author: LOTTINGER, Judge.

text:
    Chester D. WELLS v. CITY OF BATON ROUGE.
    No. 15131.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    Writ Denied Feb. 23, 1983.
    Peter T. Dazzio, Baton Rouge, for plaintiff-appellee Chester D. Wells.
    Frank J. Gremillion, Asst. Parish Atty., Baton Rouge, for defendant-appellant City of Baton Rouge.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This is an action styled “Petition for Return of Deposit,” but in truth and in fact it is an action ex contractu. The action involves a contract executed in 1946 between the City of Baton Rouge and Belfair Homes, Inc. Plaintiff, Chester D. Wells, purchased the contractual rights of Belfair Homes, Inc., at a sheriff’s sale in 1954 and sued to enforce the contract. From judgment of the trial court in favor of plaintiff, defendant has appealed.

FACTS

The following facts were stipulated at trial:

“1.
“In October of 1947, Belfair Homes, Inc., deposited a total of $79,419.31 with the City of Baton Rouge as the net amount needed to pay for the costs of constructing a sanitary sewer system by the City of Baton Rouge in Belfair Homes Subdivision. Subsequently, the City of Baton Rouge supervised and had this sewer system constructed as part of the whole sewer system in the City of Baton Rouge.
“2.
“The deposits were made in compliance with the terms and conditions of a contract dated December 5, 1946, a copy of which is attached to the original petition and marked P-1 for identification, and which is made a part of this stipulation by reference.
“3.
“The City of Baton Rouge subsequently caused plans and specifications to be prepared, advertised for the construction, and let the contract for the completion of the system. The actual cost of completion of the system after it was accepted by the City of Baton Rouge was $79,419.31.
“4.
“After having utilized the funds for the extension of its sewerage system, the City of Baton Rouge, acting through its Commission Counsel [sic], on November 10, 1948, acknowledged receipt of the funds and agreed to refund them to Belfair Homes, Inc., as evidenced by the Ordinance dated the same day, the entire ordinance being quoted in paragraph 5 of plaintiff’s original petition and which is made part of this stipulation by reference. This ordinance specifically obligated the City of Baton Rouge to refund the sum of $79,419.31 to Belfair Homes, Inc., whenever any sewer bond funds are available to repay them. A photocopy of the ordinance is attached and its authenticity stipulated to by the parties.
“5.
“The development of Belfair Homes Subdivision and construction of the sewer system in that subdivision helped the City of Baton Rouge meet a serious housing shortage which existed at the time, and resulted in a ‘substantial increase’ in property tax assessments being added to the City’s tax rolls.
“6.
“The sewerage system constructed in Bel-fair Homes Subdivision has been used by the City of Baton Rouge as a part of the entire sewerage system of the City continuously since the completion of the subdivision and the sewerage collection system.
“7.
“On November 23, 1948, an election was held in City of Baton Rouge which submitted to the- qualified property tax payers the question of issuing $250,000.00 in sanitary sewer bonds of the City of Baton Rouge, which election had been called by virtue of a resolution of the Commission Council dated November 19,1948. A photocopy of the resolution is attached and its authenticity stipulated to by the parties.
“8.
“One of the purposes of the proposed bond issue was to refund certain subdivid-ers, including Belfair Homes, Inc., for the installment of sanitary sewerage in certain subdivisions within the City of Baton Rouge, and the election called for November 23,1948, was duly held and the proposition submitted failed to carry.
“9.
“By ordinance adopted by the Parish Council in 1959, the Greater Baton Rouge Consolidated Sewerage District was created as successor to the City of Baton Rouge with respect to the sewerage facilities within the boundary comprising the consolidated sewerage facilities including specifically Belfair Homes Subdivision, and the Parish Council was made the governing authority thereof, all as indicated by a copy of Resolution Number 3131, a copy of which is attached hereto and made a part hereof. A certified copy of the ordinance is attached and its authenticity stipulated.
“10.
“At the same time as the Consolidated Sewer District was created, the Parish Council authorized, and the people subsequently ratified by special election, the issuance of revenue bonds by the said District for the purpose of constueting [sic] sewers and sewerage works within the City of Baton Rouge and the Greater Baton Rouge Consolidated Sewer District, all as is evidenced by the certified copy of resolution number 3137, 3138, and 3190, which are attached hereto and made a part hereof.
“11.
“The Greater Baton Rouge Consolidated Sewer District Debt Service Fund has the authority to levy taxes for payment of bonds and interest.
12.
“As of March 31,1975, the Greater Baton Rouge Consolidated Sewer District Fund contained an unappropriated balance of funds in the amount of $51,899.52; the 1965 Capital Improvements Program Fund contained a balance in excess of $3,000,000.
“13.
“Chester D. Wells, acquired the aforesaid $79,419.31 claim by Sheriffs Sale, dated May 7, 1954, under and by virtue of a writ of fieri facias issued out of the 19th Judicial District Court in a suit entitled, ‘American Motorists Insurance Company vs. Belfair Homes, Inc., et al.’ ” (Attachments in paragraphs 7, 9, and 10 omitted.)

TRIAL COURT

In 1968, Mr. Wells filed the instant suit which is identical to an earlier suit filed and abandoned in 1955. In the instant suit, the City of Baton Rouge filed several peremptory exceptions, all of which were overruled by the trial court. Later, a Motion for Summary Judgment filed by Wells was granted by the court. This court, in an unpublished opinion, reversed and remanded the matter for trial. The trial court, after trial in which most of the evidence was stipulated, signed a judgment in December of 1981 in favor of plaintiff. This appeal followed.

SPECIFICATION OF ERRORS

Defendant-appellant, the City of Baton Rouge, asserts that the trial court erred in ruling:

1. that the contract between the parties did not contain a suspensive condition that reimbursement would be made only from the proceeds of the bond issue authorized for the purpose of that reimbursement,

2. that the City was liable to reimburse plaintiff from funds from any sewer bond issue,

3. that the bond issue of 1959 was available for the reimbursement of plaintiffs, and

4. that the City was liable for reimbursement from bond issues even though no money remained from those particular bond issues.

SPECIFICATIONS OF ERRORS 1 AND 2

Basically, defendant-appellant argues that the language of the original contract between the City and Belfair Homes, Inc. evidences the intent of the parties that reimbursement of the funds advanced by Belfair would occur only if a bond issue was floated for that specific purpose, as was the situation with the unratified 1948 bond issue. Defendant-appellant asserts the trial court erred in finding the understanding of the parties was that reimbursement would be made from any sewer bond funds whenever same were available.

The City argues that the ordinance passed on November 10, 1948, acknowledging the advances made by Belfair, and promising reimbursement “... whenever any sewer bond funds are available for that purpose[,]” should be read within the context of the original contract. Thus, inasmuch as the 1948 bond issue failed to carry, and no other bond issue for the purpose of reimbursing Belfair has ever been proposed, the City contends that the suspensive condition in the contract has not occurred and its obligation of reimbursement has not become exigible. The City further contends that the contracting parties did not contemplate reimbursement from sewer bond issues floated for purposes of new construction, as was the 1959 bond issue.

We need not inquire into the intent of the contracting parties. Paragraph 4 of the joint stipulation entered into at trial reads in part, “this ordinance [i.e., that of November 10, 1948] specifically obligated the City of Baton Rouge to refund the sum of $79,-419.31 to Belfair Homes, Inc., whenever any sewer bond funds are available to repay them.” (emphasis supplied) The parties therefore stipulated the nature of the City’s obligation under the 1948 ordinance acknowledging Belfair’s contractual right of reimbursement, and such stipulation is binding. See Hair v. City of Baton Rouge, 297 So.2d 451, (La.App. 1st Cir.1974) app. den. 300 So.2d 183 (La.1974).

The trial court found that plaintiff was to be reimbursed whenever any sewer bond funds were available. This finding was entirely consistent with the stipulation entered into at trial, and is not erroneous. The question which remains, and which is dispositive of the case sub judice, is whether any sewer bond funds became available to repa.y plaintiff.

SPECIFICATION OF ERROR 3

By this specification, defendant-appellant argues that the trial court erred in finding that funds generated from the 1959 bond issue were available for the reimbursement of plaintiff.

In May of 1959, the Parish Council submitted two propositions to the public on behalf of the Greater Baton Rouge Consolidated Sewer District. The first proposition was for a bond issue of $21 million for constructing sewers and sewerage disposal works. The second proposition involved whether the Consolidated Sewer District would assume certain outstanding debts of those underlying sewer districts which precede the consolidated district. The resolution of the Parish Council placing the second proposition on the ballot indicated that its adoption was contingent upon the passage of the $21 million bond issue.

The trial judge stated in written reasons that the second proposition on the May 19, 1959, ballot provided for the Consolidated Sewer District to assume all outstanding sewer district debts, upon completion of the $21 million bond issue. This interpretation assumed that the second proposition, in accordance with La.R.S. 39:577, provided a new purpose for proceeds of the 1959 bond issue, once construction of sewers and sewerage works was completed. The trial judge further found that the second proposition was an assumption of all underlying indebtedness payable through ad valorem taxes.

The City argues that the second proposition assumes only indebtedness incurred through specific past bond issues by underlying sewer districts.

