text:
    Ronald S. RUIZ v. Dewey E. WILLIAMS, et al.
    No. CA-0105.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.

      James J. Danna, Metairie, for defendant-appellee.
    Ronald S. Ruiz, pro se.
    Before KLEES, BARRY and AUGUSTINE, JJ.
   KLEES, Judge.

Plaintiff, an attorney, filed suit to record his contingent fee against a client whom he had represented in a workmen’s compensation claim, the client’s employer and the employer’s workmen’s compensation insurer. The compensation insurer filed exceptions of prematurity, improper joinder of parties, and failure to state a cause of action. The trial court granted the exceptions and dismissed plaintiff’s suit against the compensation insurer with prejudice. Plaintiff appeals, we affirm the trial court’s ruling.

Dewey E. Williams was injured while in the course and scope of his employment with Westinghouse Elevator Company. He entered into a contingency fee contract with appellant, an attorney, wherein he assigned a 20% contingency fee to the appellant. The contract further provided that neither party may settle, compromise, dismiss, terminate or in any other manner dispose of the claim without the written consent of the other.

Appellant contends that he made formal demand upon Liberty Mutual Insurance Company, by letter, to institute compensation benefits for his client. The company complied with his demand, and did commence payment on a weekly basis. However, by letter, Mr. Williams discharged appellant, informing him that other counsel had been obtained.

Appellant claims that even after repeated requests, Mr. Williams has refused to pay him any compensation for his professional services.

Appellant alleges that his contingency fee is allowed under the Louisiana Workmen’s Compensation Law, LSA-R.S. 23:1141 and that this suit was filed in accordance with LSA-R.S. 37:218 to protect his fee.

The trial court was correct in dismissing appellant’s suit for failure to state a cause of action, because the law does not afford a remedy to appellant based upon the allegations in his petition. The mere claim in the petition that Liberty Mutual Insurance Company was the workmen’s compensation insurer of Westinghouse Electric Corporation does not in itself establish a cause of action in favor of appellant. LSA-R.S. 37:218 provides:

“§ 218. Contract for fee based on proportion of subject matter; stipulation concerning compromise, discontinuance or settlement.
By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution or defense of which he is employed, whether the claim or suit be for money or for property. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition had been made.”

It is this court’s opinion, nonetheless, that LSA-R.S. 37:218 must be read in conjunction with LSA-R.S. 44:71 which states:

“§ 71. Clerks of Court are ex officio recorders
The clerks of the several district courts throughout the state, the parish of Orleans excepted, are ex officio parish recorders of conveyances, mortgages and other acts.” (Emphasis added)

Recordations in Orleans Parish are specifically dealt with in LSA-R.S. 44:201, et seq.

Here, although appellant has filed the contract, there has been no recordation.

In Scott v. Kemper Insurance Company, 377 So.2d 66 (La.1979), at p. 70, the Supreme Court stated:

“The Obvious intent of R.S. 37:218 is to prevent a client’s discharging an attorney and thereby depriving the attorney of his earned fee. Therefore, if the attorney with a written contingency fee contract bearing the no consent stipulation ‘file[s] and records it with the clerk of court in the parish in which the suit is pending ... ’, then a defendant who disburses the settlement proceeds without ascertaining and paying the fee to which the attorney is due, will do so to his prejudice. The extinguishing effect of the settlement will therefore be suspended, as the Court of Appeal determined in this case, until recognition and payment of the fee to which the attorney is entitled, determined in accordance with the principles established in Saucier [353 So.2d 732 (La.App.1977) ]. Unlike the situation in Calk [376 So.2d 495 (La.1979)] where recordation of the contingency fee contract is irrelevant in a contest between an attorney and the client’s creditor, imposition of an obligation upon the client’s obligor in the suit to retain settlement funds until determination of fee entitlement, is dependent upon the attorney’s full compliance with R.S. 37:218, including the recordation of the contract as stipulated therein.”

In order to be enforceable, a contingent fee contract must be in full compliance with the provisions of R.S. 37:218. Thus, failure to properly record the contract means that while the contract will be the law between the parties, it will have no effect against third parties. Singleton v. Bunge Corp., 364 So.2d 1321 (La.App. 4th Cir.1978).

The exception of prematurity was valid because no workmen’s compensation suit was yet pending between Mr. Williams, Westinghouse Electric Corporation and Liberty Mutual Insurance Company. An intervention by appellant into an existing suit, however, could have withstood such an exception.

To support his contention that the trial court erred in dismissing his suit, appellant cites several cases concerning a discharged attorney’s right to his fee. However, as pointed out by appellee, in each of those cases, the attorney had properly filed and recorded his contingent fee contract and later intervened into a lawsuit brought by his former client.

This lawsuit brought by appellant was not the proper vehicle under the law to record and file the contingent fee contract.

Hence, the trial court was correct in granting appellee’s exceptions and dismissing appellant’s suit against them.

Accordingly, for the reasons discussed above, the judgment appealed from is hereby affirmed.

AFFIRMED.


source: Caselaw Access Project

author: AUGUSTINE, Judge.

license: Public Domain

text:
    Morris JONES and Robert Husband v. MALONE FREIGHT LINES, INC. and Robert Swafford, Sr.
    No. CA-0119.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    John J. Messina, New Orleans, for plaintiffs-appellees.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for defendants-appellants.
    Before BARRY, KLEES and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

Plaintiffs, Morris Jones and his guest passenger Robert Husband filed suit against Malone Freight Lines, Inc. and its employee Robert Swafford, Jr. to recover damages for personal injuries arising out of an accident which occurred on January 19, 1981 at about 4:00 p.m. in the City of New Orleans. The plaintiffs were proceeding in a southerly direction on South Broad Street in the far right lane. Robert Swafford was driving a tractor-trailer truck, owned by Malone Freight Lines, Inc. Swafford attempted to make a right turn from the center lane on South Broad Street into a driveway near the intersection of Tulane Avenue. Thereafter, the collision occurred when the plaintiff’s car was struck on the left front end by the tractor-trailer. The trial court found that the accident was caused by the defendant’s negligence in making a right turn from the center lane of traffic. The defendant Swafford appeals alleging that when there are two plausible views of the way the accident occurred, the case turns on the credibility of the witnesses and in this case the credibility of the plaintiffs was damaged by evidence of prior convictions. The defendant further alleges that the trial court committed manifest error in evaluating the credibility of the parties.

The trial court was aware that both plaintiffs had been convicted of felony crimes. Robert Husband had been convicted of carnal knowledge of a juvenile and attempted armed robbery and Morris Jones had been convicted of armed robbery. While a prior conviction is admissible and is a factor to be considered in determining the credibility of a witness, a prior criminal conviction does not destroy credibility. It is a fundamental rule of appellate review that the trial judge’s factual determination will not be disturbed in absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). This rule is particularly applicable where the testimony is conflicting and the trial court must evaluate the credibility of the witnesses. Pounds v. Ecoff Trucking, Inc. and ABC Insurance Company, 365 So.2d 934 (La.App. 4th Cir.1978.)

Here, there is sufficient evidence to furnish “a reasonable factual basis for the trial court’s finding.” Canter, supra. The plaintiffs both testified that they were proceeding within the speed limit and with caution. The defendant failed to give a turn signal. Prior to the moment of impact plaintiff Jones applied his brakes. Diagrams drawn by both plaintiffs show the impact occurred in the right lane very close to the center lane of traffic. Defendant Swafford testified that he had to make the right turn from the center lane because a car was parked too close to the driveway for him to make the turn from the right lane. He also testified that he did not realize the car had been struck until witnesses in the parking lot started waving their hands, he stopped, and alighted from the truck. Swafford also testified that he did not see the car or feel the impact. The testimony by the parties is sufficient to support the trial judge’s factual determination that the defendant was negligent in making the right turn from the center lane.

Defendant’s second allegation of error concerns the testimony of Dr. Donald Gordillo. Defendant alleges that the doctor’s testimony was exaggerated and unsupported by any medical evidence. We find the deposition of the doctor supports the trial court’s award to Morris Jones for $575.00 in medical expenses and $2,500.00 pain and suffering, and it supports the award to Robert Husband for $445.00 in medical expenses and $3,000.00 pain and suffering. Therefore, this argument is without merit.

The testimony by all witnesses in the case support the trial court’s findings. The trial court’s award is hereby affirmed.


author: BYRNES, Judge.

text:
    STATE of Louisiana v. Calvin CORLEY.
    No. KA 0183.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    William Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., Mary C. McMullan, Asst. Dist. Atty., New Orleans, for the State.
    Dwight Doskey and Frank Larre, Orleans Indigent Defender Program, New Orleans, for defendant appellee.
    Before GULOTTA and BYRNES, JJ., and G. WILLIAM SWIFT, J. Pro Tem.
   BYRNES, Judge.

