintiff.

We have carefully read the record, and find that the “Reasons for Judgment” rendered by the trial judge correctly decide the issues presented in the case at bar, as follows (in part):

“This court had an opportunity to evaluate the testimony of each of the witnesses and the court is of the opinion, considering credibility judgments of each witness, that the following facts have been proven:
“On July 8,1976, an explosion occurred in the Homco Plant. Before and at the time of the explosion, Ott was the supervisor of the Homco Pipe Coating Plant. Ott had delegated to Martin and Antoine the duty to maintain the plant and train personnel in the use of the equipment within the plant. Clifford Martin was on vacation at the time of the accident and Ernest Antoine replaced him in his duties. “Plaintiff, Melvin Williams, was operating a powder bin in the plant. Unknown to Martin or to Ott, a certain procedure was used by Williams and Antoine to keep the powder used in the coating cabinet from accumulating in the cabinet. This procedure was testified to be the use of an air pressure hose to blow excessive powder away during the operation of the plant.
“This court is then of the opinion that the explosion was caused by the insertion of the air hose into the powder bin while the plant was in operation and this was done without the knowledge and consent of Ott. Ott had delegated to Martin and Antoine, both competent men and knowledgeable in plant operation and maintenance, the duty to maintain and instruct personnel in plant operation. Ott owed no further duty to Williams beyond this. Since Ott violated no duty owed to Williams, this court concludes that James Ott is not liable in damages.”

This case turns on the Canter principle that there is no liability on the executive officer who made, with due care, a delegation of his general responsibility for safety to a responsible subordinate. Downey v. Callery, 338 So.2d 937 (La.App. 4 Cir. 1976), writs refused, 340 So.2d 1389, 1390 (La. 1977).

The trial court determined that Ott was not liable as an executive officer of Homco, in that he had delegated his responsibilities with due care to a qualified and responsible subordinate. Our careful examination of the record in this case does not disclose manifest error in this conclusion of the trial court. Canter v. Koehring Company, supra. Accordingly, we affirm the judgment in favor of the defendants-appellees at the plaintiff-appellant’s costs.

AFFIRMED.

      . Williams alleged that James Ott owed him a personal duty to provide machinery and equipment fit for the purpose intended, i. e., pipe coating, and also to provide proper ventilation and fire control.


author: CHIASSON, Judge. LEAR, Judge,

text:
    Charles Joseph BERGERON v. ILLINOIS CENTRAL GULF RAILROAD COMPANY.
    No. 14250.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Writ Denied Sept. 28, 1981.

      Paul H. Due, Baton Rouge, and Glynn Long, Donaldsville, for plaintiff-appellee.-
    Boris F. Navratil, Jr. and J. Rodney Ryan, Baton Rouge, for defendant-appellant Illinois Central Gulf R. Co. and Walter M. Carlton.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This is a car-train collision suit involving the operator of the car, Charles Joseph Ber-geron, represented herein by his curator, Mitchell Bergeron; and defendants-appellants, Illinois Central Gulf Railroad Company, owner of the train; and its employee-engineer, Walter M. Carlton. The accident occurred on May 21, 1977, at 12:50 A.M. at the 8000 block of Choctaw Drive in the City of Baton Rouge.

Judgment was rendered in favor of plaintiff and against the defendants for $363,-836.34 after a four day trial in which the trial judge sat without a jury. Illinois Central timely moved for a new trial based on what it termed newly discovered evidence. Coupled with this motion was a motion to rescue the trial judge based on the existence of an attorney-client relationship between one of plaintiff’s counsel and the trial judge. The trial court heard and dismissed both motions rendering written reasons for its actions. These issues were specifically appealed by Illinois Central and we will dispose of these before considering the merits of the case.

For reasons hereinafter stated, we affirm the denial of these motions. First, the grounds for recusal of a trial judge under Louisiana Code of Civil Procedure Article 151 have been held to be exclusive. Southern Builders, Inc. v. Carla Charcoal, Inc., 357 So.2d 638 (La.App. 3rd Cir. 1978); Wm. T. Burton Industries, Inc. v. Busby, 348 So.2d 1328 (La.App. 3rd Cir. 1977); and Barham v. Barham, 337 So.2d 289 (La.App. 2nd Cir. 1976). Illinois Central states as its ground that plaintiff’s attorney is representing the trial judge in an unrelated matter. This is not one of the enumerated grounds and therefore the motion was correctly denied.

