text:
    Raleigh J. CLEMENTS, Individually and as Administrator of the Estate of Lane Clements and Jeanette Clements v. STATE DEPARTMENT OF HEALTH, SOCIAL & REHABILITATION SERVICES, Division of Charity Hospital of Louisiana in New Orleans.
    No. 10963.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    Writ Refused Feb. 13, 1981.

      Terry A. Bell, New Orleans, and Darryl J. Carimi, Gretna, for plaintiffs-appellants.
    H. M. Westholz, Jr., New Orleans, for Louisiana Department of Health and Human Resources, defendants-appellees.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, for Dr. Gary Arnold, et al., defendants-appellees.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

Lane Clements died on June 5, 1973 while receiving medical care at Charity Hospital in New Orleans. His parents timely filed a suit for malpractice against the hospital (i. e., the appropriate state department) on June 5, 1974. Almost four years later, on June 1, 1978, plaintiffs filed an amended petition joining as defendants the alleged treating physicians, Dr. Gary Arnold and Dr. John H. Kuzman, and Employers Mutual Liability Insurance Company of Wisconsin, their liability insurer, alleging those physicians were joint tort feasors with the hospital in causing the death of Lane Clements.

Plaintiffs have appealed from a trial court judgment maintaining pleas of prescription filed by Arnold, Kuzman and Employers Mutual and dismissing plaintiffs’ suit against those defendants.

Under Civil Code Article 2097 and our settled jurisprudence a timely filed suit against one defendant interrupts prescription against all others who are sued later and are liable in solido with the originally sued defendant. Plaintiffs also correctly contend the two added individual defendants and their liability insurer are soli-darily liable for negligence on the part of those individuals.

Appellees concede that in ordinary cases the effect of Civil Code Article 2097 is to render prescription “unlimited” as to all solidary obligors once timely suit is filed against one of them, and prescription cannot successfully be pleaded by a later added solidary obligor irrespective of the number of years which have passed since the timely filing of the original suit. However, they contend, and the judgment appealed from appears to be based on that contention, that this rule has been abrogated by R.S. 9:5628 which provides:

“A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.” LSA-R.S. 9:5628.

Appellees argue that the here critical phraseology is in Section A of the statute, which provides: “. . . in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.” (emphasis ours); that the phrase “in all events” is peremptive in nature and eliminates later suits against physicians, including those who are solidary obligors with persons timely sued; that the three year peremptive period extinguishes the claim and is not merely a procedural bar to its assertion; that this peremptive period is a statement of legislative intent and policy to encourage the practice of the medical arts by eliminating what they call “the long tail of potential liability” which endangers the medical profession; and that, especially in view of its repealer clause in Act No. 214 of 1976, section 3, which states: “All laws or parts of laws in conflict herewith are hereby repealed, ... ”, the statute impliedly repeals Civil Code Article 2097 insofar as that article conflicts with the legislative intent of providing a definitive end of physicians’ liability. We do not agree.

While statutes of limitation are remedial in nature and as such are generally accorded retroactive effect in the absence of language showing a contrary intention, both state and federal constitutions prohibit them from being applied retroactively so as to deprive a person of a vested right unless they allow a reasonable time for those affected by the statute to assert their rights. A right is vested when “the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete and unconditional, independent of a contingency, and a mere expectancy of future benefit . .. does not constitute a vested right.”

In the instant case, as we have said, suit was filed against the original defendant on June 5,1974, more than a year prior to the September 12, 1975 effective date of R.S. 9:5628. At the time the suit was filed against the original defendant plaintiffs acquired a vested right, i. e., an absolute, complete and unconditional right, independent of any contingency, to make appellees party defendants as solidary obligors without being barred from doing so by prescription or peremption. Thus, as R.S. 9:5628 does not allow a reasonable time for those affected by the statute to assert their rights, the statute cannot validly deprive plaintiffs of that right, regardless of what may have been the intent of the legislature.

For the reasons assigned, the judgment appealed from is reversed, the pleas of prescription are overruled, and this case is remanded to the trial court for further proceedings in accordance with law and with the views herein expressed. Defendants-appellees are to pay all costs of this appeal. All other costs are to await a final determination.

REVERSED AND REMANDED.

      . After the amended petition was filed, and prior to plaintiffs’ appeal, Raleigh H. Clements died and his then major children, Curtis A. Clements, Alice Theresa Clements and Wayne John Clements were substituted as plaintiffs in his place. His wife, Jeanette Clements, remained a plaintiff, individually and on behalf of the two minor children.

      . LSA-C.C. Art. 2097 reads: “A suit brought against one of the debtors in solido interrupts prescription with regard to all.”

      . Fontenot v. O’Brien, La.App., 361 So.2d 298; Wick v. Sellers, La.App., 309 So.2d 909; Hooper v. Wilkinson, La.App., 252 So.2d 137; Sharp v. Massey-Ferguson, Inc., La.App., 153 So.2d 508; and Franks v. City of Alexandria, La.App., 128 So.2d 310.

      . Plaintiffs cite Pearson v. Hartford Accident & Indemnity Company, La., 281 So.2d 724, and Hidalgo v. Dupuy, La.App., 122 So.2d 639.

      . Act 808 of 1975 as amended by Act 214 of 1976.

      . See Burmaster v. Gravity Drainage Dist. No. 2, La., 366 So.2d 1381.

      . Lott v. Haley, La., 370 So.2d 521, and cases cited therein.

      . Tennant v. Russell, 214 La. 1046, 39 So.2d 726; Berteau v. Weiner Corp., La.App., 362 So.2d 806, 808.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Eva B. GEX and Reuben Hall v. John DOE and Cumis Insurance Society, Incorporated.
    No. 11309.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Writ Refused Jan. 26, 1981.
    Murray, Murray, Ellis, Braden & Landry, Stephen B. Murray, New Orleans, for plaintiffs -appellants.
    Porteous, Toledano, Hainkel & Johnson, Henry Leon Sarpy, Daniel R. Hynes, New Orleans, for defendants-appellees.
    Before REDMANN, GULOTTA and BARRY, JJ.
   GULOTTA, Judge.

In this damage suit plaintiffs seek recovery against the defendant insurer under the uninsured motorist provisions of a policy covering Richard L. Gex, who was killed in an automobile accident. Gex was driving his insured automobile at the time of the accident and Reuben Hall was an injured guest passenger. The trial judge dismissed the suit against the insurer on an exception of no cause of action. Plaintiffs appeal. We affirm.

The petition alleges that while plaintiffs were traveling in the center lane in an easterly direction on 1-10 in the city of New Orleans, an automobile driven by an unknown driver swerved into the path of an automobile driven by Carl E. Tant. Tant in turn swerved into the path of the Gex automobile, causing Gex to lose control of his automobile and strike the left concrete median. Nowhere in the petition is it alleged that any physical contact occurred between the unidentified vehicle and the Gex automobile or, indeed, among any of the automobiles. Based on this failure to allege either physical contact or the identity of the operator of the alleged uninsured phantom vehicle, the defendant insurer claims, in the exception, the petition fails to allege a cause of action under the uninsured motorist provisions of the policy.

In the judgment maintaining the exception, the trial judge relied on a decision from this court in Collins v. New Orleans Public Service, Inc., 234 So.2d 270 (La. App. 4th Cir. 1970), writs refused 256 La. 375, 236 So.2d 503 (1970).

Plaintiffs contend the requirement that they must allege and prove physical contact between the insured automobile and the vehicle driven by the unidentified driver to invoke the uninsured motorist provision of the policy circumvents the legislature’s purpose in enacting uninsured motorist coverage.

Plaintiffs claim the definition in the policy of an uninsured highway vehicle is one upon which there existed no liability bond or insurance coverage at the time of the accident or where the highway vehicle was a “hit-and-run vehicle.” According to plaintiffs, “hit-and-run” driving is defined under R.S. 14:100 as “the intentional failure of the driver of a vehicle involved in or causing any accident to stop such vehicle at the scene of the accident, to give his identity and to render reasonable aid.” (Emphasis added). Plaintiffs argue, therefore, notwithstanding the definition of “hit-and-run vehicle” in the policy as a highway vehicle which causes injury to the insured arising out of “physical contact”, because the statute defining hit-and-run driving includes a vehicle involved in an accident or one “causing any accident,” the insurance policy restricts the uninsured motorist coverage and circumvents the statute requiring this coverage. Plaintiffs further argue that innumerable other states do not make the requirement of physical contact to invoke uninsured motorist coverage.

We find no merit to these arguments. This court in Collins v. New Orleans Public Service, Inc., supra, was presented squarely with the issues presented to us in the instant case. The language relating to uninsured motorist coverage in the policy in the Collins case is substantially the same language as the policy in our case. The arguments addressed by the plaintiffs in that case were similar to those made in the instant case. This court, in Collins, affirmed the trial court’s judgment dismissing plaintiffs’ suit on a motion for summary judgment. In the denial of the writ application in the Collins case, the Supreme Court stated:

“On the facts found by the Court of Appeal, there is no error of law in its judgment.”