Defendant, Calvin Corley, was charged by Bill of Information on Feb. 2, 1982 with the crime of simple robbery, a violation of La.R.S. 14:65. He was found guilty by a six man jury in July of 1982. The State filed a Bill of Information against Corley under the multiple offender provision of La.R.S. 15:529.1. At the hearing on this multiple bill, counsel for defendant moved orally for a new trial. The record reflects that this motion was never supplemented by a written motion as required by C.Cr.P. Art. 852. On July 15, 1982, the trial judge continued the hearing on both the multiple bill and sentencing until July 29, 1982, pending a polygraph examination of the defendant. However, before taking the exam Corley confessed to the crime, thus negating his grounds for a new trial. The next day, July 30, 1982 the trial court sentenced Corley to 10 years at hard labor. Corley has appealed this conviction and sentence, asking this court to review the record for errors patent. We have done so and, finding no error, we affirm both his sentence and conviction.


text:
    In the Interest of Kirk D. ANDERSON.
    No. CA 0115.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Anderson Council, Kenner, for plaintiff-appellant.
    Joseph C. Bartels, Asst. Dist. Atty., Juvenile Div., New Orleans, for defendant-ap-pellee.
    Before GULOTTA and BYRNES, JJ., and G. WILLIAM SWIFT, Jr., J. Pro Tern.
   BYRNES, Judge.

This is an appeal from the denial of a new trial in a juvenile criminal proceeding. Appellant, Kirk Anderson, was charged with first degree murder, a violation of La.R.S. 14:30. The facts leading to this conviction are as follows: On December 29, 1979, at approximately 12:40 AM, Gary Rivera was approached by two black males while walking along Behrman Street near its intersection with Lawrence Street in Orleans Parish. One of the two, later identified as the appellant, demanded Rivera’s wallet at gun point. Rivera complied, stating that he had no money. When inspection of the wallet confirmed this, appellant demanded Rivera’s leather jacket. Rivera refused and attempted to escape. As he fled Anderson fired the gun, hitting Rivera four times. Rivera died as a result of these bullet wounds.

In January 1980 the police received information from a juvenile in the custody of the Family Services Division that the appellant, Kirk Anderson, and one, Jimmy Lawrence, were the perpetrators, and that Anderson fired the shots which killed Gary Rivera. The informant allegedly had learned these facts directly from Kirk Anderson. Both Anderson and Lawrence were subsequently arrested and questioned. Each made statements implicating the other. A Grand Jury indicted Anderson with first degree murder. Lawrence, because of his lesser involvement, was charged and pled guilty to accessory after the fact. Anderson entered a not guilty plea. On June 27, 1980 Anderson was adjudged delinquent and found guilty as charged. Counsel for Anderson moved for a new trial on the ground that the State had failed to disclose what he contended was Brady material contained in an alleged plea bargain with Lawrence. After a hearing the motion was denied. This denial is the sole assignment of error raised on appeal.

The record reflects that counsel for Anderson filed both a Motion to Compel Disclosure and a Bill of Particulars, requesting the disclosure of all exculpatory evidence that would or would not be used at trial, “when such evidence may be favorable to the defendant and material to the issue of guilt and/or punishment.” The State answered that it had no physical evidence or statements by either the defendant or any other person which were exculpatory or favorable to the defendant. By agreement between the assistant district attorney and counsel for Anderson the trial judge then reviewed the State’s entire file in an effort to glean any statements or other evidence which could be considered Brady material. Following this review the trial court ruled that no Brady material or other material available to the defendant under the rules of discovery was contained in the State’s file.

On appeal, counsel for Anderson alleges that a plea bargain was entered into between the D A’s office and the co-defendant Jimmy Lawrence, whereby he was charged with the lesser offense of accessory after the fact in exchange for his testimony against Anderson. Since Lawrence was the only eye witness to the crime, appellant takes the position that his credibility was material to the question of Anderson’s guilt or innocence. This position would have merit were we to agree with the appellant that a plea bargain was the inducement for Lawrence’s testimony. However, having reviewed the record, we do not feel that a plea bargain was made in this case.

At the hearing on appellant’s motion for a new trial Mr. Lindsey Larson, the assistant D.A. then in charge of screening, testified concerning his contact with Lawrence and his attorney. That testimony leaves no doubt that a plea bargain was not offered to Lawrence. In fact, the record shows that Mr. Larson had made the decision to charge Lawrence as an accessory before he had any contact with either Lawrence or his attorney.

Appellant attempts to infer a plea bargain from Mr. Larson’s action in reporting Lawrence’s cooperation to the judge who tried Lawrence’s case. This, he asserts, shows that a deal was made; namely Lawrence’s testimony in exchange for a lesser charge and a leniency recommendation to the judge. A careful reading of the entirety of Mr. Lawrence’s testimony does not support this hypothesis. When asked on direct examination why he reported Lawrence’s co-operation to the judge, Larson replied;

“It is routine for me because I believe that the Judge should know that for sentencing for the purpose of giving him information he needs to sentence this person. With all the new Supreme Court guidelines, the Judge has to take into consideration when he has to sentence, I think that this is a fact that the Judge has to know about. That the defendant he is sentencing has in fact cooperated with the authorities in one way or another in the prosecution of an offense. Whether he has participated in this offense or whether or not he has — in other words, if he had pleaded guilty to an unrelated burglary and volunteered to testify in this matter and he was not involved or anything of that nature but had come forward with some information, then I think the judge should know that also. That he co-operated with the authorities. The Judge can make up his mind whether or not he has done this to get off with a light sentence or out of a sense of civic responsibility or whatever. But, my feeling in this matter the Judge should know about it so that he can make a determination as to what type of sentence Jimmy Lawrence should have gotten.”
Larson went on to say;
... I think under the law with the new Supreme Court guidelines on sentencing, that I have an obligation to bring this to the attention of the Judge.

Thus it appears that Mr. Larson’s actions were motivated not by a plea bargain with Lawrence, but by a highly commendable sense of duty to the system which he has sworn to serve. We have reviewed the entire record in this matter to be absolutely sure that no exculpatory statement was improperly withheld from the appellant at trial. We find that no such statement was in the possession of the State and therefore affirm the trial judge’s denial of appellant’s motion for new trial as well as his conviction.

AFFIRMED.


author: LOBRANO, Judge.

text:
    Ora Lee Thomas, wife of Jesse IRVIN v. Jesse IRVIN, Her Husband.
    No. 12880.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Donald P. Conlay, New Orleans, for plaintiff/appellant.
    Richard A. Swartz, Jr., Slidell, for defendant/appellee.
    Before REDMANN, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

This appeal arises from a dismissal of plaintiff-appellant’s rule for contempt, revocation and damages against Magee Finance Service of Slidell, Inc., and her ex-husband Jessie Irvin.

The pertinent facts are as follows. On February 6, 1979 a permanent injunction was issued by the Orleans Parish District Court prohibiting Jessie Irvin from mortgaging any property belonging to the community of acquets and gains that existed between him and appellant, Ora Lee Thomas Irvin. Said injunction was recorded in the mortgage records of Orleans Parish, but not the mortgage records of St. Tammany Parish.

On September 25,1979 Jessie Irvin granted a mortgage in favor of Magee Finance on St. Tammany property which had formerly been the family home. Appellant alleges that prior to the granting of the mortgage the property in question had been sold to a third party for past due taxes and then re-acquired by Jessie Irvin only.

Appellant filed a rule for eontempt, revocation and damages against both Magee Finance Service and Jessie Irvin on June 27, 1980. Said rule sought the nullity of the above described mortgage. Appellee Ma-gee Finance filed exceptions of improper venue and unauthorized use of summary procedure and Jessie Irvin filed an exception of lis pendens. The trial court main-tamed those exceptions and dismissed appellant’s rule.

Article 2592 of the La.Code of Civil Procedure lists those substantive matters for which summary procedure is authorized. The list is exclusive and not merely illustrative. State through Dept. of Highways v. Lamar Advertising Co. of La., Inc., 279 So.2d 671 (La.1973). An action for contempt, revocation and damages seeking to nullify a mortgage is not included in Article 2592 and therefore the trial court was correct in maintaining the exception of unauthorized use of summary procedure.

In addition, Magee Finance is a corporation domiciled in Washington Parish, with its principal business in St. Tammany. Further, the subject property is located in St. Tammany Parish. Certainly, Orleans Parish is not the proper venue for any action against Magee Finance. La.C.C.P. Arts. 42 and 80.

The exception of lis pendens filed by Jessie Irvin was maintained by the trial court because of the divorce judgment obtained in St. Tammany. We find no error in this ruling.

For the above and foregoing reasons the judgment of the trial court is affirmed. Appellant to bear all costs of this appeal.

AFFIRMED.

      . Jessie Irvin obtained a judgment of divorce on March 25,1980 in separate proceedings filed in St. Tammany Parish, thus the reason for his lis pendens exception.