Second, a motion for recusal of a trial judge is to be made before trial of the matter or at least before judgment. La.C. C.P. Art. 154; Barham, supra; and McNeill v. Continental Casualty Company, 244 So.2d 693 (La.App. 4th Cir. 1971). In this case the motion for recusal was not filed until after rendition of the judgment. Therefore, the motion was untimely and should have been dismissed.

On the motion for a new trial, Illinois Central styles its motion in terms of newly discovered evidence. La.C.C.P. Art. 1972(2). On a motion for new trial based on newly discovered evidence, an affidavit verifying the allegations must be filed. La. C.C.P. Art. 1975 and McDonald v. O’Meara, 149 So.2d 611 (La.App. 1st Cir. 1962). No such affidavit accompanied this motion and the trial court should have dismissed the motion. Nevertheless, “newly discovered evidence” must be evidence important to the cause of the case and not obtainable before or during trial. La.C.C.P. Art. 1972(2).

The newly discovered evidence asserted by Illinois Central is the existence of an attorney-client relationship between the trial judge and one of plaintiff’s counsel. This is not evidence even relating to the cause of the case. The trial court was correct in denying the motion for a new trial.

On the merits, our independent review of the record establishes that the facts as found by the trial judge are correct and we approvingly quote therefrom the following:

“. .. On May 21, 1977, at approximately 12:50 a.m., Charles Joseph Bergeron was driving west on South Choctaw Drive in East Baton Rouge Parish. At this particular point, South Choctaw Drive runs almost due east and west, perpendicular to Airline Highway. Bergeron was approaching Airline Highway from the east. “South Choctaw drive is intersected, at a point east of Airline Highway, by a railroad spur track. This track crosses South Choctaw Drive at approximately a 45° angle, proceeding across the street in a northwesterly-to-southeasterly direction. “In addition to the spur track crossing South Choctaw, two other tracks run parallel to South Choctaw along its northern side: (1) an additional siding, or team track, running parallel to but never crossing South Choctaw; and (2) the main east-west line, also running parallel to but never crossing South Choctaw.
“On the night in question, railroad employees had just completed a switching maneuver which left a few cars on the main line, and had positioned the single switch-engine (locomotive) to cross South Choctaw for some additional switching of cars. The switch-engine began to back across the curving spur intersecting South Choctaw Drive.
“At about the same time, Bergeron had left the Villa Lounge, a short distance east of the railroad spur. He was proceeding along South Choctaw toward Airline Highway. At some point, he observed what he later described as a ‘black hulk’ in the roadway. He applied his brakes and left some 100 feet of skid-marks from the rear wheels before he collided with the locomotive. The point of impact on the locomotive, though subject to some dispute, appears to have been at about two thirds of the distance from rear to front, i. e., two thirds of the locomotive had passed the ultimate point of collision before the collision occurred. Bergeron’s vehicle apparently never left his proper lane of travel, and the point of collision was within his proper lane of travel.
“On the evening in question, the streets were dry and the skies were clear. The parties agree that the actual crossing was not marked by a ‘crossbuck’ or railroad crossing sign, though there was a crossing indicator some distance east of the crossing.
★ * * * * *
“Four railroad employees were involved in the maneuver that night: (1) J. M. Tullier, the engine foreman; (2) Walter M. Carlton, the engineer; (3) Quinn, a ‘helper’; and (4) Taylor, a ‘helper’. Tullier had been riding on the engine, but dismounted to protect the crossing of the locomotive on South Choctaw. He placed one ‘fusee’ or flare at the crossing, about ten feet west of the western rail. This was not the side from which Bergeron was approaching. He saw headlights approaching from the east. Then he turned his attention to the west. He had a lantern, but no radio or walkie-talkie. There were some walkie-talkies available, but only the crew members on the train had them, since there were not enough to go around. So far as his testimony indicates, Tullier did not communicate with the engineer about the vehicle approaching from the east. In fact, he took no further notice of the eastern side of the intersection until the accident occurred. “Carlton, the engineer, testified that he was on the east side (nearest Bergeron) of the locomotive as it backed across the spur. After positioning the locomotive so that it could back across the spur, he commenced that maneuver from a stopped position. He estimated his backing speed at one to three miles per hour, along the spur which the parties concede to have been a slight downgrade in the direction in which the locomotive was traveling. He began giving the standard crossing whistle at a point about 150 feet from the road, but did not complete it until the engine was ‘somewhere around the center line’ of the street crossing itself. This particular engine had only one whistle (horn), which faced the front of the engine, a direction somewhere between perpendicular and the direct opposite of the direction of the Bergeron vehicle.
