author: CUTRER, Judge.

text:
    Ronnie L. FOREMAN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE, et al., Defendants-Appellees.
    No. 8802.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Hunt, Godwin, Painter & Roddy, Ernest C. Hunt, Jr., Lake Charles, for plaintiff-appellant.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, John S. Bradford, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

This is an appeal from a trial court judgment for damages arising out of an inter-sectional accident occurring in the city of Lake Charles, Louisiana, involving vehicles driven by Ronnie Foreman and David Tra-han.

Foreman brought suit against State Farm Mutual Automobile Insurance Company (State Farm), the liability insurer of Trahan, for damages incurred as a result of an accident occurring on January 19, 1978, at the intersection of Ryan Street and Sale Road. A jury trial resulted in a verdict awarding Foreman $11,600.00 in damages. Judgment was rendered accordingly. Foreman appeals seeking an increase in damages. State Farm answered the appeal contending that Trahan was not liable and, in the alternative, if liability is established, the damage award is excessive.

The issues on appeal are:

(1) Whether Trahan was liable for the damages incurred by Foreman in the accident; and
(2) Whether the jury erred in its award of damages.
LIABILITY

The jury answered interrogatories regarding liability of Trahan as follows:

“Do you find that David Trahan was negligent and this negligence was a cause of the accident?
Answer Yes or No Answer: ‘Yes’
******
“Do you find that Ronnie Foreman was negligent and this negligence was a cause of the accident?
Answer Yes or No
Answer: ‘No’ ”

Implicit in the jury’s answers to the above interrogatories is the factual conclusion that Trahan did not comply with the law applying to motorists making a left turn at an intersection.

The law of this state requires that the driver of a vehicle intending to turn left within an intersection yield to oncoming vehicles which are so close as to constitute an immediate hazard. Our courts have consistently held that a motorist attempting a left turn is required to exercise a very high degree of care. Such a left-turning motorist, when involved in a collision, is burdened with the presumption of liability for the accident. The left-turning driver must prove that he is free from negligence to avoid liability. This burden of proof applies to the defendant whether or not the intersection is controlled by semaphore lights, including a left-turn signal. If the left-turn motorist is faced with a green arrow left-turn signal, defendant must prove that he was making such turn while the arrow was green or that he had pre-empted the intersection. Dunn v. Snyder, 388 So.2d 450 (La.App. 2nd Cir. 1980). With these principles in mind we examine the facts in the case at hand.

The record reflects that on the morning of January 19, 1978, Foreman was driving his 1973 Volvo north on Ryan Street, a four lane thoroughfare, that intersects Sale Road. At the same time, Trahan was proceeding south on Ryan Street, intending to turn left into Sale Road. This intersection is controlled by electric semaphore lights. Motorists approaching the intersection traveling on Ryan Street who desire to make a left turn are afforded a traffic light sequence which includes an illumined green arrow signaling that it is safe to make a left turn. When the left turn arrow is lighted, traffic approaching from the opposite direction faces a red light.

Foreman and his passenger testified that as he approached the intersection the light controlling their lane of traffic turned from red to green. This transpired when they were approximately 200 feet from the light. Foreman proceeded into the intersection and as he did so, Trahan made a left turn into Foreman’s lane of travel. Foreman was unable to avoid striking the Trahan vehicle. Foreman’s testimony was corroborated by a disinterested witness who was stopped at the light facing north with the intention of making a left turn on Sale Road. She stated that the light had turned green for Foreman before he arrived at the intersection. As Foreman proceeded into the intersection, Trahan turned left in front of Foreman causing the collision. The Foreman car was damaged on the left front and the Trahan car was damaged in the area of the right door.

Trahan and his two sisters, who were his passengers, testified that the left-turn arrow was green when Trahan was making his left turn. This means that the light would have been on red for Foreman when he came into the intersection.

The jury, in making its determination that Trahan was negligent and Foreman was free of negligence, must have rejected the testimony of Trahan and his passengers and accepted the testimony of Foreman, his passenger and the disinterested witness. We find no error in this determination by the jury.

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasona ble factual basis for the trial court’s finding, on review the appellate court should not disturb the factual finding in the absence of manifest error....”

Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973).

QUANTUM

The jury returned a verdict for damages by answering an interrogatory as follows:

“What were the damages suffered by Ronnie Foreman as a result of the accident of January 19, 1978?
$ ‘11.600’ ”

The principal issue on appeal is whether the jury erred in its assessment of these damages. In making its quantum determination, the jury was faced with unusual facts and circumstances which greatly increased the usual complexities of determining damages. As will be discussed hereafter, we have concluded that the jury did not err in its determination of quantum.

The question of quantum is made more difficult than usual because Foreman was involved in three automobile accidents, each allegedly causing complaints of injuries and pain in the neck and shoulder areas. Foreman was involved in accidents occurring on the following dates:

August 28, 1977 — Foreman’s vehicle was struck from the rear at the intersection of Ryan Street and Prien Lake Road in Lake Charles;
January 19, 1978 — the accident in question in this suit;
July 8, 1980 — Another ear changed lanes striking Foreman’s car at the left front.