      . Article 2592 provides:
      Summary proceedings may be used for trial or disposition of the following matters only:
      1. An incidental question arising in the course of litigation.
      2. An application for a new trial.
      3. An issue which may be raised properly by an exception, contradictory motion, or rule to show cause.
      4. An action against the surety on a judicial bond after judgment has been obtained against the principal or against both principal and surety when a summary proceeding against the principal is permitted.
      5. The homologation of a judicial partition, of a tableau of distribution or account filed by a legal representative, or of a report submitted by an auditor, accountant, or other expert appointed by the court; and an opposition to any of the foregoing, to the appointment of a legal representative, or to a petition for authority filed by a legal representative.
      6. A habeas corpus, mandamus, or quo war-ranto proceedings.
      7. The determination of the rank of mortgages, liens and privileges on property sold judicially, and of the order of distribution of the proceeds thereof.
      8. The original granting of, subsequent change in or termination of, child custody, alimony, child support in behalf of minor children, and support between ascendants and descendants; and
      9. All other matters in which the law permits summary proceedings to be used.


author: WARD, Judge.

text:
    Thomas TOMMASEO v. Deborah Guidroz TOMMASEO.
    No. CA-0145.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Edmond H. Fitzmaurice, Jr., Covington, for plaintiff-appellee.
    Bruce G. Reed, New Orleans, for defendant-appellant.
    Before REDMANN, WARD and LOBRA-NO, JJ.
   WARD, Judge.

This appeal arises from a suit for divorce that Thomas Tommaseo filed against his wife Deborah Guidroz in the Thirty-Fourth Judicial District Court. Deborah Guidroz objected to the jurisdiction of the Court because, she claims, there had not been service of process. She filed a declinatory exception but the Trial Judge dismissed the exception and after a trial on the merits, judgment was rendered against her.

The issues in this appeal are two: Was there service of process, either personal or domiciliary, on Deborah Guidroz? If there was not, has Deborah Guidroz waived service?

We hold there was neither service of process nor waiver of service. We also hold that all proceedings are null, and we reverse.

The significant events in this lawsuit began July 10,1981, when Thomas Tommaseo filed his petition for divorce. On July 17, 1981, a deputy sheriff served a copy of both the citation and the petition on Deborah Guidroz’s brother, Sgt. Edward W. Guidroz, Jr., at his office in Jackson Barracks in the City of New Orleans. The deputy sheriff endorsed a copy of the citation, on the back:

On the 17th day of July, 1981 served a copy of the within citation and accompanying petition Deborah Guidroz Tomma-seo by personal service on Sgt. Guidroz. Return same day.

The deputy sheriff signed it in the appropriate place.

No one seriously contends that this was service of process by personal service described by LSA-C.C.P. Article 1232. Yet counsel for Thomas - Tommaseo contends that this was domiciliary service as defined by LSA-C.C.P. Art. 1234.

Art. 1234. Domiciliary service
Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing therein as a member of his domiciliary establishment.

The deputy sheriff’s endorsement is otherwise and specific. His return on the back of the citation indicates service was “by personal service on Sgt. Guidroz”. Counsel for plaintiff contends that the copy of citation and service of process is not part of the record; yet by law it must be.

Art. 1292. Sheriff’s return
The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. The court, at any time and upon such terms as are just, may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Further, Counsel for Deborah Guidroz referred to it as part of record of these proceedings when he examined Sgt. Guidroz during the trial. Tr. p. 51.

If this were merely a clerical error, the Trial Court “may allow any process or proof of service thereof to be amended, .... ” LSA-C.C.P. Art. 1292, supra, and Counsel contends that the Trial Court correctly amended the sheriff’s return to show domiciliary service, and he argues, unconvincingly, that Deborah Guidroz lived with her brother Sgt. Edward Guidroz when suit was filed. The record does not show the Trial Court amended the service, but even if it did, we are not convinced the Trial Judge may amend the service without a hearing, and in the absence of a hearing, without some proof that the error is merely a clerical error since the return cannot be amended if “material prejudice would result to the substantial rights of the party against whom the process issued.” LSA-C. C.P. Art. 1292, supra. The record not only does not show an amendment, it does not show either a hearing or evidence to support an amendment to the return.

Moreover, even if the Trial Judge had amended the return, the amendment would not cure the lack of compliance with Art. 1234 which requires that domiciliary service be made “at the dwelling house or usual abode of the person to be served... . ” Although on October 13, 1981, the Trial Court dismissed the declina-tory exception, on the date of trial, July 1, 1982, in unusual proceedings during trial, the Trial Court permitted counsel for Deborah Guidroz to reurge his declinatory exception and to produce evidence, the testimony of Sgt. Guidroz, to show that service was made to him at his office. Sgt. Guidroz testified not only that service was made at his office but also that Deborah Guidroz did not live with him.

Considering the return on the service and the testimony during trial, it is clear that there was not domiciliary service. We therefore conclude there was not service of citation either by personal or domiciliary service, and the Trial Judge erred when he did not maintain the declinatory exception.

Because there was not service of citation, the Trial Court did not have jurisdiction over the defendant. La.C.C.P. Art. 6 provides:

Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon:
(1) The service of process on the defendant, or on his agent for service of process;
(3) The submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto.

Counsel for Thomas Tommaseo relies upon this same Article, particularly paragraph 3, and on Art. 7, and claims there was an implied waiver of objection to the jurisdiction. La.C.C.P. Art. 7 provides:

Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
(1) Entry or removal of the name of an attorney as counsel of record;
(2) Extension of time within which to plead;
* * # * * *
When a defendant files a declinatory exception which includes a prayer for the dismissal of the action on the ground that the court has no jurisdiction over him, the pleading of other objections therein, the filing of the dilatory exception therewith, or the filing of the peremptory exception or an answer therewith when required by law, does not constitute a general appearance.

These are the significant facts relied upon by counsel for Thomas Tommaseo to prove waiver. After the filing of the petition and after the service of the citation and petition on Deborah Guidroz’s brother, counsel for Deborah Guidroz on' July 31, 1981, filed a motion for extension of time within which to plead. The motion was granted, and the Trial Court extended the time until September 4, 1981.

On August 3, 1981, before the expiration of the extension of time, counsel for Thomas Tommaseo filed a notice to take depositions of his wife and others and, at his request, subpoenas were issued by the Court ordering them to appear for the depositions. La.C.C.P. Art. 1437 provides that “[ajfter commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of fifteen days after service of citation upon any defendant. ...” Counsel did not request leave of court to take a deposition, in spite of the obvious defect in service of citation.

Although Deborah Guidroz was not served with the citation and petition, she and the others were personally served with subpoenas for the taking of their depositions. Nevertheless, they refused to appear for their depositions. Thereafter, on August 19, 1981, counsel filed a rule to show cause why they should not be held in contempt of court, and the Trial Judge ordered Deborah Guidroz and the others to show cause on September 4, 1981.

On that date, which was also the last date to file pleadings, counsel for Deborah Gui-droz filed a declinatory exception to the jurisdiction of the Court, and, after reserving Guidroz’s rights raised by the exception, filed a motion for continuance of a hearing on plaintiff’s motion for contempt. The Court took under advisement counsel’s dec-linatory exception, deferred ruling on the motion for contempt, but ordered Deborah Guidroz and the others to appear in Court for their depositions September 9, 1981. They appeared for their depositions under threat of contempt, and their depositions were taken.

After the depositions, counsel for Deborah Guidroz filed an answer, reserving all rights under the declinatory exception, a motion to strike, and also propounded Interrogatories to the plaintiff. Thereafter, on October 13, 1981, the Trial Judge dismissed the declinatory exception, and the case was brought to trial July 1, 1982. As we have said, during trial counsel for Deborah Gui-droz reurged the declinatory exception, and he produced evidence to prove it.

We do not construe any action of defendant’s counsel as a waiver of the objection. La.C.C.P. Art. 7 is controlling and provides that counsel does not waive the objection to jurisdiction by filing for an extension of time or by filing an answer when he reserves rights under the exception. According to C.C.P. Art. 7, when a defendant files a declinatory exception which includes a prayer for the dismissal of the action on the ground that the court has no jurisdiction over him, the pleading of other objections therein, the filing of the dilatory exception therewith, or the filing of the peremptory exception or an answer therewith when required by law, does not constitute a general appearance.

Although counsel suggests there was waiver when Deborah Guidroz and her counsel appeared for trial on the merits, the record does not show waiver. The record shows persistent, strenuous, but futile efforts to deny that the Court had jurisdiction: Counsel objected to the trial and reurged the declinatory exception; and Counsel produced evidence during trial to prove the declinatory exception. Waiver, either express or implied, means to submit to the jurisdiction of the Court, and under these circumstances, appearance for trial was not a waiver of the objection. Cook v. Deshautreaux and Klein Pediatric Clinic, 294 So.2d 591, (La.App. 4th Cir.1974), writ denied 296 So.2d 834, (La.1974).