“Carlton testified that while he was on the main line approaching the spur in question, he could see down South Choctaw to the east. And as he entered the spur, he still had vision to the east. But at a certain point, vegetation between the line and the spur, estimated to be ten to thirteen feet in height, obscured his vision. . . .
“At another point, Carlton testified in a similar fashion that he saw approaching headlights to the east before he got to the vegetation, but that during and after the obscuring of his vision by the vegetation, he no longer saw them. In fact, it appeared that once the locomotive began to occupy the crossing, Carlton did not look again to the east, but was looking at Tullier on the side of the road to the west.
“Both Carlton and Tullier in their testimony placed Quinn, the helper, at the back of the engine (i. e., the first part to reach the crossing). He was therefore in perhaps the best position to testify about the approaching Bergeron vehicle. He was present in the courtroom on the day of the trial, but was not called by defendant (his employer). (While the Court does not draw any unfavorable inference from defendant’s failure to call Quinn, it is of the opinion that the ‘equal availability’ exception to such an ordinary inference is not intended to cover an instance in which the individual is an employee of a party and would have to be called (if at all) on cross-examination by the opposing party.)
“The only other eyewitnesses to the events surrounding this accident were Bergeron (the injured driver) and Vallo (a friend of his in a following vehicle). Their testimony is similar on most points, though Vallo for obvious reasons remembers a good deal more about the incident than does Bergeron. The two had been at a crawfish boil sponsored by their employer for approximately four hours. They left that location about 10:00 p. m. or 10:30 p. m. and repaired to the Villa Lounge, where they played some pool with friends until after midnight. They departed the lounge at the same time, each to his respective abode. Vallo was following Bergeron in a westward direction on South Choctaw when the accident occurred.
“Vallo estimated his speed and Berger-on’s at 40 m. p. h. Though one of the defendant’s experts (Dart) speculated that a greater speed (55 m. p. h.) might have been the case, the poor condition of the road surface prior to the crossing makes such a speed very unlikely. Vallo did not see the ‘fusee’ in the roadway; though his windows were down, he heard no horn or bell. He saw the engine as it emerged from the bushes at the edge of the roadway, but saw no lights on it whatsoever. He saw one of Bergeron’s brake lights come on, and saw Bergeron’s vehicle strike the locomotive. When he reached the Bergeron vehicle, he noticed that the window on the driver side was down.
“Bergeron’s own version of the incident is similar, except that he remembered that a car turned onto South Choctaw and came toward him, causing him to dim his lights. So far as his testimony reveals, he saw the engine for the first time when it was in the crossing.
“A great deal of energy and time was spent by both sides on the issue of the alleged intoxication of Bergeron at the time of the accident. The evidence convinces the court that Bergeron had consumed some quantity of beer between the hours of 6:00 p. m. on the night of May 20 and 12:50 a. m. on the morning of May 21. The evidence does not convince the court that he drank any alcoholic beverage other than beer. The testimony of Bergeron himself, of Vallo, of a Villa Lounge employee, and of another lounge customer indicate that the total consumption of beer by Bergeron probably was two beers at the crawfish boil and a similar number at the lounge. No one testified that he appeared not to be in control of his vehicle. Though it is possible that his perception or reaction time might have been slowed by the consumption of alcohol, the defendant did not establish by a preponderence (sic) of the evidence that this was the case. Under the circumstances, the court concludes that the evidence of intoxication was insufficient, and that, even if sufficient, defendant failed to establish a cause-in-fact relationship between the degree of intoxication and the occurrence of the accident. * * *” (References to transcript omitted).