Foreman filed two suits on August 16, 1978. The first suit arose out of Accident # 1 and the second suit arose out of Accident # 2. The suit arising out of Accident # 1 was settled. The suit at hand concerns Accident # 2 which occurred January 19, 1978.

In addition to the problem of multiple accidents, the solution of this suit is further complicated by the fact that the principal complaints following each accident were mainly centered around pain in Foreman’s cervical and shoulder area. He also complained of low back pain after Accident # 3.

Foreman argues that following Accident # 2 and before Accident # 3, he incurred $10,704.52 as medical expenses. He contends that all these expenses are attributable to the injuries received in the second accident. As we shall show hereinafter, the medical testimony does not support Foreman’s position that such expenses were incurred as a result of injuries received in Accident # 2. The evidence will show that it is more probable than not that a majority of such expenses arose from injuries received in Accident # 1.

Foreman kept a diary following the first accident. The notations in the diary were used at trial to refresh his memory. We feel that it is important to set forth Foreman’s testimony concerning his physical problems following the first accident. On the cross examination Foreman testified as follows:

“Q. Mr. Foreman, you said you were getting back to normal just prior to the first — just prior to the second accident, you felt you were getting back to normal? Is that correct?
“A. Yes, I felt like I was on the way.
“Q. Now if we go back, you first saw Dr. Drez—
“A. Right.
“Q. In September, or August, early August — late August or early September?
“A. First of September — I’m sure it would have been one of the two; right.
“Q. And I want you to look at your — I hand you your diary here.
Now, Mr. Foreman, on September 27th you note in your diary that you saw Dr. Drez, and that there was no sign of relief. Isn’t that correct?
“A. On September 27, right. I was — I think I was quoting Dr. Drez. No direct side — but—Yeah, that’s what is written in here.
“Q. And then you complain of pain on the 23rd, showing sharp pain in your legs and arms, and you note then that you must get a new doctor.
* * * * * *
“Q. I think it’s October — Well, on October 30, you note that there are very sharp pains, soreness, stiffness, in your legs and arms, isn’t that correct?
“A. Yes; that would be the 30th, right.
“Q. You saw Dr. Foster on November 11th, and at that time Dr. Foster indicated that he might want to do a myelo-gram on you?
‘A. That’s right.
“Q. And you were afraid to do the myelogram at that time?
“A. That’s right.
“Q. Didn’t want to have one done. Now on December 8th you said you were afraid of a myelogram, but you must get one done if the sharp pains continue; isn’t that correct?
“A. Well, it doesn’t say that.
“Q. It says afraid of myelogram; felt like must get one, dash, pain don’t subside.
‘A. Yeah.
$ ‡ »i< * *
“Q. On — well, let’s just go a few days, Mr. Foreman. A few days on, in December of — December 9th, drove to Houston, very tired, leg, arm, neck, very tired, arm sharp pains, is your next day.
“A. Okay.
“Q. Just to skip a couple of days, on December 12th you had tight neck on the right side and back, is that correct?
‘A. Yes.
“Q. On the 13th your legs and arms were burning?
‘A. Yes.
“Q. On the 14th your neck and your arm hurt?
‘A. Right.
“Q. We go just a little bit forward, on the 22nd you called Dr. LiteI. You are having pains in your rear, or rear side, left rear side, back and neck severe pain. You called Dr. Litel for an appointment so you could see another doctor at that time?
‘A. Right.
♦ ¡f: # >f: >f: *
“Q. December 25th you are having pain in your right arm and legs. The 26th, you are having sharp pulsating pains in your arm. January 3rd, you need a muscle relaxer. January 4th is when you go see Dr. Lange, and I presume that he gives you the treatment. January 10th, very sore neck. January 12th neck and arm, legs, sharp pains. January 15th, you are having sharp pains in leg, spasmodic sharp pains in back. January 16th your right arm, shoulder, right neck hurt. January 17th, sharp pains, no more muscle relaxers. You are out of muscle relaxers. January 18th, you go to see Dr. Lange again, and he gives you some treatment. January 19th, you have your automobile accident. Now you don’t go see another doctor after that automobile accident, and you go to the hospital, until you go back to see Dr. Lange, I think sometime — your next note that you see Dr. Lange on February 1st.
‘A. Okay.
“Q. Is that correct?
‘A. Yes.
“Q. So obviously you have been having difficulties right up until the day of the second accident, isn’t that correct?
“A. Yes, that’s correct. I think this would reflect that.
“Q. And during the time period of the second accident, from January 19th to your third accident, you indicated that over that period of time you got somewhat better?
‘A. Yes.”

We quote this portion of Foreman’s testimony which shows continued pain in his neck, arms and legs up until Accident # 2 which occurred January 19,1978. Also, it is important to note that Foreman admits that Dr. Foster recommended that a myelo-gram be performed as a result of injuries received in Accident # 1. The myelogram was refused at that time by Foreman but was later performed by Dr. Foster after Accident # 2.

Foreman saw several physicians, an osteopath, and a physical therapist following the accidents.