Further we do not believe that when Counsel has unsuccessfully urged a declina-tory exception, he should be faced with only two choices, both bad: Either to respond to the trial subpoenas and waive the declinato-ry exception to jurisdiction, or refuse to appear and risk being cast in judgment or held in contempt.

In sum, we conclude that there was neither personal nor domiciliary service of process, nor was there a waiver of the objection to jurisdiction, and all proceedings are null.

We reverse. All costs of trial and appeal are to be paid by Thomas Tommaseo.


author: WILLIAMS, Judge. SCHOTT, Judge,

text:
    Arthur L. FLOOD v. HUB AUTO PARTS, INC. and Peninsula Fire Insurance Company.
    No. CA-0138.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Writ Denied March 4,1983.

      Joseph P. Williams, Jr., Metairie, for plaintiff-appellee.
    James L. Donovan, Donovan & Lawler, A Proféssional Law Corp., Metairie, for defendants-appellants.
    Before SCHOTT, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This appeal arises from a judgment in favor of plaintiff, Arthur L. Flood, against defendants-appellants, Hub Auto Parts, Inc., and Peninsula Fire Insurance Co., finding plaintiff totally and permanently disabled from a back injury, and awarding worker’s compensation benefits in the amount of $120.00 per week commencing January 1, 1981. The judgment also provided all accrued amounts be paid in a lump sum, with legal interest from the due date of each past due installment until paid. Defendants were further ordered to pay plaintiff’s medical expenses of $1,769.00, plus expert fees of $300.00, and all costs of the proceedings below. From this judgment, defendants have suspensively appealed.

Plaintiff was employed by defendant, Hub Auto Parts, Inc., as a truck driver/delivery person. At the time of the alleged accident, plaintiff was approximately fifty-one years old and had worked for Hub Auto approximately sixteen months.

Occasionally, plaintiff helped out around the store when there were no deliveries to be made. On May 26,1980, the date of the accident, plaintiff was at the store assisting his supervisor, Mr. Buck Suarez, unload a truck. The driver placed several cartons, weighing 10 to 30 lbs. each, on the tailgate of the truck. Plaintiff would either pick up each carton, or else one would be tossed to him, by Mr. Suarez, to be stacked on the floor. He had performed this operation on only three or four previous occasions during his employment with Hub Auto. Plaintiff did not remember feeling any pain or discomfort at the time of the unloading. Later that day at home, plaintiff experienced a sharp pain in his back as he arose from his chair to get a cup of coffee. Testimony by plaintiff indicated the pain was excruciating. The day after the incident plaintiff reported the injury to Mr. Suarez and also consulted Dr. Rudlof Spoerri, a chiropractor. Dr. Spoerri had x-rays made of plaintiff’s back and these revealed a subluxation of the lumbar spine at the L4-L5 level. Plaintiff was under Dr. Spoerri’s care until June 14, 1980.

Plaintiff returned to his job with Hub Auto but missed several days of work during the next five or six months. On November 13, 1980, plaintiff sought further medical attention including tests and treatment for back pain, at the Veteran’s Administration Hospital in New Orleans. A myelogram performed on plaintiff indicated a herniated disc at the L4-L5 level. Plaintiff remained in the hospital until the middle of December 1980, when he was discharged. His employer, meanwhile, had hired another driver and plaintiff learned that he had been fired.

Plaintiff sought similar employment elsewhere in' the city, but could not secure any. At one auto parts store he was turned down solely because he had had a back injury. Plaintiff has not worked since he was discharged from Hub Auto.

On November 25,1981, plaintiff was seen and evaluated by Dr. Chisesi, an orthopedic surgeon. At trial, Dr. Chisesi concurred with the findings of the V.A. Hospital and Dr. Spoerri.

The issue presented on appeal deals solely with the trial court’s evaluation of the credibility of the witnesses and evidence presented. Plaintiff alleges that he was injured while unloading a truck for his employer. Defendants contend that the injury could have occurred as a result of a variety of common activities in everyday life, some as simple as getting up out of a chair. The trial court concluded an injury did occur, and was sufficiently work-related to justify an award of worker’s compensation. To reach this decision the trial court was required to resolve the following questions of fact:

1) Do we have a work-related activity in the present case; and,
2) If so, was plaintiff injured as a result of that accident/activity.

The trial court decided both questions in the affirmative.

In order to recover worker’s compensation benefits in Louisiana a claimant must prove that the injury, for which benefits are sought, was sustained in an accident arising out of and in the course and scope of his employment. La.R.S. 23:1031.

As in all civil actions the plaintiff in a worker’s compensation case must establish causation by a preponderance of the evidence. Prim v. The City of Shreveport, 297 So.2d 421 (La.1974); Wyman v. West Jefferson General Hospital, 416 So.2d 606 (La.App. 5th Cir.1982). This burden is met when the evidence, taken as a whole, shows that a causal connection between the employment activity and the injury is more probable than not. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971); Hall v. Great Atlantic and Pacific Tea Co., Inc., 297 So.2d 527 (La.App. 4th Cir.1974). It is not necessary to show that the injury was caused by unusual activities of the employee or that those activities were the exclusive cause of the accident. It is only necessary to show that the death or disability was caused or precipitated by the employee’s usual and customary activities or other factors directly connected with his employment. Ferguson v. H.D.E., Inc., 270 So.2d 867 (La.1972). Nor is it required that the claimant establish the exact cause of the injury in order to recover benefits; it is only necessary to show that somehow the work caused the accident. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). Malone & Johnson, Workmens Compensation Sec. 252 p. 547 (2nd. Ed. 1980).

Although only plaintiff and his doctor testified at trial, no error results in accepting only plaintiff’s word of the injury, provided there is other credible corroborating evidence. Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La.App. 3d Cir.1976).

The determination of a causal relationship between a worker’s employment and injury or death is a question of fact for the trial court. On appellate review this factual finding should not be disturbed when there is evidence before the court which, upon its evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings unless those findings are clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979); Rivers v. Macco, 391 So.2d 873 (La.App. 4th Cir.1980).

The trial judge’s findings on the question of causation must be given great weight. Gradney v. Vancouver Plywood Company, Inc., 299 So.2d 347 (La.1974); Thompson v. Natchitoches, supra. In Matte v. Power Rig Drilling Co., Inc., 260 So.2d 19 (La.App. 3d Cir.1972), a claimant had admittedly concealed his back injury from his foreman because he feared the loss of his job as a roughneck. The Third Circuit affirmed the trial court’s determination that the injury was work-related. Great weight was attached to the trial judge’s evaluation of credibility.

In the instant case, this court cannot conclude that the trial court was clearly wrong in its determination of a causal relationship between Mr. Flood’s employment and his injury. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our careful review of the record reveals ample evidence to sustain the lower court’s decision.

For the foregoing reasons, the judgment and award of compensation of the trial court is affirmed. Costs of this appeal are to be borne by each party.

AFFIRMED.

SCHOTT, J., dissenting.

SCHOTT, Judge,

dissenting:

Workers’ compensation benefits are payable to an employee who is injured in a job related accident. R.S. 23:1031. R.S. 23:1021 provides the following definition of an accident:

“ ‘Accident’ means an unexpected or unforeseen event happening suddenly or violently with or without human fault and producing at the time objective symptoms of an injury.”

In order for plaintiff to recover in this case he had to prove that he had an accident on the job, but there is no such evidence whatsoever. The only accident plaintiff testified about was the one which occurred in his own home long after his work day was completed. He attempted to relate this incident to his work activities during the day but did not even pretend that there was an accident on the job. He had been unloading some rather light boxes during the day but never felt any pain at this time.

Dr. Chisesi did not supply this missing evidence of an accident. He examined plaintiff 18 months after his injury and speculated as to a possible connection between what plaintiff was doing during his work day and the accident plaintiff had after working hours in his home. Interestingly, Dr. Chisesi stated on cross examination that he originally made this connection because of his impression that plaintiff felt some pain on the job — an impression that was clearly erroneous. His testimony on redirect examination was that anything is possible and a connection between his work and his accident at home was a reasonable possibility.

There are compensation cases in which awards were made where medical testimony established a reasonable possibility of a connection between a work related accident and a subsequent disability, as in Allor v. Belden Corp., 393 So.2d 1233 (La.1981) and Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969), but in these cases plaintiff proved that there was an on the job accident with legal certainty. The proof was not merely that such an accident was possible. Previous cases have never relieved the plaintiff of the obligation to prove an on the job accident as a prerequisite for recovery of compensation benefits.

Although we must, on appellate review, defer to the trial judge on findings of fact and inferences to be drawn therefrom this is not to say that a trial judge may find facts which are not contained in the record. He may not produce an accident from sheer speculation when the plaintiff himself was unaware of any and no witness testified as to one having occurred on the job.

This is not a simple case of fact review. The trial court should be reversed because this plaintiff is not entitled, as a matter of law, to recover where he had no accident on the job.


author: G. WILLIAM SWIFT, Jr., Judge Pro Tem.

text:
    Joseph W. FREELOW v. Herbert SUMRALL, Administrator of the Louisiana Department of Employment Security and Orleans Manufacturing Company.
    No. CA-0150.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Sidney D. Watson, New Orleans Legal Assistance Corp., New Orleans, for plaintiff-appellant.