From these facts the trial court held the conduct of Illinois Central’s employees to be a cause-in-fact of the accident; the duty owed by the appellants encompassed the risk encountered by Bergeron; and there was a breach of these duties. The court found Illinois Central’s employees to be within the course of their employments and, as a result of the breach of their duties, the defendants-appellants were liable to the plaintiff for the damages sustained.

Of the duties found to be applicable by the trial court, three were statutory duties while four were found to be nonstatutory duties. The trial court determined the statutory duties consisted of: (1) La.R.S. 45:561, requiring the railroad to equip their engines with a bell and a whistle or horn which are audible at a distance of 300 yards; (2) La.R.S. 45:562, requiring railroads to maintain a “Railroad Cross Buck” sign at railroad crossings; and (3) La.R.S. 45:841 and 48:382 which require railroad companies to remove vegetation from the railroad’s crossing right of way. The breach of the nonstatutory duties, of conducting themselves as reasonably prudent persons under the circumstances, consisted of: (1) the engine foreman’s placing a single fusee on the western side of the track although he had seen headlights approaching from the east; (2) the failure to use the available walkie-talkies to communicate between the engineer and the engine foreman; (3) the failure to remove the vegetation if not required by statute; and (4) the failure of the engineer to look again to the east after clearing the vegetation in view of the fact that he had seen headlights from that direction before his vision was obscured by the vegetation. The court held that each of those duties were breached by the defendants and that the risk of harm encountered by the plaintiff was within the ambit of those duties. In addition, no policy considerations could relieve the defendants of these duties.

In regards to defendants’ contention that the plaintiff was eontributorily negligent, the trial court determined that the defendants failed to prove any contributory negligence or even if they had so proven, they failed to prove a casual relationship to the accident. It further held, even if the defendants proved contributory negligence, the defendants had the last clear chance to avoid the accident.

Defendants list four specifications of error which relate to their liability, but their arguments only attack certain findings of fact of the trial court. Their first argument is based on the finding that Illinois Central had not fulfilled its duty to warn approaching motorists of the train’s presence.

The only visible warning given to motorists that night was a single fusee placed on the western side of the tracks, even though Mr. Tullier testified that he saw headlights approaching from the east. We believe under these circumstances, Mr. Tullier’s- actions were not consistent with what a reasonably prudent person would have done. In addition, no other action was taken by Mr. Tullier to give any other warning to traffic approaching from the east. We feel this inaction on the part of this employee breaches the duty to protect and warn approaching motorists. Manuel v. Missouri Pacific Railroad Company, 264 So.2d 376 (La.App. 3rd Cir. 1972).

Other warnings to Bergeron were also not given, including the positioning of a “Cross Buck” sign at the crossing site, as well as the sounding of the horn or bell within the required statutory distance from the crossing. The evidence clearly establishes there was no “Cross Buck” sign at this particular crossing although the statute requires one. La.R.S. 45:562. In regards to the horn or bell signal, Mr. Carlton stated that he did not start his signal until he was into the spur track and only finished- it midway across the street. This also is in violation of the statutory requirement that a signal be given 300 yards in advance. La.R.S. 45:561. Failure to fulfill these statutory requirements, which are intended to give motorists advance warning of approaching trains, results in a breach of the duties owed to approaching motorists and renders the defendants liable. Watson v. Illinois Cent Gulf R.R., 355 So.2d 1366 (La.App. 1st Cir. 1978).

In their second argument, defendants aver Bergeron was negligent in failing to stop and look for trains at the crossing, especially since he had previously seen trains utilizing this crossing. This court in the Watson decision, supra, did not find any duty on a motorist approaching a crossing to stop and look in view of the legislative enactments of Revised Statutes 32:171 and 172. We follow that decision and find no negligence on the part of Mr. Bergeron on this contention.