Following Accident # 1, he first saw Dr. David Drez, an orthopedic surgeon. Dr. Drez examined Foreman on September 1, 1977. Foreman was complaining of pain in the neck and shoulders. Dr. Drez, after examination, concluded that Foreman had sustained a straining injury to the cervical musculature. He prescribed medication and recommended therapy to be administered by Dowell Fontenot. Dr. Drez saw Foreman on two other occasions; both times his complaints were about the same as those on the first examination. Further examinations were made and this physician each time felt that Foreman’s problem was muscular in origin. Dr. Drez last saw Foreman on September 27, 1977.

Dr. William Foster, a neurosurgeon, saw Foreman on November 10, 1977. Foreman was complaining of pain in the lower cervical region, arms and legs. Dr. Foster stated that Foreman’s past history showed that he had been “having neck pains of an unknown origin for approximately one year prior to this office visit.” Foreman also related that he had not obtained any relief from the treatment of Dr. Drez or Dowell Fontenot, the therapist.

Dr. Foster performed a complete neurological examination and his diagnosis was as follows: “I felt that he had sustained a cervical straining injury with nerve root irritation.” Dr. Foster prescribed medication and recommended a myelogram to ascertain the cause of the nerve root irritation. This was refused by Foreman.

Dr. Foster next saw Foreman on April 22, 1978 (after Accident # 2). The complaints of pain were basically the same as those made on the visit following Accident # 1. Dr. Foster’s findings after Accident # 2 were substantially the same as his findings after Accident # 1.

The next visit by Foreman to Dr. Foster occurred on June 25, 1978. Foreman continued to complain of neck and arm pains. Foreman was admitted to the hospital for conservative treatment. After the complaints persisted, Foreman agreed that Dr. Foster could perform a myelogram. This was done and revealed a defect at the C-5-6 level. Initially, Dr. Foster felt that the defect cou|d represent a degenerative disc. Foreman was released from the hospital and medication prescribed. Foreman was later hospitalized on July 20, 1978, for a treatment of headaches which were caused by a procedure connected with the myelo-gram. This problem was alleviated. Foreman was released from the hospital but was re-admitted for a second myelogram in order for Dr. Foster to ascertain the nature of the defect. This second myelogram was performed on October 17, 1979. This mye-logram revealed that the defect which had previously been present had disappeared. Dr. Foster explained the disappearance of the defect by pointing out that the defect had been caused by a “small hematoma or edema” which had cleared up.

On October 23, 1979, Dr. Foster called in Dr. George Schneider, an orthopedic surgeon, to assume the treatment of Foreman. Dr. Foster didn’t see Foreman again until January 27, 1981, after the third accident.

Dr. Schneider saw Foreman on November 1, 1979, March 27, 1980, April 17, 1980 and July 10,1980 (after the third accident which had occurred July 8, 1980). Prior to the July 10, 1980 visit, Foreman’s complaints were generally the same as those given to Dr. Foster. Foreman stated that his condition was improving and his pain was only intermittent until the occurrence of the third accident. This latter accident resulted in an increase in complaints and, for the first time, Dr. Schneider found objective signs of injury. This physician found spasms and atrophy developed in the right leg indicating a back problem. He felt that the third accident severely aggravated the existing condition of Foreman.

Dr. Foster again saw Foreman in January 1981 (after Accident # 3). He found spasm in the neck area and atrophy in the right leg. He stated that these conditions were the result of Accident # 3. He based this conclusion on a review of his prior examination and x-rays taken from the my-elogram procedure.

Dr. Foster testified that even though he had been seeing Foreman after Accidents # 1 and # 2, it would be medically impossible for him to differentiate between which accident caused what injury. The only opinion that Dr. Foster could give in that regard was that Accident # 2 could have aggravated Foreman’s condition to some extent, thereby requiring some additional time for recovery. Dr. Foster stated that he based this conclusion upon the history and subjective complaints of pain as related to him by Foreman.

Dr. Gerald Litel, a neurosurgeon, was consulted by Foreman on three occasions during 1978 (after Accident # 2); February 3rd, March 2nd and March 16th. Dr. Litel testified that he diagnosed a cervical strain. He found no disc injury.

Foreman went to see Dr. Gerald Lange, a general practitioner in Beaumont, Texas, on January 3, 1979, after Accident # 1 but before Accident # 2. This physician diagnosed a ruptured disc at the C-5-6 area. He gave Foreman a shot for pain. This treatment was repeated on a weekly or bi-weekly basis until May 22, 1979. He stated that Foreman’s condition would require surgery in the cervical area. This diagnosis is not supported by any of the other medical evidence.

Foreman was seen by Dr. Masak Waka-bayashi, a radiologist, on March 9, 1981, for examination to determine if there existed any disc injury. This physician performed a thermogram of the cervical and lumbar region. He was of the opinion that Foreman had no disc injury.

The jury was not asked to make separate awards for special and general damages. The total award of $11,600.00 was returned. Under these circumstances it will be necessary for us to make findings first as to what special damages were attributable to Accident # 2 and, secondly, to consider what general damages emanated from this accident.