In Oliver v. Jones, 370 So.2d 638 (La. App. 4th Cir. 1979) this court was again confronted with the argument that the “physical contact” provision of the uninsured motorist portion of the policy was contrary to public policy. In the Oliver case, this court’s panel cited with approval the holding in the Collins case, and also cited with approval holdings in other circuits which are in accord with the Collins decision. The Supreme Court granted writs in the Oliver case and, in a per curiam opinion affirming our decision, stated:

“Having made a thorough examination of the case, we have concluded that the opinion of the court of appeal, 370 So.2d 638, reaches the correct result. We therefore affirm the judgment of the intermediate court.” 376 So.2d 1256.

Because we find the Collins and Oliver decisions controlling of issues raised in the instant appeal, and supportive of the trial court’s judgment maintaining the exception of no cause of action, we affirm the judgment of the trial court. However, where a peremptory exception has been maintained opportunity shall be afforded to amend, if a party can remove, by amendment, the objection pleaded. LSA-C.C.P. art. 934.

Accordingly, we remand this matter to permit plaintiffs the opportunity to allege facts indicating that the phantom vehicle was an uninsured highway vehicle as defined in the policy. The assessment of costs is to await final determination of the litigation.

AFFIRMED AND REMANDED.

      . The relevant portions of the policy are as follows:
      “Protection Against UNINSURED MOTORISTS COVERAGE: The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; * * *”
      “ ‘uninsured highway vehicle’ means:
      (a) a highway vehicle with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder, or (b) a hit-and-run vehicle;
      “ ‘hit-and-run vehicle’ means a highway vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such vehicle; * * ” (Emphasis added.)

      . R.S. 22:1406(D)(1)(a) reads as follows:
      “(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.”

      .The relevant provisions of the policy in Collins were essentially the same as in this case:
      “In pertinent part, the insurance contract in suit: * * *
      2. Defines ‘uninsured automobile’ as: ‘ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident * * *; or (2) a hit-and-run automobile as defined; * * ’; and
      3. Defines ‘hit-and-run automobile’ as follows: ‘ “hit-and-run automobile” means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or owner of such “hit-and-run automobile”; * * * ’ (Emphasis added).”

      . See Hensley v. Government Emp. Ins. Co., 340 So.2d 603 (La. App. 1st Cir. 1976); Tyler v. State Farm Mutual Automobile Ins. Co., 290 So.2d 388 (La. App. 2nd Cir. 1974); and April v. Millers Mutual Fire Insurance Co. of Texas, 273 So.2d 50 (La. App. 4th Cir. 1973).

      . We are aware that plaintiff’s petition contains the recital “Plaintiffs aver that John Doe is uninsured.” In the context of the other allegations of the petition, however, that averment cannot be accepted as an allegation of fact. Unless plaintiff can allege facts supporting an inference that the phantom driver was uninsured, the uninsured motorist coverage is not applicable.


text:
    Josephine P. IMIG v. NEW ORLEANS PUBLIC SERVICE, INCORPORATED.
    No. 11330.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    Patricia R. Vincent, William S. Vincent, Jr., New Orleans, for plaintiff-appellant.
    A. R. Christovich, Jr., James Maher, III, New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA and BARRY, JJ.
   GULOTTA, Judge.

Plaintiff appeals the dismissal of her suit against New Orleans Public Service, Inc. for injuries received when she was struck on the back of her head while a passenger on defendant’s bus. We affirm.

The incident here occurred when a noisy group of approximately sixty-five high school students boarded the Nashville Avenue bus at Freret Street in New Orleans. After the students boarded, the bus was crowded and people were standing in the aisles. Plaintiff, who frequently rode that bus line home from her teaching job, was seated on the first cross seat next to the beauty seat, by the window on the driver’s side. Suddenly she was struck on the back of the head. As a result of the incident, she claims to have suffered some minor physical problems and long-term emotional and psychological damage, e. g., loss of memory, fear of crowds, fear of going out into public.

It is plaintiff’s contention that a dangerous situation was created when the bus driver permitted overloading of the bus with loud, boisterous, and unruly high school students and that the bus driver was given notice of an earlier assault on another passenger in the rear of the bus and either ignored the warning or was prevented from hearing the warning because of the overcrowded bus. According to plaintiff, because of the overcrowding of the bus and because of the bus driver’s failure to respond to a warning of impending danger, plaintiff suffered injury when struck on the head.

In Aime v. Hebert, 282 So.2d 566 (La. App. 4th Cir. 1973), we summarized the law applicable to this type of case:

“While not in the position of an insurer, a public carrier of passengers for hire is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. The mere showing of injury to a fare-paying passenger, and his failure to reach his destination safely, establishes a prima facie case of negligence. Such a carrier can be liable for assault by one passenger on another passenger where there is reason for the carrier employee to anticipate the assault and a failure on his part to take such action as may be practicable under the circumstances to prevent the assault from being committed or to interfere with its execution.” 282 So.2d at 568-569.

As this court quoted with approval in Alphonse v. New Orleans Public Service, Inc., 138 So.2d 610 (La.App. 4th Cir. 1962),

“Until there is some indication which would require a vigilant, competent, and experienced driver exercising the highest degree of care to observe the contemplated reckless and unlawful act of another, it is not negligence on his part to fail to do so. To hold otherwise would require the operator of a passenger vehicle to foresee every unexpected and sudden emergency. To place such an obligation on him would require him to speculate with mere possibilities and pure conjecture.” 138 So.2d at 613.

The testimony here shows that a crowd of students boarded the Nashville bus every day at the Freret stop; that the students were normally boisterous, laughing, yelling, and calling each other names; that the bus driver, the plaintiff, and another passenger who testified at trial, Melissa Sciortino, were accustomed to seeing these students and found nothing unusual about their behavior; that neither the bus driver, the plaintiff, nor Miss Sciortino had previously seen any violent incidents involving the students on the Nashville line. Although the testimony indicates there was another passenger, an “elderly black lady”, who may have witnessed the blow to plaintiff, the woman’s name was unknown and she did not testify. Moreover, there was no evidence to indicate that plaintiff was, in fact, struck by one of the rowdy students rather than by accident or by one of the passengers already on the bus when the students boarded it.

Nor do we find merit to plaintiff’s contention that NOPSI was negligent in allowing overcrowding or overloading of its buses. Plaintiff failed to present evidence connecting conduct of the crowd on the bus with her injury. While we specifically do not pass on the effect overcrowding may have had on the injuries inflicted on other passengers, no showing has been made of a connection between the overcrowding and Josephine Imig’s injury. Although the bus driver testified the aisle of the bus was crowded with passengers up to the very front after the students boarded, and that he could not see to the back of the bus in the rear-view mirror because of the many passengers, this does not establish any unusual behavior on the part of the student group that should have given the driver reason to anticipate an assault on our plaintiff, or that the overcrowding prevented the driver from observing conduct of passengers which jeopardized our plaintiff’s safety or prevented the driver from taking action to protect our plaintiff. See Higgins v. New Orleans Public Serv., Inc., 347 So.2d 944 (La.App. 4th Cir. 1977).

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Miss Sciortino is involved in a separate law suit against the defendant bus company for harassment and battering she underwent from some of the students on the bus on that day. Her suit is not before the court on this appeal. Her testimony described what happened to her, and she did not see the blow to plaintiff. Both she and plaintiff related the attempts of the unidentified elderly black woman to make the driver stop the bus after the students began beating Miss Sciortino. The driver testified he had not heard the unidentified woman’s entreaties nor Miss Sciortino’s sobbing until after the students got off the bus at Claiborne Ave., only six or seven blocks from Freret Street (where the students boarded the bus.) Although it is not clear whether plaintiff was struck before or while Miss Sciortino was being attacked, the unidentified woman’s call to the driver occurred apparently after plaintiff was injured. Accordingly, we do not consider that evidence as relevant to plaintiff’s case.


text:
    J. Fant TAYLOR v. Percy LUMPKIN, Mary Lumpkin, and “ABC” Cain.
    No. 11340.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.

      Chaffe, McCall, Phillips, Toler & Sarpy, Jarrell E. Godfrey, Jr., New Orleans, for plaintiff-appellee.
    Sciambra, Souhlas & Edwards, William H. Edwards, Metairie, for defendants-appellants.
    Before REDMANN, GULOTTA and BARRY, JJ.
   GULOTTA, Judge.

In this intersectional automobile accident case, defendants appeal from a judgment in favor of plaintiff in the sum of $703.91, the repair cost of plaintiff’s automobile. The judgment was rendered not only against Percy Lumpkin, the fifty-one year old driver of the automobile at the time of the accident, but also against Mary Lumpkin, Percy’s mother and the owner of the automobile, by whom Percy was employed in his mother’s nursery school as a driver transporting children to and from the school.