An examination of the second proposition indicates that the voters ratified a proposal to assume indebtedness incurred through certain bond issues by underlying districts. These past bond issues were specifically enumerated in the second proposition. The indebtedness to plaintiff, which did not arise from the designated past bond issues, was not within the purview of the second proposition. Thus, assuming arguendo the trial judge was correct in his interpretation that the second proposition created a new purpose for the use of the 1959 bond issue, the trial court erred in ruling that proceeds of the 1959 bond issue became available to reimburse plaintiff once construction was completed.

As stated above, the parties stipulated that plaintiff would be reimbursed whenever any sewer bond funds were available, and we rejected the City’s argument that the parties agreed to reimbursement only if a bond issue was floated for that specific purpose. However, even though we find that such a restriction was not part of the City’s stipulated obligation, La.R.S. 39:577 creates almost identical restraints. Even if a bond issue is floated for original purposes other than reimbursing plaintiff, under the statute these proceeds cannot become available to reimburse plaintiff unless and until the public approves using idle proceeds for such a purpose.

It is undisputed that no sewer bond issue for the specific purpose of reimbursing plaintiff was ever passed. The bond proposition of 1959 had as its express purpose “constructing sewers and sewerage disposal works,” which we interpret to mean the construction of new sewers and new sewerage disposal works only, and not the paying for existing sewers. Thus the paying for existing sewers was not within the call of this bond issue. La.R.S. 39:577. Additionally, even assuming arguendo that the second proposition submitted in 1959 created a new purpose of 1959 bond proceeds (as per La.R.S. 39:577), the debt owed to plaintiff was not among the specifically enumerated outstanding debts assumed. Moreover, the record indicates that proceeds from the 1965 bond issue for the Capitol Improvements Program went into a separate City-Parish fund entirely unrelated to the Greater Baton Rouge Consolidated Sewer District Fund. Thus, idle funds from the 1965 bond issue for capital improvements were not “sewer bond funds” available for reimbursing plaintiff. Inasmuch as the record does not indicate that any sewer bond funds have ever become available to reimburse plaintiff, either through a bond issue for that specific purpose, or by the method proscribed in La.R.S. 39:577, we find that plaintiff cannot recover the advances made by Belfair Homes, Inc., since the suspensive condition of the City’s obligation has not yet occurred.

In light of this holding, discussion of defendant-appellant’s specification of error 4 is expressly pretermitted.

Therefore, for the above and foregoing reasons, judgment of the trial court in favor of plaintiff-appellee Chester D. Wells in the sum of $79,419.31 is hereby reversed. There is now judgment in favor of defendant-appellant the City of Baton Rouge, dismissing plaintiff-appellee’s suit at his costs in the trial court and in this court.

REVERSED AND RENDERED.

      . The contract between Belfair Homes, Inc. and the City reads in pertinent part:
      “In regard to sanitary sewers, detailed plans and specifications must be furnished by the Contractor and contract let at public bid by the City of Baton Rouge and the necessary funds therefor shall be furnished the City of Baton Rouge in advance of letting said contract, which amount the City will reimburse the Contractor without interest if, as and when a bond

        issue is floated for the purpose of paying for the sanitary sewers." (emphasis supplied)

      . The ordinance adopted reads as follows:
      BE IT ORDAINED by the Commission Council of the City of Baton Rouge, Louisiana, that WHEREAS, the property owners of Belfort and Belfair Subdivisions did petition the Commission Council to construct a sewer system on streets in said subdivisions, said sewerage system to be a part of the whole system of the City of Baton Rouge, and the City having no available funds at this time to pay the costs thereof, and
      WHEREAS, the property owners, namely, the Northside Realty Company and the Belfair Homes, Inc. & American Motorists Insurance Company, advanced to the City of Baton Rouge the amounts needed to pay the costs of said sewer extension upon the condition that the City of Baton Rouge reimburse them for same whenever any sewer bond funds are available for that purpose, and
      WHEREÁS, in accordance therewith, the City of Baton Rouge caused the plans and specifications for said work to be prepared, did advertise for said construction and did let the contract, which contract was completed and accepted by the City of Baton Rouge, the cost of same having been advanced by the following persons in the following amounts, to-wit:
      NORTHSIDE REALTY COMPANY $4,040.38
      BELFAIR HOMES, INC., and
      AMERICAN MOTORISTS INS. CO. $79,419.31
      NOW, THEREFORE, BE IT ORDAINED by the Commission Council of the City of Baton Rouge, Louisiana, that the said City does hereby acknowledge the advance made to it by the above listed property owners in the amounts above set forth making a total sum of $83,-459.69 for the purpose of constructing said sewers for the City of Baton Rouge in Belfort and Belfair Subdivisions, and the City of Baton Rouge does hereby agree to pay and refund the above amounts, without interest, to the said parties listed above in the amounts listed opposite their respective names, whenever any sewer bond funds are available for that purpose. Thus adopted this 10th day of November, 1948.

      . In the 1959 election, two propositions were submitted to the public. The first read as follows:
      “Shall Greater Baton Rouge Consolidated Sewer District incur debt and issue bonds to the amount of 21 million to run thirty years from date thereof, with interest at the maximum rate of 5% per annum, for the purpose of constructing sewers and sewerage disposal works in and for said district, title to which shall be in the public, such bonds to be sold only at such time or times and in such amounts as the Parish Council may determine advisable to effect the contemplated construction program?”
      The second proposition read in pertinent part as follows:
      “Shall Greater Baton Rouge Consolidated Sewerage District assume the outstanding debt of the following underlying sewerage districts: “All outstanding sewer bonds of that district known as the old City of Baton Rouge as it existed prior to January 1, 1949, being the bonds remaining outstanding of an original issue of bonds dated December 1, 1930:
      “All outstanding bonds of Sewer District # 1...”
      (The remainder of the second proposition contained a listing of the original sewer districts, 1-9, and posed the question whether or not the City should assume the outstanding debts of bonds issued by each of those particular districts during the years ranging from 1930 through 1948.)

      . See footnote 1, infra.

      . See footnote 2, infra.

      . La.R.S. 39:577 reads as follows:
      “The proceeds of the sale of bonds issued under the provisions of this Sub-part shall constitute a trust fund to be used exclusively for the purpose or purposes for which the bonds are authorized to be issued, but the purchaser of the bonds shall not be obliged to see to the application thereof. In the event that all or part of the proceeds of the sale of such bonds are no longer needed for the purpose for which the bonds were authorized to be issued, the governing authority of the subdivision which has issued such bonds may use the proceeds of the sale of such bonds for a purpose different from that for which the bonds were originally issued, provided that such new purpose is one for which the bonds could have been issued in the original instance and provided further that such proposed action shall have been approved by a majority in number and amount of the qualified property taxpayers voting at an election held in the manner provided by the provisions of this Chapter for authorizing bonds. In the event any governing authority has, prior to May 1, 1950, taken action substantially like that herein provided in order to obtain authorization to use the proceeds of the sale of bonds for a purpose different from that for which the bonds were originally issued, such action is hereby approved, validated and ratified.”


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    Woodrow CHABERT v. CITY OF WESTWEGO POLICE PENSION AND RELIEF BOARD.
    No. 5-71.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Jan. 17, 1983.
    Gerald T. Laborde, Gretna, for plaintiff-appellant.
    Lazard Levy, Marrero, for defendant-ap-pellee.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   KLIEBERT, Judge.

Woodrow Chabert, plaintiff, (claimant) appeals from a judgment of the District Court upholding a denial of his claim for disability benefits against the Board of Trustees for the Police Pension and Relief Fund for the City of Westwego (Board). The issue presented on appeal is whether the disability complained of by the claimant at the time of trial was the result of an injury sustained while in the performance of his duties as a police officer and was he in fact disabled at the time of trial. The trial judge concluded the Board was in error in holding that the claimant was not injured while in the performance of his duties as a police officer, but held the Board was correct in concluding there was no connection between that injury and the claimant’s present condition. We agree with the trial judge and, therefore, affirm his decision.

The claimant was a policeman and former member of the Board. On February 24, 1974, following the conclusion of the Poseidon Parade in Westwego, the police chief and his men, including the claimant, were in the process of clearing the streets of people to permit the flow of vehicular traffic on the street. Parked on the side of the street was a flat bed truck and a “low boy” trailer which had been supplied by Mr. James Tassin, an alderman for the City of Westwego. Mr. Tassin approached the police chief, and according to Mr. Tassin, “to try and find out from the chief what was going on”. Exactly what occurred thereafter depends on which witness’ version of the incident is accepted. All, however, agree the claimant was in the process of arresting Mr. Tassin when an altercation occurred and it took several police officers to make the arrest. The claimant contends that during the scuffle he was thrown against the truck and injured when his back struck the tandem wheels of the flat bed truck. Later that night, he was taken to West Jefferson General Hospital where he was examined by Dr. William Bagnetto, who was in family practice and formerly the police department’s physician. Dr. Bag-netto found tenderness in the lower lumbar spine area and was of the opinion the claimant had sustained a contusion of the lower back. Hence, he referred the claimant to Dr. Joseph Frensilli, an orthopedist, for treatment. On the day following the incident, x-rays of the back were taken, found negative, and the claimant was discharged by Dr. Frensilli on March 9, 1974. Since that time, Mr. Chabert has been examined and treated by numerous physicians and has undergone exploratory surgery, a spinal fusion operation, been placed in traction, and has received extensive therapy.