As we consider the testimony of Foreman and the several physicians, especially Dr. Foster, the principal physician, we conclude that Accident # 1 initiated the cervical region condition which continued to exist following Accident # 2. A nerve root irritation was diagnosed by Dr. Foster after Accident # 1. This caused the physician to recommend a myelogram. This myelogram was refused by Foreman at that time but was later performed after Accident # 2. The defect found on this occasion was later determined to be caused by a single bruise (edema), which disappeared as shown by the second myelogram. This sequence of events convinces us that it is more probable than not that the initial nerve root irritation in the cervical region emanated from Accident # 1.

We do find, however, that some injury, although not appreciable, resulted from Accident #2. We find that Accident # 2 imposed some additional trauma upon an existing condition which lengthened the time of recovery to some extent.

Foreman testified that before Accident # 2 he was improving and his pain was only intermittent. We note that during the entire time, up until the time of trial, Foreman performed his regular duties as a photographer for McNeese State University. Further, Foreman stated that following Accident # 1, he did not participate in duck hunting during the 1977-1978 season. He did, however, participate by hunting regularly in the 1978-1979 and 1979-1980 seasons.

As we examine the evidence in its totality, we find that, of the medical expenses incurred and listed below (with two exceptions), twenty percent of these expenses are attributable to injuries received in Accident # 2. The two exceptions are the bill of Dr. Bono for $336.00 and St. Patrick’s Hospital in the amount of $195.00. These two items are attributable in full to Accident # 2. Dr. Bono repaired two teeth injured in Accident # 2 and the St. Patrick’s Hospital Bill covered an emergency room use as a result of Accident # 2. The total amount of medical expenses attributable to Accident # 2 is $2,565.70.

Foreman contends that he also proved the following special damages were attributable to Accident # 2 and which should be allowed:

Depreciation of value of Foreman’s automobile $2,000.00
Car Rental 1,770.00
Loss of sick leave and compensatory time 4,461.90

As to the loss of value of the automobile, Foreman called as a witness, Richard Boese. Boese was qualified as an expert in the body repair business. He had purchased and sold some cars but had never been in the business of buying or selling cars, nor did he hold himself out as an expert in the appraisal of the value of automobiles. He expressed an opinion that a “ball park figure” for depreciation of the value of Foreman’s car would be $2,000.00 to $2,500.00. It is not clear from his testimony whether this depreciation took place as a result of Accident # 1 or Accident # 2, or both. We do not consider this item as having been proven by preponderance of the evidence.

The ear rental of $1,770.00 is supported by the bills in the record. These bills show that Foreman drove the rental equipment for a total of 3,344 miles in approximately two months following Accident # 2. This amount is recoverable by Foreman.

As to the sick leave and loss of compensatory time, this loss was principally due to time spent going to the various physicians. We note that Foreman continued to perform his duties as a photographer for McNeese State University during the entire time except when he was hospitalized for the myelogram in 1978. For the reasons given for alloting twenty percent of the medical expenses to Accident # 2, we also allot twenty percent of sick leave and loss of compensatory time ($892.30) to Accident # 2.

Finally, Foreman contends that the jury award should be increased to include a greater award for general damages. We do not know how the jury allocated the various medical, other special and general damages. After considering the amount of special damages attributable to Accident # 2, we arrive at a conclusion that the jury was not clearly wrong in its total award of $11,-600.00 including general damages. When we deduct the specials from such total award, the remainder is $6,372.00. After a careful perusal of the record we conclude that an award of this sum for general damages due to injuries received in Accident # 2 is neither excessive nor inadequate. Thus, the total jury award of $11,600.00 was within the discretion of the jury and will not be disturbed upon appeal.

For the reasons assigned, the judgment of the trial court is affirmed. Plaintiff-appellant is to pay the costs of this appeal.

AFFIRMED.

      . Number of Visits
      15 Dr. Foster $ 1,305.00 (Tr. 282, 283)
      Diagnostic Radiology 258.49 (Tr. 290)
      5 Lake Charles Memorial Hospital 3,617.63 (Tr. 290)
      1 St. Patrick’s Hospital 195.00 (Tr. 287)

        12 Lake Charles Physical Therapy 196.00 (Tr. 288, 289, 148, 149)
      1 Methodist Hospital, Houston, Tx 75.00 (Tr. 290)
      1 Dr. Barsela, Houston, Tx 140.00 (Tr. 290)
      Dr. Cook 124.00 (Tr. 290)
      Dr. Karam 25.00 (Tr. 290)
      49 Dr. Lange, Beaumont, Tx 1,925.00 (Tr. 290)
      7 Dr. George Schneider 160.00 (Tr. 152)
      2 Dr. Gerald Litel 50.00 (Tr. 290)
      1 Dr. Barkemeyer 140.00 (Tr. 290)
      1 Dr. Stubbefield 25.00 (Tr. 150)
      5 Dr. Bono 336.00 (Tr. 290)
      Drs. Kent and McCauley 50.00 (Tr. 290)
      2 St. Patrick’s Radiology 50.00 (Tr. 290)
      Dr. K. Griffith 13.00 (Tr. 290)
      66 Dr. Carl Warden 1,850.00 (Tr. 449)
      _ Barger’s Drugs 169.00 (Tr. 290)
      168 TOTAL $10,704.52

      . The time of repairs was protracted as the parts for repairs had to be ordered from Sweden.


source: Caselaw Access Project

author: SWIFT, Judge.

license: Public Domain

text:
    Jimmie L. CLOUD, Plaintiff-Appellant, v. HUFFMAN MOTOR COMPANY, INC., et al., Defendants-Appellees.
    No. 8803.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 21, 1982.