The other acts of the plaintiff which defendants try to construe as contributory negligence, were found by the trial court to be without merit. The court determined that the alleged'act of speeding, intoxication, and defective brakes were not proven by the defendants. The findings made by the court as to Mr. Bergeron’s speed, state of intoxication and the condition of his brakes are supported by the record and are not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

defendants attempt to show contrary findings by reference to their expert witnesses and their testimony as to the facts surrounding the case. The trial court is vested with the discretion of accepting or rejecting expert testimony and unless found to be clearly wrong, it will not be disturbed on appeal. Guidry v. Davis, 382 So.2d 250 (La.App. 3rd Cir. 1980). There was conflicting expert testimony adduced by both sides and the trial court as trier of fact heard and evaluated all of the conflicting testimony. But the facts as testified to by the lay witnesses at the scene of the accident were more probative than was the opinion of any of the expert witnesses. We think the trial court was correct in the assessment of the witnesses and in the conclusions it reached.

For these reasons, the judgment of the trial court is affirmed at Illinois Central’s costs.

AFFIRMED.

LEAR, Judge,

concurring.

Defense counsel at oral argument conceded that no valid statutory ground for civil recusation could be asserted by defendants herein. The trial judge, accordingly, was eminently correct in denying the post-trial motion sought on the recusation basis.

I wish to go further, however, and state for the record that I fully subscribe to the observations made by the trial judge that under Article 151 of the Louisiana Code of Civil Procedure, a judge has a duty to sit and decide the cases assigned to him until a valid statutory ground for recusation is clearly established, and that the interests of justice in Louisiana would not be served if a qualified judge agreed to recuse himself at the slightest suggestion of any conceivable bias, especially when such suggestion is not made until after judgment has been rendered and signed in a particular case.

The trial judge in the instant matter was fully justified in fulfilling his duty to sit and to decide this case which was assigned to him. His findings of fact and conclusions derived therefrom, which are entitled ■to be accorded the same weight given to those of any other trial judge, clearly are in all respects supported by the weight of the evidence, and thus clearly warranted rendition of judgment in favor of plaintiff.


author: PER CURIAM.

text:
    Ronald G. MELON v. CAPITAL CITY PRESS d/b/a the State Times and Morning Advocate.
    No. 14251.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Mac Trelles, Jr., Baton Rouge, for plaintiff-appellant Ronald G. Melon.

      W. Luther Wilson, Baton Rouge, for defendant-appellee Capital City Press d/b/a The State Times and Morning Advocate.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   PER CURIAM.

Plaintiff filed this suit alleging that defendant had negligently published untrue reports of plaintiff’s arrest. Defendant thereafter filed a motion for summary judgment, which motion was granted by the trial court, and plaintiff’s suit was dismissed. In his appeal, plaintiff seeks review of that judgment.

At the hearing on defendant’s motion for summary judgment, which consisted entirely of argument by the parties, and in their briefs filed in this court, Exhibits A through and including I are referred to by the parties. These exhibits consist of certain depositions and the news release and published reports at issue.

In reviewing this case, we find that the record does not contain the motion for summary judgment and its supporting documents, nor are the above referred to exhibits included in the record.

In order to properly consider this appeal, it is necessary that the above referred to documents be included in the record for our review. Therefore, this case, and specifically the record herein, is hereby remanded to the Clerk of Court for the Nineteenth Judicial District Court, Parish of East Baton Rouge, Louisiana, for completion in accordance with the above.

The costs of this appeal will be determined upon a final disposition.

REMANDED.


text:
    Mark ABRAHAM v. Ronald NAUL, et al.
    No. 14252.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    George Bayhi, Baton Rouge, for plaintiff-appellee Mark Abraham.
    Robert J. Vandawdorker, Baton Rouge, for defendant-appellee Southern Farm Bureau Ins. Co. and' Robert M. Naul.

      Carolyn Pratt Perry and Daniel J. Dzui-ba, Baton Rouge, for defendant-appellant Aetna Casualty and Surety Co.
    Stephen R. Wilson, Baton Rouge, for third party defendant-appellee Coleman Oldsmobile.
    Boris F. Navratil, Baton Rouge, for third party defendant-appellee Winnebago Industries.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This action commenced as a suit for damages brought by Mark Abraham against the tortfeasor, Ronald M. Naul, his liability insurer, Southern Farm Bureau Casualty Insurance Company, and Abraham’s underin-sured motorist insurer, Aetna Casualty & Surety Company for personal injuries and property damages allegedly caused when Naul’s vehicle negligently, encroached into Abraham’s lane of traffic on a four-lane highway. Subsequently, Aetna filed third party demands against Naul and his liability insurer, Southern Farm Bureau Casualty Insurance Company, the dealer, Coleman Oldsmobile, Inc. and the manufacturer, Winnebago Industries, Inc. Essentially, the basis for the third party demands was that Coleman was liable for negligently failing to properly close the engine cover prior to delivery, or Winnebago was liable under products liability for manufacturing a defective product. Both Coleman and Winnebago filed peremptory exceptions, which were sustained by the trial judge and the third party demands dismissed at Aetna’s costs. Aetna appealed.