On June 4, 1974, Mr. Chabert filed in District Court a “Writ of Mandamus to Compel Performance of Administrative Duty”, i.e., a determination of whether he was entitled to a disability pension under LSA-R.S. 33:2234(A), which provides:

“A. The board shall retire from service in the police department any member of the department found by a majority vote of the board to have become physically or mentally, permanently or temporarily, disabled while in the performance of his duties, as determined by the report of the department physician, and shall place the retired member on the pension or relief roll.”

The Board first discussed the claim on June 16, 1975, at which time the claimant was a member of the Board. It did not grant Chabert’s request for disability benefits because the evidence was not conclusive as to his disability. It recommended he be examined by Dr. Irvin Cahen, a physician selected by the Board to determine whether, as required by LSA-R.S. 33:2234(A), Chabert was disabled. The Board held a hearing to take evidence. There was considerable testimony as to how and why the altercation between the claimant and Mr. Tassin occurred. From this evidence, it is apparent there had been some previous disagreement between them, the extent thereof depending upon whose version is accepted. On November 5,1980, the Board denied Mr. Chabert’s claim for the following reasons:

1). The Board refused to accept Mr. Chabert’s version of the arrest or the manner in which he said the injury occurred.
2). The Board expressed grave doubts as to whether the claimant’s action in arresting Mr. Tassin was “while in the performance of his duties” as a police officer.
3). That Mr. Chabert was not disabled, and if he was disabled, then that disability was not due to the occurrences which took place on February 24, 1974.

Mr. Chabert sought judicial review in the District Court of Jefferson Parish based upon the provisions of LSA-R.S. 49:964. The trial judge held the Board erred in failing to find Chabert was in fact injured and that the injury occurred while Chabert was performing his duties as a police officer. He concluded, however, that the Board was correct in finding lack of disability as that term is defined in LSA-R.S. 33:2234(A) and a lack of connexity between the disability, if any, which now exists and the injury which occurred while Chabert was performing his duty as a police officer.

Dr. Lubin, a psychologist, and Dr. Irvin Cahen were the doctors selected by the Board as the Department’s physicians to make the disability evaluation required under LSA-R.S. 33:2234(A). The claimant refused to go to Dr. Lubin because he said “it was his back which was hurting, not his head”. He did go to Dr. Cahen. In his report of July 30, 1975, Dr. Cahen gave the following as the claimant’s medical history:

“This patient has indicated the development of backache as a result of injuries sustained while on duty for the police units of the City of Westwego. On the date noted above in an encounter with a male, for purposes of arrest, the patient was thrown against a trailer body impacting the elbow and vertebral zone. The patient states that the force of the impaction was primarily across the back as his body hit the wheel of the vehicle. He was not rendered unconscious by the accident and initially did not experience acute pain. Later, however, he became aware of progressive pain across the back extending into the pelvic zone and was aware of stiffness of musculature. Later on, when he attempted to get up from a seated position, he stated that his legs gave out beneath him and he fell down. Accordingly, medical attention was requested and he was referred to the West Jefferson Hospital where he was admitted for treatment. This therapy included bedrest and traction for approximately two weeks. X-ray studies were taken of the vertebral zone and he was advised that there were no fractures. The patient was later fitted with a corset support and permitted to return to his home where he continued at bedrest.
Secondary involvement developed with difficulty in urination which the patient appeared to be more prevalent at night, and he was referred to the Ochsner Foundation Hospital for additional evaluation by a neurologist. Myelogram studies were completed and apparently reported as not presenting findings of disc protrusion. He was advised by his physician that the lack of urinary control was probably due to his medication.
After being discharged from the Foundation Hospital the patient received various forms of physical therapy for several months. He claimed however that backache persisted and no definite improvement occurred.
The patient again changed physicians and was seen in consultation by another orthopedist who referred him to Touro Infirmary Hospital. At that Institution additional studies of myelography and discography were completed, but the findings were not definite according to the statement given to the individual.
The patient states that he remains under the care of these physicians who have advised that if he does not improve with continued routine treatment, he would probably' have to be re-admitted to the hospital for exploratory vertebral surgery next month.
The patient is at present complaining of pain across the back which is increased after standing and walking. It is also present at night even though he is at bedrest. He says that he is unable to sleep and is becoming very apprehensive about his future. He has been seen by other consultants who have not offered additional treatment.
The patient states that he was treated by epidural block at one time in February of 1975 but this did not offer specific relief. He is having more pains in the left side than the right and has recently experienced intermittent numbness of both feet. He says that this reaction seems to come and go.
The patient has not been able to return to work for the present time because of his abnormalities as described and has more or less remained at home.
The patient indicates that treatment has also utilized corset support which did not relieve the backache. He was also placed in a plaster cast for awhile but this immobilization did not relief back pain. He has lost approximately seventeen pounds over the past few months.”

From his medical examination, Dr. Cahen made the following observations:

“With the patient disrobed and in standing in the upright position, inspection of the vertebral zone reveals no disalignment. There is no scoliosis. Palpation of the paravertebral musculature does not indicate spasm. Trendelenburg tests are negative to instability at this time. In forward bending, the lordotic curvature gradually reverses. The patient is aware of tightness in the left ilio-lumbar zone with this effort.
Right and left lateral deviation presents symmetrical mobility. In flexion and extension, the patient refers to backache at the lumbosacral level as well.
The supine attitude is assumed without difficulty. Straight leg raising permits elevation through an arc of seventy degrees. Hamstring muscle tightening is noted. There is no sciatic pain referral with these manipulations. Kernig tests are confirmatory. Crossleg tests are negative for acute iliolumbar involvement. In the prone position, Ely tests are negative for lumbosacral pain. There is no tenderness upon pressure over the sciatic notch and the course of the sciatic nerve. Palpation over the lumbar area in prone position elicits a complaint of backache. There is no reference of sciatic pain however.
Measurement of the lower extremities note equal length. There is no atrophy of the thigh or calf musculature. General mobilities of the hip, knee and ankle articulations are complete. There is no peripheral edema or tarsal induration.
The patient is able to ambulate in both the equinus and calcaneal positions. There is no apparent weakness of the extensor musculature of the foot or toes. An incidental finding is an operative scar at the pilonidal area in the sacral zone about two inches in overall length. This is the residual of an operation in 1960 for a pilonidal cyst while he was in the Armed Forces.
Reflex responses of the lower extremities are active and symmetrical. No abnormal reflexes are noted. There is no abnormal reaction to sensory integumental stimulation.
X — RAYS: Multiple views of the vertebral zone reveals no disalignment. Vertebral bodies are generally uniform in height, width and density. However, superior margins of the first lumbar segment and the adjacent inferior margin of the 12th dorsal segment are irregular in outlines suggesting residual change of prior epiphyseal variation. The findings do not have the appearance of recent osseous trauma but there is narrowing of intervertebral space in contrast to the remaining lumbar segment.
There is no wedge compression deformity although the anterior body height of the first lumbar segment is slightly more narrow than the other zone. There is no indication of specific fracture or dislocation. In oblique projection there is no spondylolysis. There is no spondylolisthe-sis and the sacro-iliac synchondrosis are patent. Densities in the soft tissue adjacent to the vertebral margins suggest calcification possibly within the larger vessels notwithstanding this patient’s age group. In oblique projection, osteophytic spurring is noted in the superior margins of the first lumbar segment.”

Based on these observations, the doctor reached the following conclusion:

“The clinical history has indicated injury to the vertebral zone as the result of an accident on February 24, 1974. The mechanism of this trauma may be associated with the patient’s complaints of pain initially involving the vertebral zone and the examiner would correlate a diagnosis of contusion with assumed muscle spasm. However, the patient’s complaint pattern has persisted over a period of many months notwithstanding prlonged therapy of various modalities. This type of syndrome is unusual and does not correlate physical abnormalities of the muscu-loskeletal system.
The patient has been examined by several specialists and diagnostic aids such as x-ray, mylography and discography has not revealed abnormality of traumatic pathology. The examiner has renewed records of these tests at Touro Infirmary. The myelogram of February 18, 1975 is negative. There is no irregularity of the column at the 12th dorsal — 1st lumbar level to indicate developmental narrowing of the intervertebral disc.
The discogram has been reported as follows:
A needle was inserted into the interspac-es of L3-L4, L4-L5 and L5-S1. Contrast material was injected into the disc of these spaces. There is no evidence of herniation of the disc form any of the interspaces.
The examination of this patient as of July 23, 1975 does not reveal objective abnormalities of the musculoskeletal system as related to trauma. There are no present findings to indicate operative intervention of the lumbar zone.
From the orthopedic standpoint, this examination does not reveal objective abnormalities to account for the patient’s prolonged complain pattern. Accordingly, this examiner does not offer additional specific orthopedic therapy, but would advise that this patient be managed to return to general activity if other neurological consultation is also without objective findings.”