      A. Gaynor Soileau of Pucheu, Soileau & Coreil, Ville Platte, for plaintiff-appellant.
    Gachassin & Capretz, Susan Severance, Lafayette, Kennedy & Yeager, Ralph W. Kennedy, Gist, Methvin, Hughes & Mun-sterman, John W. Munsterman, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

Jimmie L. Cloud filed this suit against Huffman Motor Company (Huffman), Cum-mins Engine Company (Cummins) and General Motors Corporation (GMC) to rescind the sale by Huffman to the plaintiff of a 1979 GMC tractor truck assembled by GMC with a diesel engine manufactured by Cum-mins. Subsequently, Huffman filed a third party demand against Cummins and GMC seeking indemnification from the manufacturers in the event of a recovery by Cloud from Huffman. From a judgment dismissing the plaintiff’s demands, he has appealed.

On February 28, 1980, the plaintiff purchased a new truck from Huffman for a cash price of $48,153.00. After adding finance and insurance charges the total cost was $72,646.92, less a credit of $18,000.00 for the trade-in of another vehicle. The plaintiff took possession of the truck on that date and began using it in the operation of his business of hauling gravel.

On March 10, 1980, Cloud returned the truck to Huffman complaining that the windshield wipers were not working, the fuel pump was sucking air, the cab was leaking water and the transmission was leaking oil. These items were repaired and the truck was returned to him in two days.

On March 28 the plaintiff again notified Huffman that the cab was leaking and the windshield wipers were not operating properly. The windshield wiper motors as well as a low air pressure switch were replaced on that date.

On April 7 the truck was returned to Huffman. A door was realigned and some resealing work was done around the cab lights and air horn.

Subsequently, the truck began using excessive amounts of oil and the plaintiff informed Huffman of this problem. On June 4 pursuant to an agreement with Huffman, Cloud brought the truck to Cummins Sales and Service in Shreveport, Louisiana, where the motor was overhauled. At that time the vehicle had been driven about 23,800 miles.

The plaintiff testified that on June 20 the fuel pump ceased to work properly and it was “worked on” at a truck center in Port Allen.

On August 28 the fuel pump went out again and the plaintiff brought the vehicle to Huffman to have it repaired. During this visit Mr. Cloud saw Huffman’s personnel placing an air filter in a new truck and he learned that truck had been delivered to the dealer without an air filter. That night Cloud checked his truck and discovered its air filter was missing. Huffman installed one the next morning. On that occasion the plaintiff asked Huffman to replace the engine. His request was refused, but eventually Huffman and GMC agreed to overhaul the engine. The truck stayed in the shop three days for this overhaul in September, 1980. The mileage then on the truck was approximately 51,700.

Billy McManus, Huffman’s diesel mechanic who performed the second overhaul, testified that the engine showed no signs of excessive wear at that time. However, the pistons, liners, rod bearings, main bearings and three gasket heads were replaced, the turbo charger was overhauled and the engine was cleaned. McManus also checked the air compressor, but found nothing wrong with it.

Just before this overhaul the truck was inspected by Jim Wright, a diesel mechanic for another concern in Alexandria, and photographs were taken. The photographs and Mr. Wright’s testimony reveal that the engine and the air intake system were extremely dirty.

Following the September repair of the engine by Huffman the vehicle was returned to the plaintiff who again placed it in service. According to Cloud’s testimony, the same problems began to occur shortly thereafter. He said that the engine would smoke, was difficult to start and the vehicle again began experiencing problems with oil and water consumption. The plaintiff also stated that he continued to have problems with the windshield wipers which prevented him from operating the truck during rainy weather.

On October 20,1980, the plaintiff filed his petition seeking a recision of the sale of the truck. However, he continued to use the vehicle until the middle of January, 1981, when, according to Cloud the engine lost oil pressure to the extent that he considered further operation to be damaging. The plaintiff testified that at this time the vehicle had been driven 88,000 or .89,000 miles. During this IOV2 month period Mr. Cloud usually hauled two to three loads of sand or gravel per day, each containing approximately 25 yards.

The plaintiff admitted that he did not change the air filter, as recommended by GMC’s maintenance schedule, during the IOV2 months that he operated the vehicle. However, such inaction was in reliance on the air filter gauge on the truck’s instrument panel and the instruction contained in Cummins’ manual not to change the filter until the gauge so indicated. Since the gauge did not show that the filter needed changing, we do not believe that the plaintiff caused the damages which resulted.