      Before GULOTTA and BYRNES, JJ., and SWIFT, J. Pro Tem.
   G. WILLIAM SWIFT, Jr., Judge Pro Tem.

This is an appeal from a judgment of the district court affirming the decision of the Board of Review of the Louisiana Employment Security Office which denied unemployment compensation benefits to appellant Joseph W. Freelow. No oral or written reasons for judgment were stated by the court. We reverse.

In these unemployment compensation cases the scope of appellate review is defined in R.S. 23:1634 as follows:

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

See also Dunigan v. Admin, of Dept. of Employment Sec., 351 So.2d 807 (La.App. 1 Cir.1977).

In the instant case the referee made the following findings of facts:

“The claimant worked for the named employer from October 24, 1979 until August 22,1980 as a cabinet assembler. He was scheduled to work from 7:00 a.m. to 3:30 Monday through Fridays and was earning $8.75 per hour at the time of his separation. The claimant was discharged by Mr. Eno Kliebert, foreman. At the time of the discharge, the claimant was informed that his discharge was due to making derrogatory statements about his supervisor. On August 22, 1980, the claimant along with another employee was being counselled by their supervisor, Mr. Kliebert, concerning their job performance. The claimant had received verbal warnings from his supervisor concerning his job performance, but this was the first official warning concerning the issue. While Mr. Kliebert was talking to claimant concerning his job performance, the claimant accused him (Mr. Kliebert) of not liking him because he was always given odd jobs to do while the other workers were not issued duties. The claimant stated to Mr. Kliebert that he did not know his own job and that he was a fool. At that point, the claimant was discharged by Mr. Kliebert for making derrogatory statements to his supervisor, which was against company policy as issued to the claimant in his employee’s book upon hire with the employer.”

The referee rendered the following written opinion which was affirmed by the board of review and the district court:

“R.S. 23:1601(2) provides that an individual shall be disqualified for benefits if the Administrator finds that he has been discharged for misconduct connected with his employment. Such disqualification shall continue until such time as the claimant can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance law of any other state or the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and has not left his last work under disqualifying circumstances.
“The facts in this case clearly show that the claimant was discharged for making derrogatory and malicious statements to his supervisor, which were against well-known company policy. The statements made to the supervisor by the claimant was without provocation. Therefore, considering all factors in this case, it is found that the claimant was discharged for misconduct in connection with his employment.”

In Johnson v. Brown, 134 So.2d 388 (La.App. 3 Cir.1961), Judge Albert Tate, Jr., as organ of the court, stated:

“We may at the outset state that a single hotheaded incident cannot be considered the type of premeditated and seriously improper conduct which constitutes, within the meaning of the statute, the serious cause sufficient to deny unemployment compensation benefits to an employee. An employer has, of course, the legal right to discharge an employee without cause or for any cause; but such employee ordinarily is upon application entitled to unemployment compensation benefits when his terminated employment is covered by the Louisiana Unemployment Compensation Law. LSA-R.S. 23:1471 et seq. These benefits are not paid primarily to reward the employee or to punish the employer, but rather to protect the stability of the state of the family.
“As the Louisiana legislature declared in enacting this beneficial statute, ‘As a guide to the interpretation and application of this Chapter, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to health, morals and welfare of the people of this state. Unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life.’ LSA-R.S. 23:1471.” (at 388-389)

Also see Beaird-Poulan, Inc. v. Brady, 154 So.2d 589 (La.App. 3 Cir.1963).

Joseph Freelow has no prior history of any “hothead” incidents. He did not use vulgar words, nor did he attempt to smear the business reputation of the company by which he was employed. The language complained of occurred in the course of a conversation between appellant and his immediate supervisor in the presence of a fellow employee as the supervisor was telling the two they were not turning out enough work. The appellant’s remark was undoubtedly tactless, and should not have been made. However, the record establishes that this was a single hotheaded incident which, under the totality of the circumstances, fell short of disqualifying “misconduct,” as defined in our jurisprudence. See Horns v. Brown, 243 La. 936, 148 So.2d 607 (La.1963) and Morgan v. Lockwood, 395 So.2d 879 (La.App. 2 Cir.1981).

For the foregoing reasons, the judgment of the district court is reversed and this case is remanded to the board of review to grant unemployment compensation benefits to the claimant in accordance with law.

REVERSED AND REMANDED.


author: GRISBAUM, Judge.

text:
    NEW ORLEANS FEDERAL SAVINGS AND LOAN ASSOCIATION v. Harry LEE, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson, and A. Mason Barnes, III.
    No. 5-341.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      Edwards & Loeb, David C. Loeb, Gretna, for plaintiffs-appellees.
    Santo A. Dileo, New Orleans, for defendant-appellant.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   GRISBAUM, Judge.

In this case, the holder of a collateral mortgage sued to enjoin the sale at public auction of the mortgaged property. The trial court granted a permanent injunction against sale of the land. Appellant, New Orleans Federal Savings and Loan Association, claims the permanent injunction was improperly granted and their collateral mortgage outranked the judicial mortgage which the land was being sold to satisfy. Because we reverse on the initial issue we do not reach the issue of ranking.

On August 9, 1979 Southern Investors Property Management (Southern) recorded a $150,000 act of collateral mortgage against land owned by mortgagee Gulf South Bank. In February of 1980 Gulf South loaned Southern $100,000 represented by a hand note and secured by the $150,000 collateral mortgage. On March 27,1981 A. Mason Barnes III was awarded judgment against Southern for $6,000, which judgment was recorded on May 11, 1981. On May 20,1981 Southern received a loan from New Orleans Federal for $300,000, $114,578 of which was used to pay off Gulf South. On March 3, 1982 property belonging to Southern was sold at public auction by the Sheriff to satisfy the judicial mortgage of Barnes, but for less than was necessary to satisfy the mortgage of New Orleans Federal. New Orleans Federal filed for a temporary restraining order, a preliminary injunction, and a permanent injunction to stop the Sheriff from transferring the property. On March 15, 1982 the temporary restraining order was signed and on March 24 judgment was signed in favor of New Orleans Federal against Harry Lee, Sheriff and Mason Barnes, granting a permanent injunction against the sale of Southern’s property.

The permanent injunction was improperly issued. In the order granting the temporary restraining order, the court ordered a hearing on the preliminary injunction be held March 15, 1982.

It is from that hearing set on the preliminary injunction that the permanent injunction was granted. The jurisprudence of this state has established the distinction between a preliminary injunction and a permanent injunction. A preliminary injunction is interlocutory in nature and designed to preserve the status quo until a determination can be made on the merits of the controversy. Consequently, a preliminary injunction may issue merely on a prima facie showing by the plaintiff that he is entitled to the relief sought and that he would suffer irreparable injury if the same is not granted. The issuance of a permanent injunction, however, takes place only after trial on the merits, in which the burden of proof must be founded on a preponderance of the evidence, rather a prima facie showing. Picard v. Choplin, 306 So.2d 918 (La.App. 3d Cir.1975); State Board of Education v. Anthony, 289 So.2d 279 (La.App. 1st Cir.1973).

As stated, the hearing held below was on a rule for a preliminary injunction. There has not as yet been a trial on the merits of the case. At the hearing, only the appellee called witnesses. It is not known whether the appellant would have introduced evidence of its own had it been a trial on the merits. Also, it is not known whether the judgment of the trial court was based on a decision that the case had been proven by a prima facie showing or by a preponderance of the evidence.

A permanent injunction should not be granted unless the parties know their case is to be tried on the merits and have an opportunity to prove or defend their case on a preponderance of the evidence. Therefore, the judgment of the trial court can only be considered as having granting a preliminary injunction.

For the reasons assigned, the judgment of the trial court is reversed and the case is remanded for a trial on the merits.

REVERSED AND REMANDED.

      . There is no indication in the record that the parties stipulated to allowing the hearing on the preliminary injunction serve as one on a permanent injunction.


text:
    Dianne HALLIDAY, Mother of Joey Popham v. WATER WORKS OF LOUISIANA, INC.
    No. 5-371.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    C.J. Calhoun, New Orleans, for plaintiff-appellee.
    O’Keefe, O’Keefe & Berrigan, Dennis J. Phayer, New Orleans, for defendant-appellant.
    Before KLIEBERT, GRISBAUM and DUFRESNE, JJ.
   GRISBAUM, Judge.

In this personal injury suit, a default judgment was confirmed against appellant, Water Works of Louisiana, Inc. Appellee, Dianne Halliday, suing on behalf of her minor son, Joey Popham, sought damages for the injuries to her son’s mouth when he collided with someone in a tunnel on appellant’s water slide. The trial court awarded $20,000 plus medical specials of $3,245. The issues on appeal are whether a prima facie case of negligence was proven and whether the introduction of medical bills was hearsay and inadmissible. Because we find negligence was not proven, we do not reach the second issue. We reverse and remand.