Reports by Drs. Bagnetto, Frensilli, Connolly, Hamilton, Brent, Redler, Llewellyn and Whitecloud were also submitted in evidence. These reports were all predicated on examinations, observations and treatments made after the alleged injury, and in essence, support the medical history, observations and conclusions drawn by Dr. Cahen which are that the claimant was injured in the altercation, the injury was a contusion and strain of the back and aside from this, there is no indication of an orthopedic or neurological injury to the back. The medical opinions which differ from that given above are those of Dr. Whitecloud and Dr. Philibert. Dr. Whitecloud’s report differs because he performed a surgical exploration and subsequently a bone fusion of the lower lumbar to stop the pain caused by a degenerative disc disease. None of these doctors have a medical explanation for the claimant’s continued complaints. Dr. Philibert’s report is entirely different from the others because he assigns medical reasons for the continued complaints of pain. He was in family practice and an abdominal surgeon who operated a pain clinic. His report of January 7, 1977 provided as follows:

“On September 24, 1976 I saw Mr. Cha-bert who stated that he sustained a back injury while working as a deputy sheriff on February 24, 1974. He described numerous doctors and treatments and admissions to hospitals and stated that in-spite of everything that had been done for him in the past that he was still having severe pains in his back. Complete examination at this initial visit revealed point pain to palpation examination to L2-3-4-5, SI of the lumbosacral spine, both sides of his sacroiliac and his sciatic nerves in general. Mr. Chabert was examined, marked, re-examined and the examination was done on three different occasions during the same visit and each time the examination was done it confirmed the findings of the other two previous examinations that certainly he had objective evidence of pain; was not malingering; and definitely had bonified objective evidence of injury of the spine. Mr. Chabert was treated with injection therapy of injecting these trigger areas with a 1% Hydrocortisone Acetate solution in lh% Xylocaine Hydorchloride with satisfactory results. Whereas he could hardly move prior to getting on the table, examination following the treatment revealed an absent of pain following treatment. This progressed very satisfactory and well on Mr. Chabert from September, October and November but inspite of treatment he kept getting recurrences. Mr. Chabert stated that he had been to numerous neurosurgeons and neurologists for the back trouble and the spasms that he was getting but could not really describe the spasms in a particular manner that was evident. The problem develops here that Mr. Chabert had an injury apparently which had some underlying factors that was causing the injury to continuously recur.
Therefore, on November 16, 1976 Mr. Chabert was put in Metairie General Hospital where he was worked up to elemi-nate any central nervous system damage of an intrinsic nature. Fortunately, he was observed during one of his spastic type of seizures and it was concluded by Dr. John Jackson, who happened to walk into the room at the time he was having an extraparamidal seizure due to medication which he had been given at a prior time. With the realization that Mr. Cha-bert was not merely having spasms in the back but in actuality was having a drug induced extraparamidal seizures he was placed immediately with an injection of Cojentin and placed then on Conjentin tablets twice a day and the extraparami-dal seizures and spasms in the back have completely subsided with the onset of this medication. Following this he was again given at periodical intervals injections into the injured areas of his back with the same previously mentioned solution of Xylocaine-Hydroeortisone with very satisfactory results.
Mr. Chabert is finally responding to treatment and is having now longer terms of relief than he had had prior to the diagnosis of the extraparamidal seizures that he was experiencing. In retrospect we can now appreciate the fact that Mr. Chabert’s injuries were being complicated by extraparamidal seizures which were causing such muscle spasms as to actually reinjure the contussion of his lumbosacral region each time he had a seizure. As now can be appreciated, without the seizures complicating the treatment he is getting satisfactory progress in the elieviation of the severe pain he had been experiencing all this time.
At the present time Mr. Chabert is totally and permanently disabled and it is not conceivable in the immediate future that he can return to gainful employment for the near future. It is always hopfully anticipated that a physician will cure his patient and this is the effort that I will extend to Mr. Chabert to best of my ability to treat him in such a manner as to finally cure him of the injuries he sustained. There are many months of treatment ahead of him before final resolution of the injuries he sustained can be a reality. In the mean time, this is to confirm the fact that Mr. Chabert is totally and permanently disabled since the onset of the accident to the present time and for the immediate future he remains totally and permanently disabled. DIAGNOSIS: Severe contussion of lum-bosacral and sacroiliac spine. 2. Drug induced extraparamidal seizures due to either Thioziades or Reserpine type drugs.
DISCUSSION: In a review of Mr. Cha-bert’s medication certainly a Thioziade drug had been used on him previously and this of course is not an unusual situation for these drugs to cause extraparam-idal seizures. Certainly the drug was of need apparently in the early stages of his treatment to elieviate the anxiety and emotional trauma that is associated with back injury. However, in the process of treatment of this continuous use of Thioz-ides cause a perputation of the extrapar-amidal seizures which in turn complicated the initial injury he sustained to began with. It is like the dog chasing his tail. The more the tail is chased the more vicious the cycle becomes and actually never catching quite up with the tail. Extraparamidal seizures are somewhat similar to this insofar as long as medication is given of a nature which will aggraviate the seizures they will continue and actually get worse. The one factor which must be considered is the possible irreversible damage that can sometime be caused by the use of extraparamidal drugs. The irreversable damage of the extraparamidal seizures especially that of tardive dyskinesia must be considered and must be observed for in the future. It is not to be implied here however that Thioziade drugs should not have been used on Mr. Chabert. It is to be emphasized that certainly these drugs and quite often are of great value in relieving patients with back injuries insofar as they increase the tolerance for pain and also at times are of a benificial nature to the neuralgia reaction that occurs associated with back pain. The problem as has already been mentioned is that the medication caused extraparamidal seizures and should have been stopped on a prior date but the complication of such a diagnosis is that to appreciate the spasms as described by a patient and to conceive the fact that these spasms are actually of a extraparamidal seizure are very difficult to be diagnosed insofar as the description of the patient does not always coincide with the physicians appreciation of an extraparamidal seizure. The diagnosis can quite often be very difficult to make and is most often made when a physician sees the patient in such a seizure. Again the problem exist that most of the time the seizures are often gone by the time a physician gets to the patient to try to observe what he is experiencing. Nonetheless the diagnosis was made, the ex-traparamidal seizures have been corrected and the therapy he is now receiving is of a very beneficial nature insofar as the persistent and constant pain of which he was experiencing is gradually subsiding.”

The standard for appellant review set out by our Supreme Court in Canter v. Koehring, 283 So.2d 716 (La.1973) is as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Even though the standard of “ordinary error” as opposed to “manifest error” may be the applicable standard of review because the medical evidence was submitted by depositions or reports in lieu of live witnesses, we cannot say the trial judge erred in accepting the medical report of Dr. Cahen as supported by the other doctors over that of Dr. Philibert. There is a total lack of connexity between the injury which occurred on February 24, 1974 and the condition in which Dr. Philibert found the claimant at the time of his examination.

Accordingly, the judgment of the trial court is affirmed. All costs of the appeal to be borne by the appellant.

AFFIRMED.


text:
    A. Mason BARNES, III v. SOUTHERN INVESTORS PROPERTY MANAGEMENT, INC.
    No. 5-127.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Jan. 17, 1983.

      Santo A. Dileo, New Orleans, for plaintiff-appellant.
    P. Michael Cullen, Edwards, Cullen & Loeb, Gretna, for defendant-appellee.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   KLIEBERT, Judge.

A. Mason Barnes, III, plaintiff, appeals the judgment of the trial court dismissing his suit for specific performance of an exchange of immovables but awarding to him the sum of Six Thousand Dollars for fill placed on the lot sought to be exchanged as an unjust enrichment. We affirm the trial judge.

On December 17, 1979, Barnes and the defendant, Southern Investors Property Management, Inc. (hereafter Southern), entered into a purchase agreement for the exchange of immovable property. Barnes was to exchange Lots 32, 33, 34, 35, 36 and 37 of Square 92, Kenner Subdivision, Ken-ner, Louisiana, plus Twenty-nine Thousand Dollars in cash for Southern’s immovable property consisting of Lots 9, 10, 11,14, 15, 16,17,18,19, 20, 21, 22 and 23 of Square 91, also in Kenner Subdivision.

According to the agreement, the act to effectuate the exchange was to be executed prior to March 15, 1980. Barnes contends the parties agreed to extend the time for execution of the Act of Exchange to May 1, 1980. To this end, Barnes sent a signed written extension of time to Southern’s representative for his signature. Southern contends there was never an agreed upon extension and accordingly refused to sign the extension agreement.

Based upon the exchange agreement, Barnes had landfill at a cost of $6,000.00 placed on the property he anticipated receiving in the exchange. Both parties at trial admitted no specific authorization was given to Barnes to put the fill on the lot, but Southern was aware of this action and never protested.

The trial judge concluded that the extension of time, as proposed by Barnes, was not agreed to by Southern and not reduced to writing and, accordingly, dismissed plaintiff’s suit for specific performance. He additionally concluded Southern was unjustly enriched by Barnes’ act of placing landfill on its property and, therefore, rendered judgment in Barnes’ favor for the cost of the fill, i.e., $6,000.00.

The appellant filed no brief. The appel-lee filed a brief urging an elimination or reduction of the $6,000.00 award. The ap-pellee previously filed a motion to dismiss the appeal because of appellant’s failure to timely file his brief. Under the Uniform Rules of the Court of Appeal and the notices presently being given by the Clerk at the time the record is filed in this Court, the appeal would be declared abandoned and, hence, dismissed. Rule 2-12.12, 2-8.6. However, the rule became effective after the appeal was filed and no notices were given to the parties, therefore, we elected to rule on the merits of the appeal without the benefit of appellant’s brief.