We affirm; under the holding of Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La. 1979), as followed by Bond v. Commercial Union Assurance Companies, 387 So.2d 617 (La.App. 3 Cir. 1980), the UM insurer has no rights under LSA-R.S. 22:14Q6D(4) other than the right to reimbursement from any proceeds which the insured actually recovers from the underin-sured tortfeasor; consequently, the trial judge was correct in maintaining the peremptory exceptions. Costs are assessed against the appellant.

AFFIRMED.

      . Southern Farm Bureau was also dismissed on a peremptory exception under the theory that an underinsured motorist insurer, such as Aet-na, has no cause of action against the liability insurer of the tortfeasor. Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La. 1979).


text:
    Ernest C. WILLIAMS, et ux. v. AETNA INSURANCE COMPANY, et al.
    No. 14253.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.

      David W. Robinson, Baton Rouge, for plaintiff-appellees Ernest C. Williams and Helen S. Williams.
    A. O’Neal Walsh, Baton Rouge, for defendants-appellants Aetna Ins. Co. and Mary E. Parker and Lucy J. Reynolds d/b/a The Golden Quill.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This is a slip and fall case in which the trial court found the defendants, Mary Evelyn Parker and Lucy J. Reynolds, d/b/a The Golden Quill and their liability insurer, Aet-na Insurance Company, liable for the injuries sustained by plaintiff, Mrs. Helen Williams. The trial court awarded the plaintiffs, Ernest C. Williams and Helen Williams, $4,812.13 for special damages and $22,500.00 for general damages. The defendants appealed the ruling and the plaintiffs have answered the appeal.

The incident occurred at The Golden Quill, a commercial establishment on Tara Boulevard in the City of Baton Rouge. Mrs. Williams testified that she had been to this particular business establishment on a number of occasions without any incident. On the day in question she had entered the store, browsed around for a few minutes and then exited the store. She exited through the front door and proceeded down the porch to the walkway where she fell when she did not notice a five inch drop from the porch to the walkway.

The walkway and the front porch of the building consisted of a uniformed brick layout. The porch was 95/2 inches wide and approximately 371/2 inches deep and led from the front door to the symmetrically similar brick and mortar walkway which is five inches below the porch level.

The trial court, at the conclusion of the testimony, followed the duty/risk analysis by first finding that Mrs. Williams injured herself in a fall at the step down location. It next found the applicable duty to be “that the business proprietor has a duty to provide for a step down such as this where one can safely negotiate the step down by the exercise of ordinary care.” It concluded that the defendants were liable since the step down was a hazard and was allowed to remain there by the owners.

Defendants argue on appeal that the porch was not a hazard and, in the alternative, that the plaintiffs failed to prove that the defendants knew or should have known that it was a hazard. They also contend that this is a negligence case and not one of strict liability citing the cases of Magoni v. Wells, 154 So.2d 524 (La.App. 4th Cir. 1963); Jopling v. Short Cut White Kitchen, Inc., 204 So.2d 128 (La.App. 1st Cir. 1967); and Vidrine v. Dupre, 204 So.2d 418 (La.App. 3rd Cir. 1967). Finally, they aver that Mrs. Williams was contributorily negligent in failing to look for a step that she knew or should have known was in her path and that this was the cause in fact of the accident.

Plaintiffs maintain that this is a strict liability situation under Civil Code Article 2317 and the recent Supreme Court cases construing that article, especially Hunt v. City Stores, Inc., 387 So.2d 585 (La. 1980); Jones v. City of Baton Rouge, Etc., 388 So.2d 737 (La. 1980); Reinhard v. City of New Orleans, 371 So.2d 286 (La. 1979); and Wall v. Village of Tallulah, 385 So.2d 905 (La. 1980). Plaintiffs have abandoned their answer to the appeal seeking an increase in the amount of general damages but they are still seeking to have a $45.00 bill for a doctor’s report taxed as court cost under La.R.S. 13:3666 as amended in 1980.