On September 17,1980, Joey Popham and a friend went to the Water Works on Berh-man Highway in Jefferson Parish. The two boys had been down the slide a number of times when Joey collided with an unidentified person in a tunnel on the water slide and broke three of his teeth. He was taken to a hospital for stitches and saw a number of dentists and other specialists for a period of seven months following the accident.

Appellee filed suit on July 31, 1981, and filed a supplemental and amending petition on September 11,1981. Both petitions were served on the appellant’s agent for service of process. The trial court granted a preliminary default on November 4, 1981 and after hearing the testimony of Joey Pop-ham and his mother (Dianne Halliday) on December 2, 1981, confirmed the preliminary default and rendered judgment in favor of appellee.

Louisiana law requires a judgment of default to be confirmed by proof of the demand sufficient to establish a prima facie case. La.C.C.P. art. 1702. A prima facie case is established by proving with competent evidence the essential elements of the petition as fully as if each of the allegations had been specifically denied. Cowell v. Dairyland Insurance Co., 399 So.2d 701 (La.App. 1st Cir.1981); Jim McCary, Inc. v. Price, 391 So.2d 921 (La.App. 2d Cir.1980); Dozier, etc. v. Burleigh, 380 So.2d 197 (La.App. 3d Cir.1980).

The only evidence introduced at the confirmation of the default hearing was the testimony of Joey and his mother, Mrs. Halliday, and the introduction into evidence of various medical bills and letters. Mrs. Halliday was not present at the water slide when the accident occurred. She testified, therefore, only as to the medical and emotional problems which ensued. Joey’s testimony also consisted mostly of what occurred after the accident. His testimony regarding the accident consisted of the questions and answers as follows:

Q. Tell the Court what happened on September 17, 1980 approximately 7 p.m. at night.
A. Me and my friend Darren had gone to the Water Works on Behrman Highway.
Q. Is this in Jefferson Parish?
A. Yes, sir. We were going up the slide. We had been there and up a couple of times. One time I was coming down. I lost my friend Darren. We got separated. I looked behind me while I was going down the slide. I was on my knees on the mat. I looked behind me to see if Darren was there. When I was looking behind me, there was somebody in the tunnel. We collided in the tunnel. I fell forward and broke three of my teeth and cut my chin.
Q. Now, this tunnel you referred to, this is a tunnel that is constructed on the water slide, is it?

No other evidence was admitted which had any bearing on the finding of negligence.

At the end of Joey’s testimony, appellee’s attorney stated to the court “At this time before I call another witness, if the Court would like to refer to a signed statement by the special-duty police officer who was on duty that night in lieu of this testimony.” The court simply asked for appellee’s next witness and no further reference was made to the letter. There is no indication in the record whether the court did in fact refer to the letter. The letter is, however, in the record before this court. It is a signed statement by a man claiming he was employed as a deputy sheriff and was on special detail at the Water Works at the time of the accident. He claimed that in the months he had worked there he was aware of at least two or three incidences similar to Joey’s accident. He claimed that on each of the prior occasions the owner of the Water Works had been notified that “kids were being knocked over as they entered the tunnel by other kids who were staying in the tunnel.” The letter was not formerly introduced into evidence and properly so. The man was not called as a witness and no foundation was laid. This statement was not verified in any manner. Although this court cannot know if the trial judge did take the letter into consideration in its judgment it clearly should not have. This court cannot consider it in our review of the case.

This court can find no evidence to support a finding of negligence. A simple statement that an accident occurred in the tunnel on a water slide does not carry the burden of proving a prima facie case. Therefore, the trial judge was clearly wrong in holding that it did.

For the reasons assigned, the judgment of default is reversed and the case is remanded for a new trial.

REVERSED AND REMANDED.


text:
    SOUTH CENTRAL ROOFING & SHEET METAL SUPPLY, INC. v. Johnnie McKAY.
    No. 5-326.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    William Noland, New Orleans, for plaintiff-appellant.
    Rudman, Howard, Laudumiey & Mann, Laurence D. Rudman and Dennis S. Mann, New Orleans, for defendant-appellee.
    Before BOWES, CURRAULT, and GRISBAUM, JJ.
   GRISBAUM, Judge.

This case presents a question of whether a trial court sustaining an objection of opposing counsel, correctly excluded questions concerning the corporation as the “alter ego” of the sole shareholder on the basis that this issue was not presented by the pleadings. Plaintiff, South Central Roofing & Sheet Metal Supply, Inc., initially filed a suit on an open account against Johnnie McKay individually and d/b/a J. McKay. Defendant filed an exception of no cause of action. The trial court heard arguments on this exception but referred it to the merits. Plaintiff filed a supplemental and amended petition which included as defendants the corporations, J. McKay Roofing Company, Inc. and J. McKay Roofing & Supply Company, Inc., as well as Johnnie McKay individually. After trial, the court entered judgment in favor of plaintiff and against defendant corporation J. McKay Roofing Company, Inc. but dismissed plaintiff’s claim against defendant Johnnie McKay individually. Plaintiff, South Central, appeals only that part of the trial court’s judgment which dismisses its claim against Johnnie McKay individually. We affirm.

Plaintiff’s initial petition against Johnnie McKay individually and d/b/a J. McKay, J. McKay Roofing Company, Inc., and J. McKay Roofing & Supply Company, Inc., claimed Johnnie McKay was indebted to plaintiff for the sale and delivery of roofing materials to McKay. A list of payments made on the open account and an itemized statement of the account was included. Plaintiff’s supplemental and amended petition merely included the additional corporation defendants of J. McKay Roofing Company, Inc. and J. McKay Roofing & Supply Company, Inc. All other allegations remain the same indicating that this suit is one on an open account against an individual Johnnie McKay and one or more corporations under the name of J. McKay Roofing Company, Inc. and/or J. McKay Roofing & Supply Company, Inc.

At the trial, plaintiff attempted to introduce evidence to prove that J. McKay had failed to conduct his business as a corporation distinct from himself; however, defendants objected to any line of questions in that area on the grounds that piercing the corporate veil was not an issue raised by the pleadings, and, therefore, plaintiff was expanding its pleadings. At that time, plaintiff failed to specifically move to amend its pleadings. Instead, objection was entered to the court’s ruling excluding plaintiff’s evidence, and a proffer was offered.

We must decide whether the issue of piercing the corporate veil was presented by the pleadings, and, if not, whether the trial court committed reversible error in sustaining defendants’ objection to questions concerning this issue. However, before discussing this issue, we note that the trial court improperly referred the exception of no cause of action to the merits. La.C.C.P. art. 929 requires that a preempto-ry exception pleaded prior to an answer be tried and decided in advance of the trial of the case. However, this was harmless error as will be shown later in this opinion. We also note that under the facts of this case, a preemptory exception designated as improper party defendant rather than an exception of no cause of action, properly addresses the problem of suing the incorrect person or entity.

Addressing the central issue of this case, we look to La.C.C.P. art. 865 which states, “[e]very pleading shall be so construed as to do substantial justice.” Viewing the pleadings as a whole, we do not find that the issue of piercing the corporate veil was raised by the allegations made. By merely filing suit on an open account against Johnnie McKay individually and against corporations he allegedly owned does not present an issue of piercing the corporate veil. The allegations in the petition merely alleged the indebtedness of the defendants on an open account. With reference to the second question, the trial court did not commit reversible error by excluding questions concerning the issue of piercing the corporate veil. La.C.C.P. art. 1154 provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence. (Emphasis added.)

While this article provides that the court may allow amendment of the pleadings, it recognizes that a defendant should not be prejudiced in the maintaining of his defense. Townsend v. Cleve Heyl Chevrolet-Buick, Inc., 318 So.2d 618, 623 (La.App. 2d Cir.1975) sets forth a principle we find helpful in resolving this question. The court states:

“... When the pleading in question is construed in its entirety and with all other matters occurring during trial which relate to the pleading, and it is more reasonable than not to conclude that the adverse party was given fair notice and was fairly informed that the pleading’s intended substantive result and procedure by which this result was intended to be accomplished, the pleading will be held to be legally effective and to satisfy the requirements of the Code of Civil Procedure which are raised in objection to the pleading.”

We do not find that defendants have had fair notice that piercing the corporate veil at issue by a suit which only alleged indebtedness against an individual and a corporation or corporations. Moreover, even if defendant had proper notice of this issue and plaintiff’s proffered evidence had been admitted at trial, after review of the entire record and the proffered evidence, we find insufficient evidence to enable a court to disregard the corporate entity and hold Johnnie McKay individually responsible. See, Kingsman Enterprises v. Bakerfield Elec. Co., 339 So.2d 1280, 1283 (La.App. 1st Cir.1976).

For the above reasons, we affirm the trial court’s judgment.