Mr. Charles Deville, the plaintiff’s brother-in-law, testified that he helped drive the GMC truck for the plaintiff after the second overhaul. He stated that between September and December of 1980 he hauled on the average two or three loads a week. The only problems he experienced with the truck were that the windshield wipers did not work and the steering wheel vibrated. He added that the oil pressure dropped to 45 pounds in December, 1980.

In February, 1981, the plaintiff stopped making payments to the finance company and subsequently the vehicle was seized and sold at public auction. At the time of the trial the truck was in the possession of Huffman. The latter’s mechanic testified that after the truck was returned to Huffman its oil pressure was 38 pounds during operation and 20 pounds while idling. He said that the normal oil pressure for such a vehicle during operation was between 40 to 70 pounds and during idle between 15 to 30 pounds. He further testified that the oil in the vehicle was dirty, but after changing the oil and oil filters the oil pressure was again tested and found to be 58 pounds during operation and 25 pounds during idle, well within the normal limits.

In his written reasons for judgment the trial judge said, “the preponderance of the evidence indicates that at the time of delivery, this vehicle did not have the air cleaner in the canister and that this failure was the cause of the mechanical problems of the engine which have been shown.” However, the court found that this vehicle did not have a defect which rendered it absolutely useless or its use so inconvenient and imperfect that the buyer would not have purchased it had he known of the missing filter and rendered judgment in favor of the defendants rejecting the plaintiff’s demands. Thus, it was unnecessary for the trial court to render judgment on Huffman’s third party demand.

The principal issue before this court is whether the district court erred in finding that the truck did not have a redhibitory defect which entitled the plaintiff to a rescission of the sale.

The codal basis for a redhibitory action is LSA-C.C. Art. 2520 which provides:

“Redhibition, definition. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

A redhibitory defect entitling the buyer to rescind the sale is a non-apparent defect existing before the sale in the thing sold which renders it useless or its use so imperfect, that the buyer would not have bought it if he had known of the defect. LSA-C.C. Arts. 2520, 2521, and 2530.

We agree with the trial judge that the preponderance of the evidence is to the effect that at the time of delivery an air cleaner was missing from its canister on the truck and this eventually caused the problems with the engine and air intake system. Employees of Huffman testified that the vehicle was inspected before delivery to the plaintiff and the inspection form revealed that the air cleaner was checked. On the other hand, Mr. Cloud and other witnesses testified that when plaintiff checked the canister on August 28, 1980, there was no air filter therein. In order to remove the air filter from its canister it is necessary to unscrew several bolts with a wrench. The paint at this location indicated the nuts had not been removed from their bolts prior to August 28.

Unquestionably, the operation of the diesel truck without the air filter allowed dirt into the air intake system and engine. And it is clear that the dirt which accumulated therein necessitated the two overhauls and adversely affected the functioning of the vehicle.

Nevertheless, the record reveals that the plaintiff drove the truck 88,000 or 89,000 miles during the lOVfe month span. Cloud’s records reveal that he operated the truck in his business on 188 days during this period, hauling approximately two or three loads per day. His gross earnings from these hauls was $61,074.11 or $324.87 per day. His gasoline expenses during this period was $15,275.00 or an average of $81.25 per day. Thus, while operating the plaintiff netted approximately $245.00 per day.

The plaintiff testified that he discontinued the operation of the truck because of low oil pressure in January, 1981. Huffman’s employees’ testified that the reason for the low oil pressure was dirty oil and that after the oil change the oil pressure was in normal limits and the truck was operable. From our review of the evidence we cannot say that the trial court was clearly wrong in finding that the defect (absence of an air filter) did not render the vehicle absolutely useless or so inconvenient that the plaintiff would not have bought the vehicle had he known thereof. Therefore, we must affirm the trial court’s denial of the plaintiff’s demand for a rescission of the sale.

In every redhibitory action, however, if the evidence establishes only a partial failure of consideration, it is within the discretion of the court to grant the buyer a reduction in the purchase price. LSA-C.C. Arts. 2541 and 2543; LSA-C.C.P. Art. 2164, Savoie v. Don Siebarth Pontiac, Inc., 345 So.2d 210 (La.App. 3 Cir. 1977); and Davis v. Davis, 353 So.2d 1060 (La.App. 2 Cir. 1977), writ denied 355 So.2d 549 (La.1978).

In the present case we find that because of the missing air filter the engine had to be overhauled twice and that other systems operating on air, including the windshield wipers, malfunctioned a number of times and had to be repaired. Under these facts we believe that the plaintiff is entitled to a reduction in the price of the vehicle against GMC and Huffman.

One of the principal factors in making such an award is the cost of repairing the defects. Depending on the circumstances, this may be the only consideration. However, where warranted, the court may also include in the judgment what it believes to be the difference between the actual sales price and the price that a reasonable buyer and seller would have agreed upon had the defect been known to them at the time of the sale. Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4 Cir. 1974), writ refused 303 So.2d 186 (La.1974).