The cases cited by the defendants provide that the duty owed by the property owner is one of reasonableness and of ordinary care for the safety of its patrons. The proprietor of a business establishment is not the insurer of the safety of its patrons. In regard to the duty owed concerning steps, the defendants point to the Magoni decision, supra, which states: “her duty to the plaintiff was to provide steps which could be negotiated in safety by the exercise of ordinary care by the user.”

The defendants also point to the language in the Jopling case, supra, at page 133 where this circuit held:

“We feel that the rule of law that where there are no defects, and the building is sound structurally, or no hidden dangers or traps, a person is excluded from recovery where she was injured as a result of her own negligence in not seeing or observing the conditions which would create the hazard when she had an ample opportunity to do so. * * * ”

We do not find the rulings of law in those cases to be inapplicable to our situation, but the factual circumstances of this case warrant a different result. In our case, the porch and the walkway were of the same material and presented a view of one continuous walkway without interruption. The pictures introduced into evidence bear this fact out. One of the experts testified that the construction created an optical illusion. A person exiting from the doorway, although observant, would get this deceptive view. This distinguishes this case from the Magoni case, where Mr. Magoni could observe other objects at different levels.

The trial court found that the description of the porch and walkway by another expert to be a correct interpretation of the area in that it was “the most beautifully camouflaged hazard he has seen.” We find that this deceptive view constituted a hidden danger or a trap. With this finding, we hold that the defendants breached their duty of providing a step that could be negotiated safely with the exercise of ordinary care.

Defendants argue that since Mrs. Williams visited the business establishment on prior occasions and entered the building a few minutes before the accident, she was aware of the step. They contend that Mr. Magoni was faced with a similar flooring on two levels in his case and the trial court dismissed the suit. As stated above, there were sufficient objects to observe in the Magoni case to distinguish the different levels, unlike the situation here.

The trial court also found in this case that plaintiffs are not required to remember how many or what type of steps each store has that they visit. The steps should not constitute a trap to those who do look but are prevented from observing the step because of the manner in which it is constructed. In addition, we find that there was no proof that Mrs. Williams was not looking or observing the conditions of the walkway. With reference to the porch and walkway, she testified:

“Well, I wasn’t thinking about a step for one thing, and another reason is, it’s all the same thing. It just looks like bricks all the way, and I thought it was just the same thing.”

There was nothing at this spot to indicate to her or put her on notice that she was about to step down. We do not find any negligence on the part of Mrs. Williams.

As to quantum, neither party takes issue with the award of general damages. Defendants do challenge the award for special damages on the ground that Mr. Williams did not testify as to these expenses at the trial. The only testimony regarding the expenses was by Mrs. Williams. We find no error in the ruling of the trial court allowing the bills to be filed in evidence based on Mrs. Williams’ testimony. A plaintiff does not have to testify to prove his case but need only produce witnesses who can testify as to his claim. Mrs. Williams testified she had knowledge of the expenses incurred because of her injury and she had handled the bills connected therewith. She was therefore competent to testify as to the bills.

The final matter to be disposed of is plaintiffs’ claim that a $45.00 bill for a doctor’s report submitted in lieu of the doctor’s testimony be taxed as court cost under La.R.S. 13:3666 as amended by Act 618 of 1980. The statute was amended in 1980 and went into effect on September 12,1980. Under Civil Code Article 8 and La.R.S. 1:2, statutes are not retroactive unless expressly stated. In this case, no mention is made in Act 618 of 1980 as to its retroactivity. The only other exception to this rule applies to a statute which is either procedural or remedial in nature. We find this statute to be substantive in nature. Therefore, the court was correct in sustaining the objection as to the filing of the bill. See Johnson v. Fournet, 387 So.2d 1336 (La.App. 1st Cir. 1980).

For the reasons assigned, the judgment of the trial court is affirmed at defendants’ costs.

AFFIRMED.