Under La.C.C. Article 2462, specific performance is available under a contract to sell only if it is reduced to writing. Therefore, in the absence of a written agreement to extend the date for extension of the exchange, as a matter of law, Barnes is not entitled to specific performance. Additionally, since there is no appeal of the judgment or answer to the appeal filed by the appellee, we cannot consider his request for reduction or reversal of the cash award. Accordingly, the judgment of the trial court is affirmed. All costs of the appeal to be borne by the appellant.

AFFIRMED.


author: AUGUSTINE, Judge. REDMANN, Chief Judge,

text:
    Myrna BRISCOE and Ruby Morton v. Walter STEWART and Cumis Insurance Society, Inc.
    No. 12898.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Jan. 14, 1983.

      C. Joseph Murray, Murray, Murray, Ellis, Braden & Landry, New Orleans, for plaintiffs-appellees.
    Porteous, Toledano, Hainkel & Johnson, David J. Mitchell, New Orleans, for defendants-appellants.
    Before REDMANN, C.J., AUGUSTINE and LOBRANO, JJ.
   AUGUSTINE, Judge.

On Sunday, August 27, 1978, as Myrna Briscoe and Ruby Morton were driving to church, the automobile in which they were travelling was struck by another vehicle at the intersection of North Prieur and La-harpe Streets. The collision was the result of the negligence of defendant Walter Stewart, who disregarded a stop sign. The impact of the collision sent Ms. Briscoe’s vehicle careening into a house situated at that intersection; it ultimately came to rest against the front steps. Later, plaintiffs Briscoe and Morton filed this suit against Walter Stewart, who was uninsured, and Cumis Insurance Society, Inc., Briscoe’s uninsured motorist carrier. Following trial by jury, Briscoe was awarded damages in the amount of $6,822.00; Ruby Morton received $7,438.00. From this judgment, the defendant Cumis Insurance appeals.

The only issues presented to this court by the appellant are:

1) Whether the jury’s awards to each plaintiff were excessive, and

2) Whether the trial court erred in allowing the jury to view the insurance policy issued by Cumis to Myrna Briscoe.

I

As to Ms. Briscoe’s award, the operable facts are these:

Ms. Briscoe testified that although she was in a state of shock immediately after the accident and did not think she was seriously injured, afterward, she began to experience considerable pain in her neck region. The day after the accident, she visited the offices of Dr. Henry Braden, III, for an examination. Dr. Braden discovered that Ms. Briscoe had suffered a bilateral posterior cervical muscle spasm and noted that her motion was limited in all directions. X-rays revealed a reversal of the normal cervical and thoracic curve and a subluxation of the C-4 and C-5 vertebrae. The doctor treated Ms. Briscoe for a period of three and a half months, during which time she received physical therapy on twenty-nine separate occasions. Ms. Briscoe’s medical bill totalled $735.00. During the period of Ms. Briscoe’s injury, she suffered constant pain which continued even after her discharge from treatment, thus significantly curtailing her activities. She was unable to turn her head in a normal fashion and was required to use a heating pad to alleviate the pain even while at work. Simple tasks such as tying a shoe caused her great discomfort, and she frequently found it necessary to avoid socializing and housework. In addition, Ms. Briscoe was forced to abandon her part-time work as real estate agent.

Ruby Morton’s injuries arose when the impact of the collision flung her against the dashboard, causing bruises to her right shoulder and hip. For a brief period of time after the accident, Ms. Morton was unable to move her right arm without great discomfort. Dr. Braden diagnosed contusions to the skull, the right shoulder and hip, and cervical sprain. X-rays of the cervical spine revealed partial subluxation of the C-3 and C-4 vertebrae. As in the case of Ms. Briscoe, Ms. Morton was required to undergo physical therapy, although for a shorter period of almost two months. Her medical expenses amounted to $625.00. During the period of her treatment, Ms. Morton’s normally active life became substantially restricted, as she was unable to continue her part-time work as a beautician. She was able to maintain her regular secretarial work, but only with the constant assistance of fellow employees. She frequently spent sleepless nights because of the pain in her shoulder and neck, and was forced to forego sexual contact with her husband — they were newlyweds. For a time after the accident, Ms. Morton was unable to perform household chores or drive an automobile due to the inability to rotate her head.

Upon review of a jury’s award of damages, an appellate court is constrained to follow several limiting principles. First, we are reminded that assessment of damages is the province of the trier of fact, whose judgment is allowed great discretion and deference. Moreover, an award of damages cannot be disturbed unless the appellate record clearly reveals that the trier of fact abused its great discretion. If such is the ease, the reviewing court may modify the award, but only to the extent of lowering it to the highest point which is reasonably within the discretion afforded the finder of fact. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979). The appellate court’s modification of the award must be based upon a particularized inquiry as to the injuries suffered by this plaintiff. Reference to similar cases in our jurisprudence is therefore of limited value in determining the appropriateness of an award. Reck, supra. It has been noted by this court that where the injury is the kind that is involved in the present case, any award, but particularly one from a jury, is difficult to evaluate. The plaintiffs’ demeanor, the believability of their experiences, the medical evidence — all play an integral part of each juror’s resolution of quantum. Kostrzewa v. Wilson, 397 So.2d 859 (La.App. 4th Cir. 1981).

In the present case, each plaintiff impressed the jury with her veracity in telling of the accident itself, which would have induced substantial mental suffering in any normal person. The jury apparently believed each plaintiff when she testified that her normal life was significantly altered by pain and immobility of the head. Medical testimony verified their suffering— each plaintiff was found to have partially dislocated vertebrae.

To conclude, we cannot say that on the basis of the record presented, the jury clearly abused its discretion. We therefore must allow each award to remain intact.

II

The defense presented no witnesses at trial. The only evidence admitted in its behalf was the insurance policy issued by Cumis to Myrna Briscoe. During deliberation, the jury foreman asked to see that document, which by its own terms, of course, established the limit of Ms. Briscoe’s coverage for an accident such as the one in question. Over objection by the defendant, the trial judge sent the policy into the jury room. Appellant now complains that to do so was error, it being his contention that such evidence in the hands of the jury is inherently prejudicial and that the jury’s award reflects that fact.

Appellees, on the other hand, rely upon Courville v. State Farm Mutual Automobile Insurance, 386 So.2d 176 (La.App. 3rd Cir. 1980) for the proposition that once any document — even an insurance policy — is admitted into evidence, it may be viewed by the jury on its request.

We disagree. Louisiana Code of Civil Procedure Art. 1794 governs this issue. It provides:

“In reaching a verdict the jurors must rely upon their memories, and, when they retire from the jury room to deliberate, they shall not be allowed access to any written evidence .. . but they may take with them any document received in evidence which requires a physical examination to enable them to arrive at a just conclusion.”

We do not think the above article stands for the proposition that the jury may view any document whatsoever so long as it has been admitted into evidence. To the contrary, Art. 1794 says that submission of written evidence to the jury shall be the exception rather than the rule, and shall be allowed only where physical inspection is necessary to arrive at a just verdict. It follows that, as a precondition to inspection by the jury, the writing must be, at the very least, relevant to some material issue in dispute. Beyond that, it must be more probative than prejudicial.

With regard to the question whether physical inspection of the insurance policy by the jury was necessary to the just resolution of this case, we immediately note that the terms of the policy were completely irrelevant to any factual dispute. Moreover, we recognize the great prejudice that may result when the fact of insurance is injected into a case. Although Louisiana courts do not often have occasion to pass upon the issue, the majority of the other States have decided that evidence which informs the jury that the defendant is insured shall be generally inadmissible. Their case law on this question universally expresses the opinion that the law abhors the prejudice ordinarily engendered by bringing the fact of insurance before the jury, and only under exceptional circumstances will such prejudice be outweighed by superior considerations. See cases collected at 4 A.L.R.2d 748. In Louisiana, the danger of prejudice is often present by the mere fact that an insurer may be sued directly as a party defendant. La.R.S. 22:655. In the absence of true necessity, that risk should not be increased by allowing the jury to view the policy itself, La.C.C.P. Art. 1794, and that rule should apply whether the policy is the defendant’s insurance contract or whether, as here, it is the plaintiff’s uninsured motorist policy.

In the present case, although we think it was error for the trial court to allow the jury to inspect the insurance policy, we are convinced that the error was harmless.

First, there was no serious contest as to liability, and injury was abundantly proved. The total liability of Cumis Insurance under its contract was $15,000.00. The plaintiffs, who were both covered by Briscoe’s policy, were awarded, together, almost eight hundred dollars less than that figure, which indicates that the jury was not appreciably influenced by its knowledge of the policy limit. Finally, the damages recovered by each plaintiff were well within the range normally awarded for such injuries.

For the reasons stated, the verdict and award against the defendants in favor of each plaintiff are affirmed.

AFFIRMED.

REDMANN, C.J., dissenting in part.

REDMANN, Chief Judge,

dissenting in part.

The objection to a jury’s being informed of insurance limits is not merely that the limits are irrelevant (although they are) but that they are also prejudicial to the jury’s impartial determination of the amount of damages. For that reason, it is not harmless error to inform the jury of the limits. It is prejudicial error.