At approximately 10:00 a.m. on October 20, 1977 Patricia Taylor, plaintiff’s daughter, was driving plaintiff’s automobile in a southerly direction (in the direction of uptown) on South Carrollton Avenue. South Carrollton Avenue is a four-lane boulevard divided.by a wide neutral ground. Percy Lumpkin, driving on Olive Street, stopped at the intersection of Olive and South Car-rollton Avenue, in obedience to a stop sign on Olive Street. According to Lumpkin, when he reached the intersection he stopped for the stop sign on Olive and then “pulled off across” the first two lanes of Carrollton Avenue into the neutral ground area. Lumpkin testified that he did not stop in the South Carrollton ■ Avenue neutral ground but slowed up and looked to his right. He saw an automobile coming toward him “in the second lane from the neutral ground”, which apparently switched lanes and struck the rear of his automobile while it was in the “far lane”. He stated that he proceeded across the intersection and “got hit right past the neutral ground.”

Patricia Taylor, the driver of plaintiff’s automobile, testified that while traveling at a speed of 30 miles per hour on South Carrollton, as she approached the Olive Street intersection she noticed a yellow station wagon stopped at the neutral ground “like he was waiting for [her] to pass.” When she had reached a point approximately 30 feet from the intersection, the station wagon “just took off in front of [her].” She put on her brakes, but was unable to stop in time, and the front of her automobile collided with the side of defendant’s car. The right-rear panel of defendant’s car was damaged and the Taylor automobile was damaged across the front end.

In a shot-gun approach defendants contend that because there is no testimony that the estimator of the automobile damage stated that the damage was caused from the accident, plaintiff failed to substantiate her damages; that because the witness who identified the N.A.D.A. Book (offered to establish used car values) was not in the business of buying and selling used cars, he was not the proper party to identify the books, and the proper foundation for introduction of these books was not laid; that the trial judge erroneously permitted testimony about traffic offense convictions of the driver of defendant’s automobile; and, because no showing was made by plaintiff that the defendant’s automobile was being used by the driver for his employer’s benefit or business at the time of the accident, the trial judge erroneously cast in judgment Mary Lumpkin, the employer of the driver of the defendant vehicle.

We find no merit to any of the evi-dentiary arguments raised by defendants. According to the testimony of the service manager of an automobile painting and repair shop, who made the estimate of the damage to the automobile, the cost of repairs amounted to $703.91, the amount of the judgment in the trial court. His testimony was uncontradicted. Although the estimate was made approximately four months post-accident, we fail to find that the estimate included damage to the plaintiff’s vehicle other than that which occurred in the October 20,1977 accident, as suggested by defendant. Plaintiff driver testified that the front of her automobile was damaged in the accident. The estimate introduced into evidence included repairs only to the front of plaintiff’s automobile. Furthermore, Patricia Taylor testified that pri- or to the accident, plaintiff’s automobile had not been damaged and that the estimate prepared by the estimator was damage resulting from the accident. Mrs. Shirley Taylor, Patricia’s mother, testified that the damage referred to in the estimate resulted only from the October 20th accident. Defendants offered no evidence to rebut the estimate of damage. Under the circumstances we cannot say the trial judge erred in accepting the estimate as the damage sustained by plaintiff’s automobile as a result of the accident.

In connection with the amount of the award we find no substance to defendants’ claim that the trial judge erred in permitting the introduction into evidence of the N.A.D.A. book to establish the used car value of plaintiff’s automobile. Although the Taylor car was not repaired and was subsequently sold for $500.00, plaintiff established the value of the damage to the automobile. Evidence of the used car value at the time of the accident served only to show that the Taylor automobile was valued in excess of the amount of the damage sustained. Plaintiff is not seeking any amount for loss of value of the automobile in addition to costs of repair. Under the circumstances, defendants were not prejudiced by the introduction of the N.A.D.A. book.

Returning now to defendants’ third evidentiary argument, that testimony concerning Percy Lumpkin’s conviction of a traffic violation was erroneously admitted, we conclude this error, if it was indeed an error, was harmless. No evidence was introduced pertaining to traffic convictions relating to the facts surrounding the occurrence of the accident. According to Patricia Taylor, the driver of defendant’s automobile was convicted for hit-and-run driving. We give no weight to this testimony.

The most serious complaint raised by defendants is that the trial judge erred in casting in judgment Mary Lumpkin, the defendant driver’s employer. In Martin v. Brown, 240 La. 674, 124 So.2d 904 (1961) the Supreme Court concluded that the owner of an automobile is not liable for damages caused while his automobile is being operated by a third person, with his knowledge and consent, unless he was present or the third person was his agent, servant, or employee, and was acting within the scope of his agency or employment. It is undisputed that Mary Lumpkin was not present in the automobile while the accident occurred. Further, in Windham v. Security Ins. Co. of Hartford, 337 So.2d 577 (La.App. 4th Cir. 1976), writ denied 341 So.2d 407 (La.), we stated that an employee who is driving his employer’s vehicle at the time of an accident is presumed to be acting in the course and scope of his employment and his employer is responsible for damages sustained by a third party as a result of the employee’s negligence. Such a presumption is re-buttable by an employer, but only by strong and convincing evidence. In Windham we went on to say that there exist no hard and fast criteria to determine whether an employee using his employer’s vehicle is acting within the course and scope of his employment. Each case must depend upon its own facts; however, important considerations include whether the employee was acting in the service of or about his employer's business and whether the vehicle was being used in such a manner as to benefit the employer.

Resolution of this question is difficult because of the inability of an offended driver to be in possession of knowledge pertaining to the relationship between the driver-employee and the owner-employer. In the absence of statements made by an offending driver or the employer, or of information obtained through discovery or depositions, or any other evidence, documentary or otherwise, this question becomes one of credibility. Plaintiff, in the instant case, failed to offer any evidence supporting the allegations of the petition that the driver was on a mission for his employer at the time of the accident. Although no reasons were assigned by the trial judge it is apparent that in awarding judgment against the employer, the trial judge concluded that defendants failed to overcome the presumption that the driver was on a mission for his employer at the time of the accident and that plaintiff is entitled to recovery against the employer on the basis of respondeat superior.

Mrs. Mary Lumpkin testified that her son had lived with her and was employed because he was “on disability.” Her nursery school was operated from her home and her son had the responsibility of transporting the children to and from the school. The station wagon driven by him on the date of the accident was used for this purpose. Mrs. Lumpkin stated that she does not use the car for any other purpose, but that her son is allowed to use the car for his personal use. She places no restrictions on that use. She testified further that he usually finished his morning pickup of the children at approximately 8:30 a. m. On the morning of the accident, he had finished his work until that afternoon when he was required to take the children home from school. She said that Percy had free use of the car between the time he brings the children to the school in the morning and takes them home in the afternoon. She also said she had not sent him on any errands on that day. Percy testified that at the time of the accident he was returning to his home, where the nursery school was located, after visiting a friend. Mrs. Shirley Taylor testified that she contacted Mary Lumpkin after the accident and was told by her that the driver of the station wagon was her son, who was driving for the nursery school, and that she had insurance and would accept the responsibility. This testimony was not denied by Mary Lumpkin.

In a comparatively recent case the Louisiana Supreme Court, in Daniels v. Conn, 382 So.2d 945 (La.1980), stated that in a determination of the question of whether the employee is on a mission for the employer, the inquiry is whether the employee’s tor-tious conduct was “so closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest.” A further test outlined by the Daniels court was whether the employee was performing some function for his employer and for which he was employed. In the Daniels case, the Supreme Court concluded, after considering all of the facts and circumstances surrounding that case, that because the employee was not “on duty” at the time of the accident, the employer was not responsible under the theory of respondeat superior.

In Daniels we affirmed the trial court’s conclusion that the tortfeasor was not “on duty” on the week-end of the fatal accident. However, in our case, Percy had the responsibility, on the day of the accident, to return the children from the nursery school to their homes. At the time of the accident he was returning to the nursery school, where he lived. We conclude, as apparently the trial judge did, that Percy’s employment duties were so closely connected in time, place and causation to his employer’s business that at the time of the accident he was on a mission for his employer. Under the circumstances we conclude his employer is liable. Having so concluded, the judgment of the trial court is affirmed.

AFFIRMED.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Allen J. ST. PIERRE v. Leonard A. WASHOFSKY, Individually and as a Partner in the Law Firm of Jackson & Hess and its Successors in Interest, Hess & Washofsky and his Legal Malpractice Insurer, the XYZ Insurance Company.
    No. 11266.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    A. Remy Fransen, Jr., Wiedemann & Fransen, New Orleans, for defendants-ap-pellees St. Paul Fire & Marine Ins. Company and Leonard A. Washofsky.
    Walter C. Thompson, Jr., Sessions, Fish-man, Rosenson, Boisfontaine & Nathan, New Orleans, for defendants-appellees Appalachian Ins. Co. and Leonard A. Washof-sky.
    Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a summary judgment dismissing his malpractice action against his former attorney who represented him in an unsuccessful tort claim. St. Pierre v. General Am. Trnsp. Corp., 360 So.2d 595 (La.App. 4th Cir. 1978).