In this case the evidence reveals that the defendants repaired the vehicle several times at no cost to the plaintiff. The trial judge evidently found that it had been satisfactorily repaired. Otherwise, he would have made some award to the plaintiff. We cannot say that he was clearly wrong in this respect. In view of such finding and the fact that this vehicle was driven some 89,000 miles by the plaintiff before he permitted the finance company to foreclose its mortgage without making any request for further repairs even though the truck was still within its warranty period, we are convinced that the plaintiff’s recovery should be limited to the monetary damages actually proved. He, of course, is entitled to recover these in quanti minoris despite his being unable to return the vehicle and restore the parties to their status quo. Lacey v. Baywood Truck & Machinery, 381 So.2d 863 (La.App. 1 Cir. 1980).

The record reflects that the vehicle was in the shop for repairs nine days and also that the plaintiff was unable to use it in his business on ten rainy days because of malfunctioning windshield wipers which resulted from the lack of an air filter. Consequently, we believe that he should be compensated for his loss of income during these 19 days of “down time.” Weber v. Crescent Ford Truck Sales, Inc., 393 So.2d 919 (La.App. 4 Cir. 1981), writ denied 400 So.2d 667 (La.1981). We will therefore award the plaintiff $245 per day for 19 days or a total of $4,655. No other damages were established..

We also find that the plaintiff is entitled to an award for his attorney’s fees. LSA-C.C. Art. 2545 states:

“Liability of seller for concealment of vice. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorney’s fees, is answerable to the buyer in damages.”

Under this article a “seller who knows of defects, or who, with reasonable inspection can find obvious or apparent defects, in the product he sells, stands in a similar position as the manufacturer of the product.” Harris v. Bardwell, 373 So.2d 777, 780 (La.App. 2 Cir. 1979). If the buyer proves actual or constructive knowledge of the defect by the seller, the latter is liable for reasonable attorney’s fees. Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1 Cir. 1975).

In the instant case the evidence reveals that Huffman was required to make a “Pre-delivery Inspection” of the vehicle which included a check of the air filter. Not having found through such inspection that the vehicle lacked an air filter, the seller had constructive knowledge of the defect before the sale. Therefore, both the manufacturer, GMC, and the seller, Huffman, are liable in solido for the buyer’s attorney’s fee which we will fix at $3,500.

Turning now to Huffman’s third party demand against GMC for indemnification, the latter argues that because Huffman has not taken an appeal from the judgment (which did not mention such demand) it is now final. We disagree, but believe it is necessary to remand the case to the trial court for the disposition of that incidental demand.

In Chatelain v. Payzant, 382 So.2d 941 (La.1980), our supreme court was confronted with an analogous situation and ruled:

“It has been held that a judgment for plaintiff by implication rejects a recon-ventional demand on the part of defendant. Rester v. Davidson, 29 So.2d 527 (La.App. 1 Cir. 1947). However, where, as here, there is a judgment in favor of defendant, there is no implied rejection of defendant’s reconventional demand.
“In Walker v. Jones, 257 La. 404, 242 So.2d 559 (1970) it was held that the trial court was not divested of jurisdiction over a third party action when that action had not been adjudicated and was not reviewable on appeal.
“At the time this judgment was signed, the trial court could not have decided the reconventional demand because it only asked indemnification or contribution, if Cora Payzant was cast in judgment. The judgment was in her favor and it was unnecessary to decide the reconventional demand. When the Court of Appeal reversed the trial court judgment in part, the trial court retained jurisdiction over the reconventional demand. It was unnecessary for defendant Payzant to appeal or answer the appeal because the reconventional demand had never been decided. Therefore, the matter will be remanded to the trial court for judgment on Cora Payzant’s reconventional demand for contribution against Clayton and Jo Ann Chatelain.” [Emphasis added.]

In the present case the trial court could not have decided the third party demand by Huffman because it only asked for indemnification if Huffman was held liable for damages caused by the defect, and the latter was exonerated. According to Walker v. Jones, supra, in such case the trial court retained jurisdiction over the third party demand and the matter is not reviewable by this court. Therefore, a remand is necessary for the determination of such demand.

Bond v. Commercial Union Assur. Companies, 387 So.2d 617 (La.App. 3 Cir. 1980), affirmed in part, reversed in part and remanded, 407 So.2d 401 (La.1981), involved a somewhat similar situation and this court went ahead and ruled on the third party demands under LSA-C.C.P. Article 2164. However, the distinction between the two cases is that in Bond the trial court’s judgment expressly dismissed the incidental demands. In this case the judgment is silent in that respect.

For the foregoing reasons, the judgment of the district court is affirmed insofar as it dismissed the plaintiffs demands against Cummins. Otherwise it is reversed and judgment is hereby rendered on the main demand in favor of the plaintiff against GMC and Huffman, in solido, in the principal sum of $4655.00 and $3500.00 as an attorney’s fee, together with legal interest from judicial demand until paid. The case is remanded to the district court for the disposition of Huffman’s third party demand against GMC. Taxation of court costs will await final determination of the suit.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART AND REMANDED.

      . The evidence is uncontradicted that Cummins was not responsible for providing the air filter. It was merely the manfacturer of the engine and there is no evidence in the record to suggest a defect in the engine. Therefore, Cum-mins is not liable for the damages caused by the missing filter.


author: CUTRER, Judge. DOMENGEAUX, Judge,

text:
    James ALLEMAN, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 8806.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 21, 1982.