Both to prevent a repetition of like error in future cases and to do justice in this case, we should ignore the amounts the jury fixed and ourselves fix amounts on the basis of our independent evaluation of the record.

      . Defendant Walter Stewart did not appear at trial and has not perfected an appeal to this court.

      . Subluxation is defined as an incomplete or partial dislocation. Steadman’s Medical Dictionary, unabridged edition, 1961.


author: BYRNES, Judge.

text:
    James DEMORUELLE and Philip Gansar v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
    No. 13265.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Jan. 14, 1983.
    George J. Kambur, New Orleans, for plaintiff s-appellants.
    O’Keefe, O’Keefe & Berrigan, George L. La Marca, New Orleans, for defendants-ap-pellees.
    Before BYRNES, KLEES and WARD, JJ.
   BYRNES, Judge.

This is an appeal from a ruling in the trial court dismissing appellants’ claim for damages against the State of Louisiana for injuries sustained when their motorcycle went out of control on Interstate 10 in New Orleans and crashed into an energite crash barrier.

The accident occurred at approximately 2:30 in the afternoon on a clear sunny day. Appellants were on a Honda 750 motorcycle proceeding down the interstate at 35 to 40 miles per hour. The section of interstate where the accident occurred is a two lane exit ramp. At the point of the collision there is an exit to Airline Highway from the right lane. The main exit lane continues past the Airline exit to the Carrollton Avenue exit. The motorcycle on which the appellants were riding went into a skid at the Airline exit and struck an energite crash barrier, causing injuries to the riders. Appellants maintain that, due to the faulty condition of the energite crash barriers, there was sand and pea gravel on the interstate which caused the motorcycle to skid out of control. They further maintain that they struck a broken portion of the energite barrier which extended into the roadway, further compounding their injuries. There is a conflict between the testimony given at trial and that given in appellants’ depositions as to whether or not there was actually gravel on the highway. There is further conflict as to when the appellants noticed that the barrels were broken and in disrepair. What the facts do bear out however, is that the motorcycle went into a skid and struck part of the energite crash barriers.

Appellant’s first contention is that the trial court erred in not finding that the defendant, State of Louisiana, breached its duty to maintain a safe highway under the concept of legal fault set forth in La.C.C. Art. 2317. Appellants rely on the Supreme Court’s pronouncement in Shipp v. The City of Alexandria, 395 So.2d 727 (La.1981) as setting forth the elements of proof in an Art. 2317 claim. The court in Shipp, citing Jones v. City of Baton Rouge, 388 So.2d 737 (La.1978) and Loescher v. Parr, 324 So.2d 441 (La.1976) stated:

“An injured party seeking damages under Art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another and that his injury was caused by the defect. Once these elements are proven, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.” (Citations omitted)

The record shows that the State was the custodian of the energite crash barriers and was responsible for their upkeep. In order to find liability under Art. 2317 it must be shown that the cause of the accident was loose sand and pea gravel on the road, which came from a defective crash barrier.

The threshold question is what caused the motorcycle to go out of control. In deposition the appellants and witnesses stated that they did not know what caused the motorcycle to shimmy and go into a skid. At trial they testified that they saw sand and pea gravel on the highway before going into the skid and this is what caused them to loose control. The investigating officer testified that he saw sand on the highway from the point where the motorcycle hit the barrels forward, but did not note whether there was any sand or pea gravel on the roadway before the point of collision. Three witnesses, the two appellants and Mark Demoruelle, who was following appellants when the accident occurred, each testified that a broken piece of barrel was protruding twelve to fourteen inches into the traveled portion of the highway. Although the trial judge did not give reasons for his judgment he obviously felt the appellants had not carried their burden of proof that the skid was caused by debris on the highway attributable to a vice or defect in a thing within the custody of the State. An appellate court will not overturn such a determination absent a showing of manifest error. Arceneaux v. Dominique, 365 So.2d 1330 (La.1979). Having reviewed the record in this case, we find ample support for the trial court’s conclusion and therefore affirm.

Appellants’ second contention is that the State of Louisiana breached its duty under Civil Code Articles 2315 and 2316 in not providing adequate inspections of the crash barriers. We find no merit in this specification of error. Appellants rely on the testimony given by Nathan M. Childs, Jr., who was the district maintenance engineer for the Department of Transportation at the time of the accident. We quote the germane portion of his testimony here.

Q. Isn’t it also true that your department in the period of time we are speaking of had no scheduled inspection of any of these crash barriers; isn’t that true?
A. We had no scheduled documents, no, sir.
Q. As a matter of fact, your department depended upon complaints from civilians to some extent at that time; Isn’t that true?
A. To some extent, yes.
Q. You further depended upon complaints from the Police Department when there was an accident in an installation area to report any damaged module: would that be correct?
A. Yes sir.”

Appellee’s expert, Robert Paul Roth, Jr., then testified regarding the State’s inspection schedules. Mr. Roth had been with the Department since 1971 and replaced Mr. Childs as District Maintenance Engineer in 1979. When asked if Mr. Childs’ statement that no basic inspections at regular intervals were conducted in April of 1977 was correct, he replied:

“I would say that’s incorrect in that the roads are inspected or were inspected even at that time on a regular basis by the maintenance superintendent. Whether there was a regular inspection, by the crews that actually repaired them, I wouldn’t know.
Q. He said that they would inspect the roads, but have no route to go over and no specific times. Would that be correct?
A. That is correct. The superintendent is not required to travel a particular section of road in a particular period of time. That’s left to his discretion. The guideline is he is to cover all the roads within a two week period. The superintendent travels certain portions of road more frequently than others due to his knowledge of the road and which require repair more than others.
Q. Would it be fair to say you would like him to cover the roads every two weeks but many times he doesn’t every two weeks; Is that true?
A. Not in the last year, no.
Q. You don’t know what the condition was in 1977?
A. No.”

From this testimony the trial judge concluded that the State had a periodic inspection schedule adequate to show due care on its part and thus rebut the inference that it was negligent in maintaining the crash barriers. This conclusion was based on his evaluation of the credibility of the testimony and the weight he felt it should be given. This court will not overturn such determinations absent a showing of manifest error. Arceneaux v. Dominique, supra.

The judgment of the trial court is affirmed with all cost of the appeal to be assessed to appellants.

AFFIRMED.

      . The energite crash barrier is a series of yellow plastic barrels placed together at highway exits to help minimize the severity of collisions.


author: CIACCIO, Judge.

text:
    Moses COLEMAN v. DOUGLAS PUBLIC SERVICE, INC., Willie Dixon, the Louisiana Coca-Cola Bottling Company, Ltd. and Liberty Mutual Insurance Company.
    No. 13189.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Jan. 14, 1983.

      Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for The Louisiana Coca-Cola Bottling Co., Ltd., defendants-appellants.
    Bendana & Carlton, Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for Moses Coleman, plaintiff-appellee.
    Before GARRISON, AUGUSTINE and CIACCIO, JJ.
   CIACCIO, Judge.

This is an action for damages arising out of an automobile accident which occurred on January 17, 1979, near the intersection of St. Joseph and Carondelet Streets, in the City of New Orleans. After a trial on the merits, the district court rendered judgment in favor of the plaintiff, Moses Coleman, and against the defendants, Douglas Public Service, Inc., Louisiana Coca-Cola Bottling Company and Liberty Mutual Insurance Company, in solido, for the sum of $56,543.00 plus legal interest. The Louisiana Coca-Cola Bottling Co., Douglas Public Service, Inc. and Douglas' insurer, Liberty Mutual Insurance Co. appeal from this judgment. We affirm the judgment of the district court.

The issues raised on appeal are: (1) Did the trial court err in finding that the defendant, Coca-Cola Bottling Company, was negligent and that the negligence of Douglas Public Service, Inc. was not an intervening cause of the accident? (2) Was the trial court’s award of damages excessive? and (3) Did the trial court err in failing to rule upon the defendant’s third party demand?

The facts are as follows: At the time of this incident, the plaintiff was attempting to back his automobile onto St. Joseph Street from the parking lot located at the corner of St. Joseph and Carondelet Streets. The plaintiff observed the Douglas truck stopped at the traffic light on the corner of St. Joseph and Carondelet Streets. The plaintiff moved his vehicle forward, away from the street and inward toward the parking lot because he realized that the Douglas truck was going to turn into the wrong lane of traffic, adjacent to where his vehicle was positioned, and could not pass his automobile if it were in the roadway. At the time of the incident, a truck owned by Coca-Cola was parked in the right passage lane on St. Joseph Street, near the corner of Carondelet Street. St. Joseph Street is a two lane roadway with traffic moving in opposite directions. The Douglas truck proceeded around the corner and into the wrong lane of traffic on St. Joseph Street, due to the obstruction presented by the parked Coca-Cola truck. The driver of the Douglas vehicle was observing, through his rear view mirrors, the curb, light standard and fire plug which are located on the corner of this intersection. The driver of the Douglas vehicle had nearly completed the turn with his forty (40) foot tractor-trailer rig when the rear wheels of his trailer came into contact with the left rear fender and bumper of the plaintiff’s vehicle.