In his petition plaintiff makes the following allegations: Having been injured in an industrial accident on July 18, 1973, he re-tamed defendant, Leonard A. Washofsky, to represent him in an “executive officer and a workmen’s compensation action” against his employer. Suit was filed and in May 1977, the case was tried improperly, Washofsky failed to sue the necessary parties, and he failed to make a timely objection to special interrogatories propounded to the jury, all constituting legal malpractice.

Plaintiff made part of his petition by reference our opinion cited above which affirmed the judgment of the trial court dismissing plaintiff’s suit.

Defendants, Washofsky and his insurers, responded to this petition with a motion for summary judgment and relied for the most part on our previous opinion to support that motion. No affidavits, depositions or interrogatories were filed by defendants in support of their motion so that they relied exclusively on an attack against plaintiff’s petition based on the previous opinion of this court. Thus, the posture of this case is much like a dismissal on an exception of no cause of action since defendants are not relying on a defense based on facts. Instead, they have chosen to defend against the petition as a matter of law.

In any malpractice action the client must prove by a preponderance of the evidence that the attorney’s neglect was the cause of the client’s loss and except for negligence on the part of the attorney the client would have won the case. Tassin v. Labranche, 365 So.2d 31 (La.App. 4th Cir. 1978). In Lewis v. Collins, 260 So.2d 357 (La.App. 4th Cir. 1972), we held that the plaintiff in an attorney malpractice action must prove that the attorney breached his obligation and that the breach caused the plaintiff damages in order to prevail.

We have no difficulty concluding that plaintiff failed to state a cause of action with the allegations summarized above. As can be seen from our original opinion, we held flatly that plaintiff was barred from recovery by his own contributory negligence in breaking the glass gauge with his hammer so as to preclude him from recovery no matter what additional defendants may have been joined. In analyzing the jury’s verdict on this point, it is surely more probable than not that the jury would have reached the same conclusion that it did against an array of high level officers even if these low level fellow servants of plaintiff had been joined as defendants. We are not persuaded that the addition of these fellow employees, particularly Vice, would somehow have made the jury more sympathetic to plaintiff and award him a verdict when they were unmoved to do so against the defendants who were joined.

As to defendants’ failure to object to the order of interrogatories, while we pointed out in our previous opinion that that objection was waived by defendant attorney’s failure to object to the interrogatories, we did not suggest in our opinion that it was error for the interrogatories to have been placed in the order that they were, and we do not so hold.

Following the allegations summarized above plaintiff also alleged that defendant’s malpractice consisted of “improper consultation with witnesses,” and failure to employ adequate discovery, to properly attempt to settle the case, to fully advise plaintiff with respect to the proper defendants to be sued, and to timely set the matter for trial. However, these allegations are likewise insufficient to state a cause of action because they are largely conclusory in nature and they must be read in context with the other allegations of the petition concerning defendant’s failure to join additional defendants, which we have already discussed and disposed of.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissenting.

REDMANN, Judge,

dissenting.

First I note that this jury did not find St. Pierre’s tort recovery barred by contributory negligence, but neither defendant Wash-ofsky as trial counsel nor present counsel Becnel as then appellate counsel thought worthy of pursuit, apparently, that the minimum 9-3 vote included among the nine one juror (Evelyna Jefferson) who on being polled voted that St. Pierre was not guilty of negligence at all. Because C.C.P. 1795 requires nine jurors to concur, and that juror’s vote cannot reasonably be counted, there was no valid verdict.

Second I note that a duty-risk analysis of the tort case would have, more probably than not, prevented treating St. Pierre’s negligence in breaking the glass tube-gauge as a bar to his recovery, because the duty arose to drain the acid from the glass tube precisely because of the risk that St. Pierre might break the glass tube when inescapably working next to it with welding equipment. Once this duty-risk relation is pointed out, it is unlikely that a court would hold that the exact accident the duty is intended to protect against defeats a claim for damages for a breach of the duty. See Rue v. State, Dept. Hwys., 372 So.2d 1197 (La.1979). No duty-risk instruction was requested by trial counsel, and no duty-risk argument was made in the brief on appeal by appellate counsel.

Because of his responsibility in respect to those two matters in the tort suit, I believe that St. Pierre’s present counsel is not in a position to advise and represent St. Pierre independently, competently and zealously in this malpractice suit. Code of Judicial Conduct, Canon 3, standard B(3), obliges us as judges to “take ... appropriate disciplinary measures against a ... lawyer for unprofessional conduct of which the judge may become aware.” St. Pierre’s present counsel’s prior participation in the tort case as appellate counsel interferes, in respect to the malpractice claim, with the exercise of independent judgment on behalf of the client, Canon 5, Code of Professional Responsibility, and with competent and zealous representation, Canons 6 and 7, or at least creates the appearance of impropriety proscribed by Canon 9. See especially EC 5-2 and DR 5-101(A), 6-102 and 7-101(A). We should disqualify present counsel for St. Pierre and allow time for new briefing and any other action by new counsel.


author: SCHOTT, Judge.

text:
    Mrs. Beulah Hardin Coulton, wife of/and Thomas J. COULTON v. LEVITZ FURNITURE CORPORATION and the Travelers Indemnity Company.
    No. 11358.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.

      Michael F. Grennan, Law Offices of James J. Morse, New Orleans, for defendants-appellants.
    Lambert J. Hassinger, New Orleans, for plaintiffs-appellees.
    Before BOUTALL, SCHOTT and SAR-TAIN, JJ.
   SCHOTT, Judge.

On October 18, 1976, plaintiff, Mrs. Beulah Hardin Coulton, a customer service representative for defendant, Levitz Furniture Corporation, sustained an injury to her neck and back when she tripped while carrying a package from her desk to an adjoining room. She was paid $95 per week in workers’ compensation benefits for permanent total disability under LSA R.S. 23:1221(2) from the date of the accident until February 7, 1979, when the payments were reduced to $36 per week, prompting her to bring this suit against her employer and its insurer, Travelers Insurance Company. The trial judge awarded benefits of $95 per week plus statutory penalties of 12% and attorney’s fees in the amount of $5,000. Defendants have appealed from the awards for penalties and attorney’s fees. Plaintiff has answered the appeal seeking legal interest on the penalties and attorney’s fees, an award for future medical expenses, an award for court costs and expert fees, and an increase in the award for attorney’s fees.

Defendants contest plaintiff’s entitlement to penalties and attorney’s fees on the ground that there was no proof that plaintiff’s condition, at the time when her compensation benefits were reduced, was caused by the accident on the job. It also questioned the amount of attorney’s fees on the ground that there was no evidence offered at the trial to support the amount awarded. Thus, the principal issue is whether defendants’ action in reducing the compensation benefits was arbitrary, capricious or without probable cause such as to justify the imposition of penalties under R.S. 22:658.

The day after the accident plaintiff consulted a general practitioner who examined her and diagnosed a left lumbosacral strain and strain in the left trapezius muscle. The following week she was examined by Dr. Kerr, an orthopedic surgeon. Her principal pain was neck pain. He diagnosed arthritis in the cervical spine at C-5 to C-6 and paraspinous muscle strain. He prescribed medication, heat applications and the use of a cervical collar. When she failed to respond to this treatment he referred her to Dr. Carlos Pisarello, a neurosurgeon.

Dr. Pisarello had seen plaintiff previously for problems in her neck and had performed a laminectomy on her in October, 1969. In December, 1971, she again consulted Dr. Pisarello with complaints in her neck, and after being treated conservatively a second laminectomy was performed on her in January, 1972. When she returned to Dr. Pisar-ello on Dr. Kerr’s referral in December, 1976, she stated that she was experiencing pain in her neck which had begun following her October accident. After running a my-elogram on her which proved positive he performed a cervical fusion at the fifth and sixth level of the cervical spine. She continued to complain of pain in her neck over the next several months while she remained under his care until he discharged her in June, 1977. At that time she was still in pain but Dr. Pisarello felt that he could not provide her with further relief.

Thereafter plaintiff continued to be treated for her neck problem by her personal physician, Dr. Gisclair, whose practice was limited to female patients particularly in the area of gynecology.

On January 31, 1978, plaintiff was examined by Dr. E.J. Dabezies, an orthopedic surgeon at the request of defendants, and on February 1 he reported to Travelers that her chief complaint was pain in the left vertebral border of the scapula. She also complained of pain the the dorsum of the forearm on the left and numbness in the thumb and index fingers. His physical examination of plaintiff revealed some tenderness of the cervical musculature and of the left brachial plexus and decreased sensation to touch over the thumb and index fingers. He concluded his report as follows:

“I think that this woman has achieved the maximum benefit of treatment. I do think that she could be employed at some type of sedentary employment. She is going to need continued medical supervision but I do not anticipate that any further surgery will be necessary.
As regards to disability, I would estimate that she has a residual of 20% permanent loss of physical function to the body as a whole.”