AFFIRMED.


text:
    Margaret CRUSO and George Cruso v. GREATER LAKESIDE CORPORATION.
    No. 5-323.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      Bagot & Gniady, John H. Gniady, New Orleans, for plaintiffs-appellants.
    Bailey & Leininger, Samuel J. Muldavin, Metairie, for defendant-appellant.
    Before BOWES, CURRAULT and GRISBAUM, JJ.
   GRISBAUM, Judge.

Margaret and George Cruso brought suit to recover damages for injuries sustained by Margaret Cruso when she tripped over a concrete parking divider located in defendant Greater Lakeside Corporation’s parking lot at the Lakeside Shopping Center. Plaintiffs appeal from a judgment in favor of defendant. We affirm.

There are two issues presented for consideration: (1) Whether the trial court erred by restricting testimony of plaintiffs' expert, and (2) whether the trial court improperly instructed the jury by failing to include instructions on strict liability.

On the evening of March 24, 1978, plaintiff, Mrs. Cruso, and her aunt went to Lakeside Shopping Center located in Metairie, Louisiana. Plaintiff parked her car and walked through the parking lot across a row of cars and consequently across the yellow lines painted on the blacktop indicating the parking spaces. As she passed the last car in the row, she tripped and fell over a raised yellow concrete parking divider which separated the parking area from an adjacent traffic line.

During the jury trial, plaintiff qualified Herman L. Parrish as an accident reconstruction expert. Defining his area of expertise, Mr. Parrish testified that an accident reconstruction expert inspects an accident scene examining evidence in the area and then applies the law of physics to determine the cause of the accident. He testified that he investigated the scene of the accident. He provided the court with a detailed description of the parking lot, the parking spaces, and the concrete barrier. However, when this expert was questioned as to whether the concrete barrier configuration and painted lines presented any visual problems, the trial court sustained an objection to such testimony. Although this court recognizes a witness’s opinion or impression is generally not allowed, a witness designated and qualified as an expert is able to express an opinion based on his area of expertise. See, State v. Wheeler, 416 So.2d 78, 80 (La.1982); Bechtel v. Entringer Bakeries, Inc. d/b/a McKenzie’s Pastry Shoppes, 422 So.2d 1299 (La.App. 5th Cir.1982); McCormick on Evidence §§ 10, 11, 12, 13 (1972). However, as an accident re-constructionist, Mr. Parrish was qualified to give his opinion only as it related to the cause of an accident derived from his application of physics to physical evidence. He was not qualified as a safety engineer or an eye specialist, and consequently could not give an opinion as to whether there was a visual difference between the barriers and the yellow lines, whether the concrete barrier could be seen only through one’s peripheral vision, or what affect plaintiff wearing bifocals had upon her peripheral vision. Questions in this area were outside his area of expertise, and, therefore, were properly excluded.

Addressing the second issue, this court finds that the trial court did not err in refusing to instruct the jury on strict liability. La.C.C.P. art. 1793 states in part:

“A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

Our review of the record indicates that counsel for plaintiff did not object to the trial court’s failure to instruct the jury on strict liability. Thus, we decline consideration of whether such an instruction would be proper under the facts of this case. See, Bechtel, supra at page 1302; Watts v. Aetna Casualty & Surety Co., 309 So.2d 402, 405 (La.App. 2d Cir.1975).

For the reasons assigned above, we affirm the judgment of the trial court.

AFFIRMED.

      . On proffer, plaintiffs expert gave his opinion as a response to these questions.


author: GRISBAUM, Judge. KLIEBERT, Judge, SAMUEL, Judge,

text:
    Harold LYONS v. PARISH OF JEFFERSON, General Electric Company and XYZ Company.
    No. 5-116.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 17, 1983.
    Writ Denied April 5,1983.

      T. Peter Breslin, Kenner, for plaintiff-ap-pellee.
    Gerard M. Dillon, New Orleans, for defendants-appellants.
    Before SAMUEL, BOUTALL, KLIE-BERT, CURRAULT and GRISBAUM, JJ.
   GRISBAUM, Judge.

Defendant, Parish of Jefferson, susper.-sively appeals from a judgment holding it liable to the plaintiff, Harold Lyons, for damages of $25,000 for injuries sustained by Lyons when an electrical panel box located in an office building owned by the Parish exploded burning plaintiff. Defendant contends the trial court erred in finding the Parish had custody of the panel box at the time of the accident and finding that the panel box was inherently unsafe or defective and also in failing to find the accident occurred due to victim fault or fault of a third person. We affirm.

This case presents questions of whether the Parish is liable for the injuries sustained by plaintiff under La.C.C. art. 2322 and La.C.C. art. 2317.

FACTS

On November 17,1976 while plaintiff was working for A.G. Siegel Electrical Contractors at an office building owned by the Parish of Jefferson, an electrical panel box installed by an unknown company and manufactured by General Electric Company exploded resulting in injuries to the plaintiff. The Parish had acquired this multi-story office building in May 1975. It contracted with R.A. McGuire Construction Corporation to alter and/or construct offices in the interior of the building in accordance with the Parish’s architect’s plans and specifications. This general contractor subcontracted the electrical work to A.G. Siegel Electrical Contractors, plaintiff’s employer.

The building had four floors with the first three floors occupied and part of the fourth also occupied. At the time of the accident plaintiff was working on the fourth floor where a new office was being constructed by adding new walls. Additional outlets were being installed as well as lights removed or added. Plaintiff had worked approximately four or five months on the fourth floor with this particular electrical panel board which had previously been installed by another firm. He was the only electrician who had worked on the electrical panel board for some three or four weeks prior to the accident.

This particular board was a three phase panel containing three bus bars; one located on the left side, one on the right side, and one in the center. The bus bars were energized by electrical wires connected to the bottom of the bus bars through the bottom of the panel box. Circuit breakers for individual circuits were installed in the panel box as needed. When plaintiff first began work on the panel, the top half portion of the panel had circuit breakers. Plaintiff testified that he installed one circuit breaker in the middle right half of the panel box. The panel box was mounted on a wall with the top of the box reaching a point approximately six feet from the floor. The top of the panel box was “energized” at the time of the accident. Plaintiff as well as his employer, A.G. Siegel, testified that it was not unusual to not de-energize a panel while stuffing wires on the outside. Moreover, Siegel testified he had previously asked permission to turn off the power, but the Parish responded that the power had to be on at all times.

On the day of the accident, plaintiff testified he was working above and to the left of the electrical panel box approximately six inches from the box on level with the top of the panel tucking wires in order that the panel cover would close. He testified that he was not working inside the box. Plaintiff testified there were approximately three wires with the ends probably stripped of insulation which were not as yet attached to the terminals on the circuit breakers. According to plaintiff, these wires were hanging down below the box when the accident occurred.

Plaintiffs expert, Mr. Robert Drake, a professor of electrical engineering at Tulane University with a PhD in electrical engineering, testified that the accident was the result of a probable three-phase fault in the upper end of the bus bars; i.e., a three-phase short circuit across the upper end of the bus bars which indicated that there was a short from the center bus bar to each of the other two. He also observed a small degree of burning on the bus bar at the lower end of the panel. He noted that there was an indication of arcing between the left bus bar and the center bus bar. He concluded from the above observations that cause of the accident was that the circuit breakers had been misapplied. He explained that this meant that the circuit breakers were incapable of interrupting a short circuit surge of current. The circuit breaker attempts to interrupt the current but must be applied in a location where the power system capacity is less than the interrupt capacity. Therefore, if the current flow is significantly greater than the capacity of the breaker to interrupt the current flow then there is a possibility of breaker failure. In his opinion there was a breaker failure causing the explosion which injured plaintiff. He further stated “[i]t is not unusual to find a short circuit current well in excess of the capabilities of the breaker.” He did not know the capacity of the breakers which failed because they were destroyed by the explosion; however, the remaining unaffected circuit breakers had a capacity of 14,000 amperes. Although possible, he considered it highly improbable that the short circuit was caused by Lyons’ moving of wires in the panel box because the bus bars were insulated and due to the close space between the bars making it quite difficult to get a wire in a position to cause a short circuit. Defendants introduced no expert testimony as to the cause of the accident nor did they have any other witnesses testify.

LIABILITY OF THE PARISH OF JEFFERSON

This case presents questions of the applicability of La.C.C. arts. 2322 and 2317. La.C.C. art. 2322 states:

“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

This article makes the owner of a building answerable in damages to any person who is injured — while rightfully inside or outside the building — in an accident caused by the owner’s neglect to repair the building or from a vice (defect) in its original construction. Fonseca v. Marlin Marine Corp., 410 So.2d 674, 679 (La.1981); Olsen v. Shell Oil Co., 365 So.2d 1285, 1288 (La.1978). The plaintiff must prove that his injury was caused by the “ruin of a building owned by the defendant, and that the ruin was attributable to a vice in the building’s original construction or to a failure to repair it.” Fonseca, supra. “Ruin” has been construed to permit recovery for injuries caused by defects in parts or appurtenances to structures. Olsen, 365 So.2d 1285, 1929-93; See, Fonseca, supra.