As a result of this accident, the plaintiff sustained a bruise of the left hop and pain in the neck, shoulders and back. Shortly after the accident, he was seen by his treating orthopedist, Dr. Stuart Phillips. The plaintiff was examined and diagnosed as having a cervical sprain and an aggravation of a pre-existing degenerative arthritic condition of the lumbar spine. The plaintiff was seen sixteen (16) times by Dr. Phillips commencing with the date of the accident.

On March 12, 1979, Dr. Phillips examined the plaintiff and observed that he was experiencing spasms and limited motion in the back, but that his neck had improved.

On April 9, 1979, the plaintiff’s condition was worse. There were bilateral problems in the legs with a generalized weakness in this area which suggested an injury to the nerves leading to the legs. Dr. Phillips posited that the plaintiff had spinal steno-sis, which is a condition wherein the nerves of the back are encroached upon by an overgrowth of tissue from arthritis and an overgrowth of bone from the aging process. Dr. Phillips continued to treat the plaintiff with pain relievers and anti-inflamatory drugs and hospitalization was suggested. The plaintiff was required to wear a corset to prevent irritation of the affected area.

An electromyogram was administered on May 8, 1979 and it revealed a nerve lesion of the fifth lumbar and the first sacral nerve root.

At the time of trial, surgery was being arranged for the plaintiff. The surgery would involve the removal of all bone and swollen tissue around the joints from the last two or three levels of the spine. The object of the operation is to allow the spinal fluids to flow freely through the spinal column. In this patient, the area from “L3 to the sacrum” were affected. The surgery, which is four or five times more involved than the surgery for a ruptured disc, requires a three week stay in the hospital, at a cost of approximately $5,600. The surgery involves the risk of possible death, paralysis, and a non-success rate of ten to twenty percent. After the operation, the plaintiff would be required to undergo physical therapy. He would have to wear a corset for the rest of his life and would experience pain for the rest of his life. He would also have some weakness in his legs after the operation. Following surgery, the plaintiff would be able to sit longer and walk from two or three blocks to a mile. He would be able to engage in clerical work, although he could not work as a longshoreman again, nor engage in light manual labor. It was Dr. Phillip’s expert opinion that “... the January accident probably aggravated the arthritis and hurried the onset of the spinal stenosis.” (TR. 23).

Negligence

The trial court made the following findings concerning the issue of negligence:

“To hold the plaintiff negligent in this case, even contributorily negligent, the court would have to assume that the plaintiff, who realized danger, pulled his vehicle back into a safety zone and then, as the van passed, deliberately backed out into the moving van as it passed to its rear. I cannot make such an assumption. I conclude, from a preponderance of the evidence, that the moving van’s driver, trying to act prudently, was engrossed in looking through his rear view to be sure he cleared the objects on the sidewalk at the intersection, with the rear of his rig. And, since the cab and front portion of the trailer cleared the plaintiff automobile, he mistakenly assumed his rear would do likewise. He was therefore negligent. I further conclude that the Coca-Cola truck was illegally parked in the moving lane of traffic, unloading its cargo and blocking traffic. It too was therefore negligently parked. This accident was caused by the combined negligence of the Coca Cola truck driver and the Mayflower van’s driver. (If this accident had happened after the comparative negligence law went into effect, I would hold the Coca Cola truck 75% negligent and the Mayflower van 25%.)”

The defendant, Louisiana Coca-Cola Bottling Company, argues that it did not breach a duty owed to the plaintiff, nor create an unreasonable risk, and that the presence of its double parked vehicle was not a proximate cause of the accident. They urge that the actions of the defendant, Douglas Public Service, Inc., were the proximate cause, or, at least, an intervening cause of the accident.

Violation of a statute is negligence per se and if this negligence is the legal cause of the accident, it is actionable. Pierre v. Allstate Insurance Co., 257 La. 471, 242 So.2d 821 (La.,1971); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (La.,1962). In order to determine “legal cause,” one must ascertain: (1) whether the defendant’s conduct is a cause-in-fact of the accident, and (2) whether the risk of the particular injury which the plaintiff suffered was within the scope of the protection of that duty which the defendant has breached. Pierre v. Allstate Insurance Co., supra; Dixie Drive It Yourself System v. American Beverage Co., supra; Becnel v. St. John Police Jury, 364 So.2d 1074 (La.App., 4th Cir.,1978). Therefore, the analysis rests upon a cause in fact/duty risk approach. A cause-in-fact exists if the negligent conduct is a substantial factor in bringing about the resultant harm. Dixie Drive It Yourself System v. American Beverage Co., supra; Becnel v. St. John Baptist Parish Police Jury, supra; State Farm Mutual Insurance Co., v. South Central Bell Telephone Co., 343 So.2d 758 (La.App., 3rd Cir.,1977). That is, a cause-in-fact is a necessary antecedent without which the accident would not have occurred. Dixie Drive It Yourself System v. American Beverage Co., supra, Becnel v. St. John Baptist Parish Police Jury, supra; State Farm Mutual Insurance Co. v. South Central Bell Telephone Co., supra.

In addition to R.S. 32:141, the Motor Vehicle and Traffic provisions of the Municipal Code for the City of New Orleans, Section 38-240 provides:

No person shall stop, stand or park any vehicle upon a street in such a manner or under such conditions as to leave available less than ten feet (10') of the width of the roadway for free movement of vehicular traffic (M.C.S. Ord. No. 3816 § 1, 6-6-68)”

The evidence reveals, and the trial court correctly found, that the Coca-Cola truck was illegally parked in the moving lane of traffic, unloading its cargo and blocking traffic.

The mentioned state statute and municipal ordinance were designed as safety measures. They were intended to insure that there would exist unhampered roadways which were available for the free flow of traffic. Thus they were intended as a prevention against congestion and accidents. The defendant, Coca-Cola, violated the provisions of this ordinance and this violation is negligence per se.

Moreover, the illegally parked Coca-Cola truck was a cause-in-fact of the accident, as it was a substantial factor in bringing about the accident and was a necessary antecedent. The accident would not have occurred if the Coca-Cola truck was not illegally parked, as the Douglas truck would not have been forced into the wrong lane of traffic, thus bringing it into contact with the plaintiffs vehicle.

Furthermore, we find that the risk and harm which the plaintiff encountered, namely, the accident resulting from the congestion and obstruction of a moving traffic lane falls clearly within the scope of protection which the statutes were intended to create. Therefore, we conclude, as did the trial court, that the accident was caused by the combined negligence of the Coca Cola truck driver and the Douglas van driver. Stated another way, the negligence of Douglas Public Service was not an intervening and superceeding cause of the accident, which would relieve Coca-Cola of liability. The trial court did not err on its findings on the issue of negligence.

Damages

The trial court awarded the plaintiff, Moses Coleman, the sum of $56,543.00, consisting of $50,000 for pain, suffering and permanent disability.

The defendant contends that this amount is excessive, because the plaintiff had a pre-existing condition and permanent disability before this accident.

In assessing damages in cases of quasi-offense, much discretion is left to the trial court judge. Perniciaro v. Brinch, 384 So.2d 392 (La.,1980). Before the appellate court will disturb such an award, the record must clearly reveal that the trier of fact abused his discretion in making the award, based upon the particular injuries and their effect upon the particular individual who sustained the injuries. Perniciaro v. Brinch, supra; Rick v. Stevens, 373 So.2d 498 (La.,1979).

The record reveals that the plaintiff was involved in an accident which affected his back, on April 30, 1976, while working for Atlantic & Gulf Stevedore. He was treated by Dr. Romano, Dr. George Cary and Dr. Stuart Phillips. He had been given permission to return to work by Dr. Cary. His former employer was attempting to have him return to light duty as a water boy, watchman or cook when he became involved in the present accident and therefore, was prevented from returning to work.

It was Dr. Phillips’ opinion that the plaintiff’s condition was getting better, or was at least stable, in 1978. Since January, 1979, after the plaintiff was involved in this accident, his condition was found to have worsened. It was Dr. Phillips’ opinion that this accident aggravated the plaintiff’s degenerative arthritic spinal condition and hurried the onset of spinal stenosis.

It is arguable as to whether the plaintiff was permanently disabled prior to this accident, however, there is ample evidence to convince us that the plaintiff was totally and permanently disabled after this accident. Moreover, we are satisfied that the plaintiff’s prior condition was aggravated by this accident.

The plaintiff has a ninth grade education. As a result of this accident he has suffered pain and will continue to have some pain for the rest of his life. His degenerative spinal condition has been aggravated by the accident. He suffers from spinal stenosis, which he did not experience before the accident. The plaintiff has undergone extensive medical treatment since the accident and he is severely restricted in his activities. He has been required to wear a corset and take pain relieving medication. He will have to undergo complex and risky spinal surgery. At best, after surgery and physical therapy, he may be able to return to some clerical type position.

Considering the plaintiff’s injuries and the effect they will have upon him, we do not feel that the trial court abused its discretion in awarding general damages of $50,000. The plaintiff is entitled to be compensated for the aggravation of his pre-ex-isting condition, the onset of spinal stenosis precipitated by the accident, the pain and suffering and the permanent disability which this accident caused. The award of damages is not excessive.