Defendants took no action after getting this report until a new adjuster was assigned to handle the file. Upon his review of the case in February, 1979, he reduced the benefits to $36 per week, based on Dr. Dabezies’s report of February, 1978, and the fact that the only physician treating plaintiff at the time was the gynecologist. He took this action despite the fact that plaintiff was scheduled for another examination by Dr. Dabezies on March 5, 1979, and his file contained a report from Dr. Gisclair dated January 22, 1979, which was as follows:

“In reply to your request for an up to date medical report on the above captioned lady, the following is submitted. The past history of her neck problems, the cervical disc and fusion surgery, should be in your files.
Mrs. Coulton continues to have neck, shoulder and arm pain. She is never free of discomfort. Limitation of motion is apparent on physical exam, but she has no loss of the sensory nerves. My last examination was December 27, 1978. This ease is further complicated by the fact that this lady has cervical arthritis (X-ray reports attached). The latest and effective drugs for this problem has caused her to have Gastrointestinal Bleeding. Consequently drug treatment for regulation of her discomfort is not simple.
I will see this lady again in 2-3 weeks for further evaluation.
This information is submitted to you, with the patient’s consent, for evaluation of her claim status.”

On March 5, 1979, Dr. Dabezies reported to Travelers that he had seen plaintiff on that date for the purpose of re-evaluation and she complained that her neck problem seemed to be getting worse with neck pain radiating to the left arm and to the ring and little fingers and with numbness in the left index finger and thumb. In'his opinion, plaintiff’s condition was essentially unchanged from his previous report but he thought “there is a significant element of depression that has developed as a result of this chronic pain syndrome.” After recommending re-evaluation by Dr. Pisarello he recommended that plaintiff should be considered as a candidate for the Mercy Hospital Pain Unit to see if this treatment approach would help alleviate her depression and allow her to come to terms with the problem.

Defendants’ argument in this court is that they were justified in the reducing of plaintiff’s payments because there was no proof of causation of her present condition by the accident in October, 1976. They argue that her previous neck problems and present arthritis were as likely the cause of her present problems as the accident. They point to some statements in the medical testimony that a person in plaintiff’s preac-cident condition might have developed her present symptoms with or without a traumatic incident. However, we have concluded that the record does support the trial court’s conclusion which was inherent in his judgment that the accident caused plaintiff’s present condition.

Plaintiff testified that she had no difficulty with her neck for four years prior to the accident and she has continued to suffer since the accident occurred. In answer to the question as to whether the plaintiff’s present problems were more likely caused by the accident Dr. Pisarello answered that we have to assume that the accident was in some way the generating factor for that eventual finding. On cross examination, he was asked whether it was just as likely that the accident had nothing to do with her present condition, considering her past history and he stated, “it is conceivable, but it would be a heck of a coincidence.” Defendants tried to impeach him based on statements he made at a deposition that her problems were possibly caused by her previous condition and any light strain, but a close reading of the deposition and his testimony at trial shows only that he admitted the possibility of some cause other than the accident and that he could not say with certainty as to what caused her present condition; but he was firm in the opinion that the accident was the probable cause because of the sequence of events as presented. Considering this testimony we cannot say that plaintiff failed to carry her burden of proof or that the trial judge erred in concluding that the accident was the cause of her present condition.

In any event, in this appeal defendants do not seem to take issue with causation per se, but they maintain that they should not be penalized because causation was questionable enough to justify their reduction of compensation benefits. But the record does not support this position. Their adjuster testified that he made his decision because of the 1978 report of Dr. Dabezies, but causation is not questioned in that report. Any equivocation there concerns only the degree of pain or disability being suffered by plaintiff. Furthermore, it is difficult to understand why defendants took action based on this year old report while totally disregarding the recent report from Dr. Gis-clair, and despite the fact that they had already scheduled a re-evaluation by Dr. Dabezies for the following month after they reduced her benefits. In argument to this court, defendants contend that their adjuster was justified in taking a fresh look at the case and was therefore entitled to question causation, but we do not find that he based his decision on causation at all. At this point in time it seems that all medical examiners and those handling plaintiff’s claim had already concluded that causation was established and the degree of disability alone was in question.

This is borne out also by the fact that defendants only reduced plaintiff’s benefits but did not terminate them. The adjuster testified that he arrived at the reduced figure by taking two-thirds of the difference between plaintiff’s preinjury wage and what would be the minimum wage at the time of the reduction. Aside from the fact that this approach was without legal foundation it did not indicate that defendants were questioning causation when they made their decision to reduce the benefits.

Defendants next take issue with the award of attorney’s fees in the amount of $5,000, contending that the record does not support the award and the amount was unreasonable. They request that we remand the case for evidence on the amount of attorney’s fees to be awarded, and refer us to May v. Market Ins. Co., 373 So.2d 763 (La.App. 3rd Cir. 1979) and Crooks v. Southern Cas. Ins. Co., 337 So.2d 915 (La.App. 3rd Cir. 1976) in support of their position.

There is no indication in the Crooks case that any evidence was taken in the trial court bearing on the proper fee amount. The decision simply identifies those events reflected in the record ■ on which the trial court based the award. As to the May case, while there was evidence presented directly bearing on the proper fee to be awarded we are not persuaded that this is necessary in every case.

In Duffour v. Hartford Cas. Co., 359 So.2d 720 (La.App. 4th Cir. 1978) and Wactor v. Gurtler Hebert Const. Co., 343 So.2d 383 (La.App. 4th Cir. 1977) this court affirmed awards of $5,000 for attorney’s fees in workers compensation cases based on the services apparent from the record. We have concluded that the trial judge’s discretion in setting attorneys fees may be properly exercised without the necessity of evidence directly bearing on the amount of the fee since he may draw a reasonable inference from what took place before him of the time spent by the attorney and the value of the services rendered. Evidence such as that presented in Fazande v. Continental Grain Co., 363 So.2d 1253 (La.App. 4th Cir. 1978) may assist the trial judge but is not essential.

Finally, defendants contend that the fee was excessive in any event. First, from our own review of the record we disagree. This was a contested case involving rather complex medical testimony and included several depositions. Second, the Fazande, Duffour and Wactor cases cited above allowed the same fee in contested workers’ compensation cases where attorney’s fees were awarded. We are not persuaded that the trial judge abused his discretion in the instant case.

Turning to plaintiff’s answer to the appeal she is entitled to legal interest from date of judicial demand on the penalties and attorney’s fees, Haynes v. Standard Fire Ins. Co., 370 So.2d 118 (La.App. 1st Cir. 1979); Negem v. Paul Revere Life Ins. Co., 366 So.2d 194 (La.App. 2nd Cir. 1978).

Furthermore, plaintiff is entitled to an increase in the award for attorney’s fees because of the additional services rendered in this court. Duffour v. Hartford Cas. Ins. Co., supra. We find that an additional $1,000 is justified by the record.

However, an award for future medical expenses is unnecessary as they are statutorily required to be paid. R.S. 23:1203. See Anderson v. Eagle Asbestos Co., 355 So.2d 1082 (La.App. 4th Cir. 1978).

Finally, we will amend the trial court judgment to cast defendants for all costs, but we will not include any amounts as fees for expert witnesses, leaving this to the trial court to decide on a rule to tax costs should it become necessary.

Accordingly, the judgment is amended to increase attorney’s fees to $6,000, to provide for legal interest from date of judicial demand on penalties and attorney’s fees and to cast defendants for all costs. In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.


author: GARRISON, Judge.

text:
    In re Varnell Keith LEE Applying for Restricted Drivers License.
    No. 11323.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.

      Robert R. Faucheux, Jr., Reserve, for plaintiff.
    Foye L. Lowe, Jr., Baton Rouge, for defendant.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, granting to the petitioner restricted driving privileges as follows:

“After hearing the evidence, argument of counsel and considering the law and the need of the applicant for the relief prayed for, IT IS ORDERED, ADJUDGED AND DECREED that the State of Louisiana shall amend their records in the Department of Public Safety to reflect that this Court has this day granted Varnell K. Lee a restricted drivers license to be used going to and coming from his place of employment and residence for a period of 365 days during which time his Class A drivers permit shall remain suspended.
The applicant is hereby notified that under no circumstances shall these driving privileges include use from 12:01 a. m. Saturday to 4:00 a. m. Sunday. This Court further finds that the revocation by the State Department of Public Safety was not unwarranted nor excessive, but that this Judgment is rendered due to economic hardship only and that Petitioner is hereby notified that an additional conviction for driving while intoxicated will result in a two year loss of driving privileges. This judgment resulted since Mr. Lee was not represented by counsel during his previous convictions for D.W. I.” (emphasis added).

The judgment was signed on November 5, 1979, and a devolutive appeal was taken.