La.C.C. art. 2317 provides:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody -”

The plaintiff must prove under art. 2317 that he was injured by a defective thing which was in the care or custody of the defendant. Kent v. Gulf States Utility Co., 418 So.2d 493, 497 (La.1982); Fonseca, supra; Jones v. City of Baton Rouge, 388 So.2d 737, 739 (La.1980); Loescher v. Parr, 324 So.2d 441, 446-47 (La.1975). Moreover, Jones indicated that municipalities and other public bodies are liable for damages caused by things in their custody under C.C. art. 2317. Jones, 388 So.2d 737, 740.

Under both articles 2322 and 2317 liability is based on the status — ownership or custody — rather than on personal fault. The owner or custodian cannot escape liability by claiming that he was ignorant of the defect or that the defect was difficult to discover. He is absolved of liability only if he can prove that the harm was caused by the fault of the victim, the fault of the third person, or by irresistable force. Fonseca, supra; Olsen, supra; Loescher, supra.

We find that the plaintiff has satisfied the elements of both articles 2322 and 2317. Under art. 2322, it is undisputed that the Parish of Jefferson is the owner of this building. While defendant contends that the building in question is. “under construction”, and, therefore, art. 2322 would not apply under Temple v. General Insurance Co. of America, 306 So.2d 915, 917 (La.App. 1st Cir.1974), we do not agree with this contention. The structure was a fully-occupied building with a portion of a floor being specially fitted for certain offices. The Parish is liable to plaintiff in its capacity as “custodian” of the electrical panel box under art. 2317. Fonseca recognized that in most cases the custodian is the owner of the thing because he is the person who has actual control or responsibility for the thing. Fonseca, 410 So.2d 674, 679. Referring to art. 2317, Washington v. T. Smith & Son, 68 So.2d 337, 346 (La.App.Orl.1953) states “[t]he article means by things in one’s custody such things over which that person maintains supervision and control ...” (Emphasis added.) See, Smith v. Chemical Const. Corp., 215 So.2d 530, 531 (La.App. 1st Cir.1968); Wilcox v. American Oil Co., 215 So.2d 402, 403-4 (La.App. 2d Cir.1968). The Parish maintains supervision and control of the electrical panel box as evidenced by its refusal to allow the electricity to be cut off while plaintiff was working on the box thereby enhancing the risk of harm. We also find that the exploding electrical box is analagous to the exploding water heater in Olsen and therefore constitutes “ruin” of a building for purposes of art. 2322 liability.

Concerning the element of causation, we find that plaintiff has satisfied his burden of proving a “vice” in the electrical panel box under both arts. 2322 and 2317. Judgment in law suits is not based on scientific certainty but rather it is based on a preponderance of the evidence. Houston-New Orleans, Inc. v. Page Engineering Co., 353 F.Supp. 890, 894 (E.D.La.1972). In explaining the plaintiffs burden of proving causation by a preponderance of the evidence, the Supreme Court in Townsend v. State Department of Highways stated:

“It is only necessary that the evidence show that it is more probable than not that the harm was caused by the tortious conduct of the defendant .... This burden of proof may be satisfied by direct or circumstantial evidence .... It suffices if the circumstantial evidence excludes other reasonable hypotheses only with a fair amount of certainty so that it is more probable than not that the harm was caused by the tortious conduct of the defendant .... ” (Citations omitted and emphasis added.) Townsend, 322 So.2d 139, 141-42 (La.1975).

While, as Broussard v. Penn. Millers Mut. Ins. Co., 406 So.2d 574, 576 (La.1981) noted, a defect may not be presumed by the mere occurrence of an accident, there are cases where a defect is the only reasonable explanation for the occurrence of the injury or where there is evidence offered that tends to make improbable some other cause. Moreover, proof of a specific defect which caused the accident is not required. See, Hunt v. Ford Motor Co., 341 So.2d 614, 618 (La.App. 2d Cir.1977); Madden v. Louisiana Power & Light Co., 334 So.2d 249, 253 (La.App. 4th Cir.1976); Franks v. National Dairy Products Corp., 414 F.2d 682, 687 (5th Cir.1969); Houston-New Orleans, Inc., 353 F.Supp. 890, 894-95. In the present case where an explosion has destroyed important evidence which might indicate the precise nature of the occurrence, inferences of defectiveness are permissible but not compelling. See, Franks v. National Dairy Products Corp., 414 F.2d 682, 685; Houston-New Orleans, Inc., 353 F.Supp. 890, 895. The finder of fact may choose to draw them or refuse to draw them depending on the evaluation and weight accorded to competing and sometimes conflicting circumstances. Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 640 (8th Cir.1972).

In this case, the trial court chose to accept the findings of the plaintiffs expert who concluded that the explosion was the result of circuit breakers being misapplied. Plaintiffs fault was eliminated by plaintiffs testimony that he installed one circuit breaker but not in the section of the panel that exploded and that he was not working inside the box. Moreover, plaintiffs expert negated the probability that somehow plaintiff had touched with the wire some part in the interior of the electrical panel box causing the explosion. Defendant presented no evidence of other possible causes by expert testimony or otherwise. We find that plaintiff has carried his burden of proving by a preponderance of the evidence that there was a defect in the electrical panel box which caused the explosion. The defendant, on the other hand, has not come forth with evidence showing that the explosion was caused by victim fault, fault of a third person, or irresistable force. Fonseca, 410 So.2d 674, 679; Olsen, 365 So.2d 1285, 1293-94. Finding plaintiff to be a credible and convincing witness, the trial court held that the accident was not caused by plaintiffs actions but was the result of the equipment being inherently unsafe. From our analysis of the evidence adduced at trial, we cannot find that the trial judge was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978).

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

AFFIRMED.

SAMUEL and KLIEBERT, JJ., dissent.

KLIEBERT, Judge,

dissenting.

For the plaintiff to recover, he must prove by a preponderance of the evidence that (1) the Parish had custody of the panel box, (2) the panel box contained a vice or defect, and (3) the vice or defect was the cause of the plaintiffs injury.

The majority opinion concluded the parish maintained supervision and control of the electrical panel box and was evidenced by its refusal to allow the electricity to be cut off while the plaintiff was working on the box. In my opinion, the record does not support that conclusion.

The absolute physical control of the panel box was held by the plaintiff and his employer. Prior to the accident, the plaintiffs employer had installed circuit breakers in the box, at least one of which had been installed by the plaintiff. For three weeks prior to the accident, plaintiff was the only electrician who worked on the box. He had left the cover off of the box but had the key to the closet in which the panel box was located. When the accident occurred, the plaintiff was actively working on the box with the intention of installing another circuit breaker. In my view, “custody” within the meaning of La.C.C. Article 2317 was in the plaintiff and his employer rather than in the Parish.

The plaintiff sought to prove the panel box had a vice and that the vice caused the plaintiffs injury through the expert testimony of Dr. Robert Drake. As we understand Dr. Drake’s testimony, he was of the opinion that when a short circuit occurred, a previously installed circuit breaker failed, causing the electrical flashes which burned Lyons. He based his opinion on information he obtained from the power company as to the “short circuit current” and his belief this current was greater than the capacity of the circuit breaker to interrupt the current. However, neither the possible “short circuit current” which he obtained from the power company nor the capacity of the circuit breakers which he believed failed are in the record. Thus, his opinion as to probable cause is unsupported by the facts in the record. The expert’s bare opinion is not sufficient to prove the case by a preponderance of the evidence. Prejean v. Trinity Universal Insurance Company, 210 So.2d 395 (La.App. 3rd Cir.1968). One could speculate just as easily that the short circuit was caused by something the plaintiff did as the expert concluded that once the short circuit occurred there was a failure of the circuit breaker and that was the cause of plaintiff’s injury.

For the reasons above stated, therefore, I dissent from the majority opinion.

SAMUEL, Judge,

dissenting.

I agree with the reasons expressed in the dissenting opinion of Judge Kliebert. In my view neither Civil Code Article 2317 nor Civil Code Article 2322 is applicable here. And it should be emphasized that the opinion of the plaintiff’s expert witness relative to vice or defect is not valid because it is based on facts not substantiated by the record.

In practically all cases the majority’s reasons and conclusion would require a holding of liability on the part of any individual home owner who calls in an electrician to repair an electrical unit in his residence when there is an explosion or malfunction in the unit being worked on and the electrician is injured. Strict liability or its equivalent should be confined to circumstances clearly within the contemplation of the two codal articles.

Accordingly, I respectfully dissent.

      . The trial judge maintained an objection to the hearsay when Dr. Drake attempted to testify as to the short circuit current.

      . The majority opinion takes the position this was not obtainable because the circuit breakers were destroyed in the accident. However, we note that the particular circuit breakers which were installed could have been determined from the previous contractor who had installed them.