Third Party Demand

Defendant, Louisiana Coca-Cola Bottling Co., argues that the trial court erred in failing to rule on the third party demand which it made against the defendants, Douglas Public Service, Inc., its insurer and its driver. The third party demand seeks indemnity and/or contribution.

When actionable negligence of two tort-feasors contributes in causing harm to a third party, each tort feasor is responsible for the damage and they are solidarily liable. Dixie Drive It Yourself System v. American Beverage Co., supra.

Under the statute governing solida-ry obligors, which was in effect at the time of this accident, each debtor in solido was liable for its virile portion of the obligation. C.C.Art. 2103.

The trial court judgment held the defendants, Douglas Public Service, Inc., its insurer, and Louisiana Coca-Cola Bottling Co. liable in solido for the sum of $56,543.00 plus interest. The trial court judgment implicitly denied the defendants’ third party demand for indemnity and gave effect to the claim for contribution. The trial court did not err in this regard.

For the reasons assigned, the judgment of the trial court is affirmed. Costs are assessed against the defendants-appellants.

AFFIRMED.

      . Although Douglas Public Service, Inc. and their insurer appeal this matter, no briefs are filed on their behalf.

      . On oral argument, plaintiff acknowledged receipt of one-half the judgment amount from the defendant, Douglas Public Service, Inc.


author: GARRISON, Judge.

text:
    In the Interest of David LAMM.
    Nos. 13165, 13166.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Jan. 14, 1983.
    J. Samuel Shambra, New Orleans, for plaintiff-appellee.
    William C. Cox, Staff Atty., State of La., Dept, of Health and Human Resources, New Orleans, for defendant-appellant.
    Before SCHOTT, GARRISON and WILLIAMS, JJ.
   GARRISON, Judge.

NO. 13165

This is an appeal by the State of Louisiana, Department of Health and Human Resources from a judgment of the juvenile court granting to an attorney an award of $700.00 in attorney’s fees for services rendered by him as court appointed counsel to represent the rights of the child in an abandonment proceeding. From that judgment, which we affirm, defendant appeals.

On appeal the State argues that:

1. The statutes only provide for the appointment of one attorney, i.e. for the parents;
2. To require the State to pay the bill constitutes an expenditure of State funds without legislative appropriation;
3. That the judgment constitutes an improper money judgment against the State; and
4. That there is improper venue.

ISSUE I

The child is absolutely allowed court appointed counsel. The Louisiana Code of Juvenile Procedure Art. 95 provides as follows:

“A. A child shall be entitled to counsel in the following proceedings:
“(1) A hearing to determine continued custody;
“(2) An apperance to answer a petition which requests that the child be adjudicated to be a delinquent;
“(3) A transfer hearing pursuant to R.S. 13:1571.1 et seq.;
“(4) An adjudication hearing if the petition requests that the child be adjudicated to be a delinquent;
“(5) A disposition hearing if the child has been adjudicated to be a delinquent;
“(6) A hearing on a motion to modify the judgment of disposition in delinquency proceedings if the motion is filed by the district attorney or probation officer, unless the motion requests that the disposition be less restrictive; “(7) An appeal if the child has been adjudicated to be a delinquent.
“B. The child shall be entitled to counsel in any other proceeding.
“C. If the parents of the child are financially unable to afford counsel, the court shall appoint counsel in accordance with R.S. 15:141 et seq.
“D. If the parents of the child are financially able to afford counsel but fail to employ counsel, the court may appoint counsel to represent the child at the expense of the parents in accordance with R.S. 15:148.” (emphasis added)

In State in Interest of Brown, 387 So.2d 1366 (La.App. 4th Cir.1980), this court stated as follows:

“It is clear from a reading of this provision that a child shall be entitled to counsel in a hearing to determine continued custody or in any other proceeding. We recognize the practical problems encountered by the dedicated juvenile court judge, when confronted with the requirements of Art. 95. Nevertheless, the legislature, in clear language, has mandated the requirement for the appointment of counsel to represent the child. We appreciate also that in the mind of the juvenile court judge the appointment of an attorney to represent the child may be a vain and useless act where the interest of the state is represented by the district attorney and the parents’ interest is represented by a court-appointed attorney or one selected by the parents. Still, the legislative mandate is clear. See In Interest of Genusa, 381 So.2d 504 (La.1980).
“We find no merit to the state’s contention that LSA-R.S. 14:403 G(9) makes the appointment of an attorney for the child unnecessary because the district attorney represents the interest of the state, ‘which interest shall be the protection of the child.’
“In juvenile proceedings, the responsibility of the state is the protection of the child. The responsibility of the court is to adjudicate in and for the interest and welfare of the child. The worker assigned to the case is interested in the child’s welfare, and the attorney representing the parents also represents the interest and welfare of his client. Although the juvenile court judge and the court officers have a specific responsibility for the protection of the child, each in his or her own way of thinking may sincerely believe that this interest may be best served by different dispositions and different custody placements for the child. At any rate, while perhaps in some instances it is difficult to carry out, the juvenile court judge is mandated by the code to provide counsel as set forth in Code of Juvenile Procedure Art. 95.

ISSUES II AND III

In State v. Campbell, 324 So.2d 395 (La.1976), the Louisiana Supreme Court stated:

“Nor do we decide that in an appropriate proceeding, under appropriate circumstances, the district court would lack the power to require a particular subdivision, or the State itself, to provide for payment of necessary expenses, including counsel fees, for indigent defendants.” (at 398)

See also: State v. Doucet, 352 So.2d 222 (La.1977); State v. Henderson, 341 So.2d 879 (La.1977); Knickerbocker v. Vermilion Parish Police, 371 So.2d 1298 (La.App. 3rd Cir.1979).

In the instant appeal the trial judge has concluded that a proper case exists. We agree.

The debt of a child is the parents’ debt because of the child’s incapacity to contract and because of the tutorship of the parent of a minor child. A child cannot waive his right to counsel in the absence of parental consent. C.J.P. Art. 96. Because Lamm’s parents are physically absent they could not have consented to or concurred in a waiver of his right to counsel. If the parents are indigent, then a fortiorari the child must be presumed to be indigent, absent an affirmative showing to the contrary, because the parents are responsible for the child’s debts.

ISSUE IV

Turning to the issue of venue, it is improperly before this court as it cannot be raised for the first time on appeal.

For the reasons discussed the judgment below is affirmed.

AFFIRMED.

NO. 13166

For the reasons assigned in No. 13165 the judgment is affirmed.

AFFIRMED.

NOS. 13165, 13166

SCHOTT, Judge, concurring:

This being a proceeding to have a child declared abandoned under LSA-R.S. 9:403, it is difficult to understand why it was necessary to appoint an attorney for the child — except for a literal interpretation of LSA-C.J.P. Art. 95 B and this court’s decision in State In Interest of Brown, 387 So.2d 1366 (La.App. 4th Cir.1980). The abandonment statute is designed to protect the child who has been deserted by his parents and provides a mechanism for the court to make a disposition of such a child according to his best interest. The agency or officer of the court who initiates the proceedings has no interest adverse to the child such as to make appropriate the appointment of an attorney for the child. For this reason I do not believe that the legislature intended C.J.P. Art. 95 B to apply to this type of proceedings.

Perhaps State In Interest of Brown, supra, can be distinguished on the basis that it was concerned with a proceeding to have the child declared to be in need of care pursuant to C.J.P. Arts. 25(3) and 85 and not an abandonment proceeding such as this. Perhaps a literal application of C.J.P. Art. 95 B was unavoidable in Brown since that article and those being implemented in the case all come from the same Code of Juvenile Procedure. In contrast R.S. 9:403 is a special act which, in its application, need not be subject to the general provisions of the Code. On the other hand, if Brown cannot be distinguished, I would overrule it and save what seems to be an unnecessary duplication of attorneys representing the same identical side of a law suit.

Nonetheless since the trial judge was bound to follow Brown he quite properly appointed an attorney for the child. The attorney performed services for which he should be compensated so that I would not retroactively overrule Brown and deprive the appointed attorney of compensation.

I am troubled by the result of affirming what is tantamount to a money judgment against the state with no statutory authority to support such a result but find the following from State v. Carruth, 324 So.2d 400 (La.1975) to be supportive:

“However, we are cited to no authority permitting a summary proceeding against the state in a criminal case resulting in a judgment against the state. Were there no statutory device for compensating appointed lawyers, extraordinary judicial measures in aid of the jurisdiction of the court might be required. There is, however, statutory material governing the appointment and compensation of attorneys appointed to represent indigent defendants. R.S. 15:141. See State v. Bryant, et al, La. 324 So.2d 389, decided this date.” (Emphasis mine)

Assuming that Brown cannot be overruled and that a literal interpretation of C.J.P. Art. 95 B is required, the trial court was mandated to appoint an attorney for the child by the legislature which failed to provide a statutory device for compensating him and thereby authorized “extraordinary judicial measures” in the form of a money judgment against the state for the fee of the attorney.

      . After a complete search, it was concluded that Master David Lamm has been abandoned by both his parents.

      . Panel composed of Judges Gulotta, Garrison and Chehardy.

       LSA-R.S. 14:403 G(9), in pertinent part reads:
      ‘. The district attorney shall represent the interest of the state, which interest shall be the protection of the child. The court may also appoint an attorney to represent the sole interest of the child.’ ” (pp. 1368-69)