On appeal, the State Department of Public Safety argues that Varnell Lee is ineligible for restricted driving privileges, in lieu of revocation of his license, under R.S. 32:414. We agree. The relief sought by Mr. Lee is under the terms of the statute, available only in instances of a first suspension, cancellation, or revocation of a drivers license. Mr. Lee’s license had been revoked at least once before. Therefore, he was ineligible for restricted driving privileges. Wenfrey v. Department of Public Safety, 374 So.2d 119 (La.App. 4th 1979). We note, however, that due to the 365 day period provided in this judgment, the issue of revocation of Lee’s restricted driving license is moot as of November 6, 1980.

For the reasons discussed, the judgment of the district court is reversed.

REVERSED.


text:
    Patrick J. TOMENY, Jr. v. William BOYKIN.
    No. 11263.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.

      Reed & Reed & D’Antonio, Floyd J. Reed, New Orleans, for defendant and appellant.
    Louis H. Schultz, Metairie, for plaintiff and appellee.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, granting to plaintiff-lessor, Patrick J. Tomeny, rent arrearages and costs of eviction totaling $4,226.00, plus legal interest and costs. The trial court rejected plaintiff-lessor’s demands for damages to and costs of cleaning the premises, removal of certain property from the premises, and attorney’s fees. The trial court additionally found the defendant-lessee, William Boykin, to be personally liable, despite defendant’s contention that he was merely acting as an agent on behalf of Boykin Truck Centre, Inc. From that judgment, which we now affirm, defendant appealed.

On appeal defendant-appellant alleges that the trial court erred in declaring William Boykin personally liable, and in awarding the costs.

In his reasons for judgment, the trial judge assessed the credibility of the witnesses, finding that Boykin had contracted personally rather than on behalf of a corporation:

“... There is no doubt in my mind that Mr. Boykin’s appraisal of the situation concerning the corporation is incorrect. I doubt his credibility in connection with that particular aspect in this matter. It seems very clear to me that Mr. Tomeny’s testimony in connection with this matter is correct.
******
In fact, I would be amazed if a man in his (Tomeny’s) business would take a corporation yet unformed and make a lease arrangement ...” (T. p. 78-79).

We note that there is no corporate resolution authorizing Boykin to obtain the lease or ratifying his actions.

Our independent review of the evidence and testimony presented, convinces this court that the trial judge was not manifestly erroneous in his factual determinations. Arceneaux v. Domingue, La., 365 So.2d 1330 (1978). Thus, the trial judge found that the lease was confected prior to the date on which the corporation came into existence. We agree.

Having thus concluded, that there was no corporation in existence at the time when the lease was confected, we approve the trial court’s finding that William Boykin was acting solely on his own behalf, hence he bound himself personally and is personally liable. We further find that the trial judge did not abuse his discretion in awarding costs to Tomeny.

For the reasons discussed above, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Dorothy Kirklin, wife of/and James KIRKLIN v. WINN-DIXIE LOUISIANA, INC.
    No. 11254.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Michael K. Heltz, Law Offices of Thomas J. Kliebert, Gramercy, for plaintiffs-appellants.
    Charles W. Schmidt, III, Christovich & Kearney, New Orleans, for defendant-ap-pellee.
    Before SAMUEL, CHEHARDY and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the trial court, dismissing plaintiffs’ slip and fall case on the basis that plaintiff failed to prove that she slipped or fell and that she was injured thereby. From that judgment which we affirm, plaintiff appeals.

On appeal, plaintiff raises factual issues as the basis on which she seeks reinstatement or reversal; plaintiff’s brief enumerates the following as the issues raised on appeal:

“I. Had the Winn-Dixie store been fully swept five to ten minutes before the accident?
II. Did the testimony of Nettie Petit corroborate the testimony of Grace St. Pierre that although Mrs. Kirklin stepped on an okra pod, there was no evidence that she slipped on the okra pod in a manner to cause her injury?
III. Did Mrs. Kirklin make complaints of pain and discomfort at the time of the accident?
IV. Did the plaintiffs-appellants prove that there was evidence of slippage resulting from the accident?
V. Did the plaintiffs-appellants prove that Mrs. Kirklin slipped and injured herself as alleged in her petition?”

On credibility determinations and questions of fact, the trial judge is given considerable discretion. Although, there is some conflicting testimony contained in the record, our independent review of the testimony presented convinces this court that the trial judge was not manifestly erroneous in his factual determinations. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The trial judge provided this court with six excellent pages of written reasons for judgment which we now incorporate as our own:

“This is a suit for damages for personal injuries resulting from an alleged accident that occurred on or about July 3, 1976. In their petition, the plaintiffs, Mr. James Kirklin and his wife, Dorothy Kirklin, allege that on or about that date, Mrs. Kirklin slipped and fell in a supermarket owned and operated by the defendant, Winn-Dixie Louisiana, Inc. (hereinafter referred to as ‘Winn-Dixie’) located in Gramercy, La. The plaintiffs allege that as Mrs. Kirklin was about to pay for groceries purchased in defendant’s store, she slipped and fell on a foreign object believed to be an okra plant near the cash registers resulting in painful and disabling injuries to her back and neck. It is the plaintiffs’ contention that the accident was caused solely by the negligence of Winn-Dixie in one or more of the several acts or omissions listed in their petition. As a result of the accident, plaintiffs allege that they have incurred damages for medical expenses, physical pain and suffering, and mental anguish and distress and permanent injuries totaling $36,180.00.
In its answer, Winn-Dixie denied that plaintiff’s alleged damages were caused by its negligence and asserted that the sole and proximate cause of the accident was the negligence of Dorothy Kirklin, and, alternatively, that the contributory negligence of Dorothy Kirklin caused the accident.

The trial of this matter was held on June 5, 1979. Testifying at the trial on behalf of the plaintiffs were Dorothy Kirklin and her mother, Mrs. Louvenia Russell. Winn-Dix-ie presented the testimony of Grace St. Pierre and Nettie Petit, two of its employees who were on duty on the date of the accident. It was stipulated prior to trial that plaintiff James Kirklin, if called to testify, would corroborate his wife’s complaints of pain, and that his testimony would not be entered at trial. The medical reports and depositions of Dr. Carl J. Poch and Dr. Joseph M. Nadell were also introduced into evidence by stipulation.

The court must first decide if, as alleged in plaintiff’s petition, an accident did occur. If such an accident did occur, then the court must decide if that accident was caused by the sole negligence of Winn-Dixie, or by the sole negligence of Dorothy Kirklin, or by the combined negligence of both Winn-Dixie and Dorothy Kirklin. Finally if the accident was solely caused by Winn-Dixie negligence, the court must then decide what, if any, damages the plaintiffs are entitled to recover from Winn-Dixie.

From the evidence introduced at trial, it is undisputed that on or about July 3,1976, Mrs. Dorothy Kirklin and her mother, Mrs. Louvenia Russell, went shopping at Winn-Dixie’s supermarket in Gramercy, Louisiana, in this Parish. After choosing the groceries they wanted to purchase, they proceeded toward the check-out counter or cashier to pay for the items they had chosen. Just before they got to the check-out counter, an incident occurred. It is at this point the evidence is contradicting. Basically, the plaintiffs claim that Mrs. Kirklin slipped on an okra pod and received injuries thereby, whereas, Winn-Dixie claims that no such slip or injuries actually occurred. This contradiction presents a fact question for the court to decide and its decision must be based on the most credible evidence introduced.

The plaintiffs’ version of what happened was presented by Mrs. Kirklin and her mother, Mrs. Russell. Mrs. Kirklin testified that immediately prior to arriving at the check-out counter, she actually, slipped on an okra pod located on the floor. She stated that when she stepped on the okra pod, her feet split apart and she fell backwards, twisting her body in the process.

According to her testimony, she did not fall to the floor, but rather was able to keep her balance by holding on the shopper’s cart she was pushing. She stated that Mrs. Grace St. Pierre, an employee of Winn-Dix-ie, approached her and asked if she was hurt and that she felt a pain in her back at the time of the incident. She and her mother then checked out and went home. Mrs. Kirklin further testified that several days after the accident she went to Dr. Carl J. Poche for treatment of the injuries she received in the accident. She stated that she telephoned Mrs. St. Pierre to tell her she was going to seek medical treatment for her injuries and that Mrs. St. Pierre told her that Winn-Dixie’s insurer would pay her doctor bills. Mrs. Kirklin also testified extensively as to the nature of her injuries and the extent of medical treatment she received as a result of her injuries.

Under cross-examination, Mrs. Kirklin admitted that at the time of the accident, she did not ask Mrs. St. Pierre to complete an accident report. She also admitted that since the Winn-Dixie incident she was involved in two automobile accidents, but denied that the subsequent accidents aggravated her earlier injury. She denied that she was injured in any way prior to the Winn-Dixie incident.

Mrs. Louvenia Russell’s testimony substantially corroborated the testimony of her daughter. However, she stated that Mrs. St. Pierre talked to her and her daughter after the accident but she did not remember any specifics of that conversation.

Mrs. Grace St. Pierre was the principal witness to testify as to the defendant’s version of what happened. She testified that she had been an employee of Winn-Dixie for thirteen years at the Gramercy supermarket and that she has several duties around the store including guarding against shoplifters and investigating and making accident reports on accidents that occur on the store premises. She stated that she knew Mrs. Kirklin and her mother since they were frequent customers of Winn-Dixie and that she saw them enter the store on the date of the alleged accident. She did not observe them while they were shopping but stated that Mrs. Kirklin attracted her attention by calling out her name. She saw that Mrs. Kirklin had stepped on a pod of okra and then proceeded to wipe the okra off of Mrs. Kirklin’s shoe. She stated that the okra was dry and not slimy. She was definite in her testimony that she did not see Mrs. Kirklin fall to the floor or slip on the okra pod and that there was no evidence of slippage whatsoever on the floor. She stated that the first time she saw the okra was when Mrs. Kirklin raised her foot. She further testified that when she approached Mrs. Kirklin, Mrs. Kirklin said “I could have slipped,” and Mrs. Russell told her, “My daughter could have slipped.” She was also definite in her testimony that Mrs. Kirklin did not say to her that she did indeed slip on the okra. Mrs. Kirklin did not say that she was in pain nor did she appear in any way to be in pain. She stated if Mrs. Kirklin would have appeared to be in pain, she would have made out an accident report at that time. It was later shown that an accident report was made several days after the incident. She also stated that the store had been fully swept five to ten minutes before the incident.

Mrs. St. Pierre further testified that Mrs. Kirklin called her a few days after the accident and tried to get her to go along with the idea that an accident had happened, but she refused to do so because in her own mind, she felt that no accident had actually happened. She also stated that some time after the alleged accident Mrs. Kirklin came to the supermarket at first appearing to be in pain, but when Mrs. Kirklin did not know she was actually being observed by her she showed no signs of pain at all.

Mrs. Nettie Petit, testifying on behalf of Winn-Dixie, stated that she was the cashier at Winn-Dixie who checked out Mrs. Kirk-lin and her mother on the date of the alleged accident, and that, as she was checking out Mrs. Kirklin, Mrs. Kirklin held up two okra pods and stated to her, “I could have slipped on that.” She also stated that she did not know where those okra pods came from and that Mrs. Kirklin said nothing to her about her actually slipping, nor did Mrs. Kirklin appear to be in any pain or discomfort. She testified that she did not witness the alleged accident. Her testimony basically corroborated the testimony of Mrs. St. Pierre that, although, Mrs. Kirklin obviously stepped on an okra pod, there was no evidence that she slipped on the okra pod in a manner to cause her injury.

Counsel for both parties each did a very commendable job in preparing for this case. The memoranda submitted by each of them were excellent. At the conclusion of the trial the court’s impression was that plaintiff had simply failed to prove her case. In fairness to plaintiff, the court ordered the parties to submit written briefs so that plaintiff could be afforded the opportunity to change the court’s mind.

In his memoranda, counsel for the plaintiffs did an excellent job in researching and setting forth the law on slip and fall tort cases. The law concerning the liability of a store owner in this type of case is clearly set out in the recent case of Kavlich v. Kramer, 315 So.2d 282 (La.1975) where this State’s highest court held that in this type of case, once a customer establishes that a foreign object in a store has caused him to slip, fall, and injure himself, the burden then shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that defendant was negligent. In this case, in order for the burden to shift to the defendant, Mrs. Kirk-lin must affirmatively prove that she slipped and/or fell on a foreign object in defendant’s store and was injured thereby. This is a fact question to be determined by the court. From examining all of the evidence introduced at trial concerning the incident that occurred at Winn-Dixie’s store on or about July 3, 1976, the court is not convinced that Mrs. Kirklin actually slipped on the okra pod and/or caused or received injuries for the reasons given below.

While the court concedes that it is possible to receive injuries from a minor slip if indeed one did occur, and it is possible, although not likely, that one could experience pain two or three days thereafter, in this case, the evidence introduced was such that the court simply cannot accept Mrs. Kirklin’s version of the incident. Although obviously timid, she was not very convincing on the witness stand. There was no convincing evidence that she made complaints of pain or even discomfort at the time of the incident. There were no truly independent witnesses to the alleged accident. Although the court believes that Mrs. Kirklin did step on an okra pod, there was no convincing evidence of slippage which could have conceivably caused her injuries.

On the contrary, the testimony of Mrs. St. Pierre was very positive and was corroborated by the testimony of Mrs. Nettie Pet-it. The court looked at Mrs. St. Pierre’s testimony very cautiously and with some degree of reservation because of the strong attitude she exhibited to the effect that Mrs. Kirklin was fraudulently presenting a claim. But when Mrs. St. Pierre’s testimony is viewed objectively it supports the fact that Mrs. Kirklin simply walked on the okra pod and did not actually slip on the okra pod. Furthermore, Mrs. St. Pierre and Mrs. Petit were positive in their testimony that Mrs. Kirklin stated to them at different times, that she “could” have slipped on the okra. Although Mrs. St. Pierre’s testimony concerning the, date she made the accident report is inconsistent with what actually happened, the court does not feel that such fact should completely discredit her otherwise, positive testimony. The court is convinced that if, in her own mind, Mrs. St. Pierre would have believed Mrs. Kirklin had slipped and possibly injured herself on the okra pod, because of her experience and company policy, she would have completed an accident report at the time the plaintiffs allege the accident happened.

Furthermore, Mrs. St. Pierre testified that some time after the accident, Mrs. Kirklin entered the store and did not appear to be injured. All of this evidence leads the court to accept Winn-Dixie’s version of what happened.

Since the court is not convinced that Mrs. Kirklin did indeed slip and injure herself as alleged in her petition, the shifting of the burden of proof as required in the Kavlich case, supra, does not take place and there is no need for the defendant to exculpate itself from the presumption that it was negligent. Furthermore, the plaintiffs have failed to prove that the negligence of the defendant in any way caused the injuries complained of. Because of such lack of proof by the plaintiffs, the court is not required to and does not express any opinion as to the extent and nature of Mrs. Kirklin’s injuries.

For the reasons discussed, the judgment of the trial court is affirmed.

AFFIRMED.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Plaintiff and Appellant-Appellee, v. Mattie Belle McDonald GAGNARD et al., Defendants and Appellees-Appellants.
    No. 7810.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 13, 1980.
    Writ Refused Feb. 13, 1981.

      Johnie E. Branch, Jr., Baton Rouge, for plaintiff and appellant-appellee.
    Edwin R. Woodman, Jr., Baton Rouge, Marc Dupuy, Marksville, for defendants and appellees-appellants.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

This expropriation suit was brought by the State of Louisiana through the Department of Transportation and Development (Department) against Mattie Belle McDonald Gagnard, Carole Gagnard Messick, Elsie Jean Gagnard Cain and Robert Gag-nard under the provisions of LSA-R.S. 48:441, et seq. The Department deposited $259.50 into the registry of the district court for the taking. However, when the issue of compensation was tried, it was stipulated by the parties that $964.00 was just compensation for the 0.4 acre strip of land that was expropriated. Following the trial, the district court found that in addition to that amount the defendants were entitled to severance damages totaling $19,355.00. Judgment was rendered in their favor in the sum of $20,319.00, with all costs being taxed to the Department.

The Department appealed, alleging that the trial judge erred by (1) awarding the defendants severance damages, (2) failing to allow it a credit for the amount it had deposited, (3) including in the court costs fees of $75.00 for each witness for depositions which were never taken, and (4) casting it with all court costs.

The defendants also appealed. They allege that the trial court erred by failing to assess as costs their expenditures for appraisals of the property.

The property, which was expropriated, was part of a 2.3 acre tract located in Avoyelles Parish just outside of the northwest corporate limits of the City of Marks-ville. The tract has approximately 500 feet of frontage on the south side of Louisiana Highway 1 and contains numerous improvements, which are being used in a commercial operation known as the Ranch House Motel. The improvements include three separate buildings containing 18 motel units, a restaurant and office building, a laundry building, storage sheds, and a residential type building, which is rented out to large groups, such as seismic exploration crews and sequestered juries.

A 10 foot wide strip was taken from the northwest corner of the tract. It begins at the western property line and extends easterly and parallel to the pre-existing highway right-of-way a distance of 178 feet, ending near the northwest corner of the restaurant-office building. The strip, which contains no improvements other than a chain link fence, was part of the front yard of the residential building.

All of the experts, who testified at the trial, agreed that the parent tract is worth approximately $200,000, and that its highest and best use is commercial. Their opinions varied, however, on the issue of severance damages.

The Department’s expert appraisers, Mr. Perry Futtrell and Mr. Byron Core, found that there was no damage to the remainder. They concluded that any effect that the taking would have on the continued operation of the motel would be negligible. They acknowledged that the residential building would be closer to the right-of-way after the taking. However, they noted that it remains as far from the right-of-way as the restaurant-office building and the motel unit building, which were not affected by the taking.

That opinion was challenged by the defendants’ experts, Mr. Kermit Williams and Mr. Richard Dupuy. They found that the remainder had suffered a 30% diminution in market value as a result of the taking. Their conclusions were based on several factors, which included the loss of off-street parking, the proximity of the residential and restaurant-office buildings to the right-of-way, and the change in the shape of the right-of-way and the remaining land.

The trial judge accepted those conclusions, while rejecting those advanced by the Department’s experts, and he utilized Mr. Williams’ figures in making the award to the defendants. The Department contends that he erred in doing so. We agree.

It is well settled that the burden of proving severance damages is on the landowner, who must prove them with a legal certainty by a preponderance of the evidence. State, Department of Highways v. Ross Continental Motor Lodge, Inc., 328 So.2d 883 (La.1976); State, Department of Highways v. Wilson, 372 So.2d 632 (La.App. 1st Cir. 1979); Louisiana Gas Purchasing Corporation v. Sincox, 368 So.2d 816 (La. App. 2nd Cir. 1979). The informed and reasoned opinions of experts may be sufficient proof of a severance damage loss, if they are corroborated by the facts in the record. State, Department of Highways v. Ross Continental Motor Lodge, Inc., supra; State, Department of Highways v. Wilson, supra. However, where an expert opinion as to severance damages is based on a percentage method of diminution in value (as were the opinions of the defendants’ experts in this case), it must be based on actual evidence of market value or on some sound reason which would effect a decrease in market value. Otherwise, it must be considered only as an individual and unsupported expression of opinion. State, Department of Highways v. Turpin, 348 So.2d 135 (La.App. 3rd Cir. 1977); State, Department of Highways v. Christy, 283 So.2d 533 (La.App. 1st Cir. 1973).

The defendants’ experts did not base their opinions that the property had suffered a 30% diminution in value on any actual evidence of market value, such as comparative sales. Their conclusions were based instead on what they believed that the reactions of prospective purchasers of the property would be.

One reason why they felt that a prospective purchaser would discount the value of the property was the lack of off-street parking. We agree that in some instances the loss of parking spaces could effect a decrease in market value. See for example, State, Department of Highways v. Denham Springs Development Company, Inc., 307 So.2d 304 (La.1975). However, the evidence in this case shows that no parking spaces were actually taken. The motel complex was originally built too close to the right-of-way to allow off-street parking in any area except in front of the residential building. Prior to the taking, less than 10 cars could have been parked there without encroaching on the right-of-way. That area was never utilized for parking, however, since there is an adequate parking area within the inner confines of the complex. In view of the fact that there is presently an adequate parking area and the fact that there is room for additional parking on the sides and in the rear of the complex, we cannot agree that the loss of the potential for off-street parking in the area of the taking effected a reduction in the market value of the property.

The defendants’ experts also felt that the property was worth less after the taking because of the change in the shape of the right-of-way. They reasoned that an informed purchaser would assume that at some future date the Department would widen the highway to the extent of its right-of-way, causing a dangerous situation due to its proximity to the restaurant-office building. They acknowledged the facts that the project for which the property was expropriated does not involve widening the highway beyond the limits of the pre-existing right-of-way, and that the property was taken for drainage purposes only. Nevertheless, they conjecture that the proximity of the right-of-way would engender fear in a prospective purchaser.

We do not believe that this kind of speculation can properly be considered sound reasoning, which is sufficient to prove a severance damage loss. Since there is no actual evidence of market value to substantiate the percentage diminution in value claimed by the defendants, we conclude that the district court manifestly erred in awarding severance damages. The judgment will be amended accordingly.

The judgment is amended to allow the Department a credit for the amount that it deposited, and to delete the provision for deposition fees, since the record does not reflect the fact that any depositions were taken. These errors, which are not disputed by the defendants, are apparently due to an oversight when the judgment was drafted. With regard to the Department’s liability for the court costs, we find no error in the judgment, other than its failure to express those costs in a specific amount. LSA-R.S. 13:5112; State, Department of Transportation and Development v. Van Willett, 386 So.2d 1023 (La.App. 3rd Cir. 1980).

The only remaining issue is the defendants’ request for an increase in the award for expert witness fees. Mr. Williams testified that the fee for his services was $1,500. The defendants argue that the award should have been for that amount. The agreement between a landowner and his expert witness concerning the latter’s fees is not the criterion to be used by the trial court in fixing such fees, however. The fixing of expert fees is within the sound discretion of the trial court, and such awards will not be disturbed on appeal absent a finding of abuse of that discretion. State, Department of Highways v. Kornman, 336 So.2d 220 (La.App. 1st Cir. 1976); State, Department of Highways v. Beauregard Development Company, Inc., 279 So.2d 787 (La.App. 3rd Cir. 1973), writ denied, 281 So.2d 759 (La.1973). We find no error in the trial judge’s allowance of $150.00 for court appearances. However, the fees to be paid to expert appraisers are based not only on their court appearances, but also on the preparatory work done by them. State, Dept. of Highways v. William T. Burton Industries, Inc., 219 So.2d 837 (La.App. 3rd Cir. 1969). Bearing in mind the great discretion accorded the trial judge in these matters, we cannot agree that $150.00 is sufficient to compensate these experts for the time and skill that is reflected in their comprehensive written reports. The award is therefore amended to increase it to $500.00 for each expert.

For the reasons assigned, the judgment of the trial court is amended to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED, that there be judgment herein in favor of the defendants, MATTIE BELLE McDonald GAGNARD, CAROLE GAGNARD MESSICK, ELSIE JEAN GAGNARD CAIN and ROBERT GAG-NARD and against the plaintiff, State of Louisiana, Department of Transportation and Development in the amount of NINE HUNDRED SIXTY-FOUR AND NO/100 ($964.00) DOLLARS, subject to a credit in the sum of TWO HUNDRED FIFTY-NINE and 50/100 ($259.50) DOLLARS, which was deposited by the plaintiff on October 14, 1975.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the difference between the amount deposited and the amount awarded, SEVEN HUNDRED FOUR AND 50/100 ($704.50) DOLLARS, is to bear interest at the rate of 7% from October 14, 1975 until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that expert witness fees are hereby fixed at the sum of FIVE HUNDRED AND NO/100 ($500.00) DOLLARS per witness and said fees are taxed as costs.

The judgment of the trial court is further amended to fix all costs of the trial court against the State of Louisiana, through the Department of Transportation & Development, pursuant to LSA-R.S. 13:5112, in the sum of $103.00. In all other respects, the judgment of the trial court is affirmed.

Costs of this appeal are fixed in the amount of $452.00 and are taxed to the State of Louisiana through the Department of Transportation & Development.

AMENDED AND AFFIRMED.


author: SWIFT, Judge.

text:
    Emile K. VENTRE, Plaintiff-Appellant, v. PACIFIC INDEMNITY CO., Defendant-Appellee.
    No. 7966.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 19, 1980.
    Lewis & Lewis, James C. Lopez, Opelou-sas, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Robert L. Cabes, Lafayette, for appellant.
    Bell, Faller & West David S. Bell, Baton Rouge, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   SWIFT, Judge.

MOTION TO REMAND

The plaintiff-appellant, Emile K. Ventre, moves to remand the above captioned case to the Twenty-Seventh Judicial District Court, Parish of St. Landry, for the purpose of correcting the record. The motion is unopposed.

The pertinent facts are as follows: Judgment was rendered in this matter on August 9, 1978. The case had been taken under advisement, therefore, a notice of judgment was required under LSA-C.C.P. Article 1913. The record indicates that notice of judgment was mailed by the clerk of court on August 9, 1978. The motion for this appeal was obtained June 4, 1980. Therefore, on its face, the record reveals that this appeal is untimely filed.

The plaintiff-appellant has filed this motion to remand for the purpose of determining if notice of judgment was actually sent. The appellant contends that the record is in error and no notice of judgment was ever sent as required by LSA-C.C.P. 1913. The appellant has attached to his motion to remand the affidavit of Dolores A. Couvillion, the deputy clerk of court who prepared the record in the instant matter. The affiant states that a certificate of notice of judgment was not in the record and that she prepared a back-dated notice which was filed in the record. While an appellate court cannot accept such evidence for a decision on the merits, it may be considered in determining whether or not the case should be remanded to afford the appellant an opportunity to prove that the record is in error in this respect.

The request for such a correction under LSA-R.S.C.C.P. Article 2132 could have been made to the trial court as the appeal did not divest it of jurisdiction in this matter. LSA-C.C.P. Article 2088(4). However, an appellate court may also remand a case to the trial court for the purpose of correcting an error in the record. A clerk’s certificate is not conclusively presumed to be correct and may be corrected on proper showing. Soileau v. Tri-State Mutual Insurance Co., 206 So.2d 716 (La.App. 3 Cir. 1967).

In this interest of justice, we have decided to remand this case to the trial court for the taking of evidence and a decision by the trial judge on the factual issue of whether or not the clerk of court actually mailed the notice in compliance with LSA-C.C.P. Article 1913. After the trial court has ruled on this issue, the record will be returned to this court for further proceedings herein.

REMANDED.