      Jerry L. Finley, Baton Rouge, for defendant-appellant.
    John A. Rogers, Jeanerette, for plaintiff-appellee.
    Mouton, Roy, Carmouche, Bivens & Kraft, John Bivens, Lafayette, for interve-nor-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

This is an appeal by the State of Louisiana, through the Department of Highways from a trial court judgment awarding James Alleman damages for injuries he received when the vehicle, in which he was a passenger, overturned after striking a pothole on Louisiana Highway 82 in Iberia Parish, Louisiana.

On the date of the accident, November 20, 1977, plaintiff, James Alleman (Alle-man), was employed by Loomis International, Inc. (Loomis), as an “operator” whose duties were to pressure test drilling pipe used in oil exploration. That Sunday morning he met his co-employee, Andrew Zane-lotti (Zanelotti), at the company yard in New Iberia. Each man then drove a two-ton flatbed truck to Intracoastal City to pick up some testing equipment which had been used offshore. The truck that Alle-man was driving sustained a flat tire after it arrived at the loading dock. The equipment was loaded upon the truck driven by Zanelotti and Alleman rode with Zanelotti on the return trip to the New Iberia yard.

The return route followed the same route taken in the early morning trip. Around 10:00 A.M., while heading north on Highway 82, Zanelotti proceeded around a curve approaching a bridge when he hit “something” in the road causing the front end of his truck to jump up off the surface of the road. The truck went out of control. Despite his efforts to regain control of the truck, it overturned just after he completed traversing the bridge. Alleman was thrown from the vehicle upon impact, suffering severe injuries to his face and head. Zanelotti suffered much less severe injuries in the accident.

Alleman filed suit against the State of Louisiana through the Department of Highways (Department) to recover damages for injuries he sustained in the accident due to the Department’s negligence in failing to properly maintain the highway. The Department answered alleging Alleman was contributorily negligent, thus barring his recovery; a third party demand was made against Loomis and its employee, Zanelotti, alleging their negligence and solidary liability with the Department. Third party defendants filed a motion for summary judgment against Loomis’ claim which was granted by the trial judge. No appeal having been taken from that judgment, it has become final.

American Mutual Liability Insurance Company (American), the workmen’s compensation insurer of Loomis, filed a petition of intervention seeking to recover workmen’s compensation benefits and medical expenses paid by it to Alleman. American also sought judgment relieving itself of any future liability for workmen’s compensation benefits or medical expense and reimbursement for any that are paid.

Trial on the merits was had; the trial court rendered judgment in favor of Alle-man and against the Department subject to the claims of intervenor, American. The Department appealed this adverse judgment. No appeal or answer was filed by Alleman.

The Department alleges several errors committed by the trial court in deciding this case. Upon our review, we find the significant issues to be:

(1) Was the trial court manifestly erroneous in finding the Department liable to Alleman for his injuries;
(2) Did American sufficiently prove its entitlement to reimbursement for medical expenses paid by it to Alleman;
(3) Was the award of damages to Alle-man excessive; and
(4) Did the trial court err in failing to allow contribution by Loomis and Zane-lotti.

LIABILITY

(A) Existence of a Defect

In determining liability it is necessary to first establish whether some cause in fact of the injury, of which Alleman complains, existed. In other words, did the trial court commit manifest error in finding the existence of a pothole and then concluding it to be the cause in fact of the accident?

The trial court, after considering all the evidence and testimony, concluded that the preponderance of the evidence proved the existence of a pothole and that it was the cause in fact of Alleman’s injuries. The determination by the trial court was a factual one and should not be reversed on appeal absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). The method of review by the appellate courts in civil cases was clarified by Arceneaux, supra, stating:

“As an aid to the exercise of the appellate function of review of facts in civil cases, we attempted to explain, in Canter v. Koehring, supra, without great detail, the appropriate standard. We said that ‘even though the appellate court may feel that its own evaluations and inferences are as reasonable,’ it should not disturb reasonable findings of the trial court when there is conflict in the testimony. We prefaced this observation: ‘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.’ 283 So.2d 716, 724 (Emphasis added).”

On deposition and at trial Alleman maintained that Zanelotti negotiated the curve going approximately 40 to 45 miles per hour. He stated that he, as a habit, notices the speedometer and that he had looked at it prior to entering the curve. After negotiating the curve, the truck approached a bridge. Alleman testified that he noticed a pothole in the road when they were 30 to 40 feet from it but there was insufficient time to warn Zanelotti before impact. The front end of the truck jumped up off the roadway, went out of control and overturned. Alleman described the pothole as being about 3 ft. X 3 ft. and 4 to 6 inches deep. There was some conflict between Alleman’s deposition testimony and that at trial (whether the pothole was closer to the highway’s centerline or the shoulder of the north-bound lane and whether the left front or right front tire hit it); however, the variations are insignificant to the resolution of the case.

Zanelotti, the driver of the truck, stated that after negotiating the curve he approached the bridge. He noticed a truck approaching him encroaching in his traffic lane on the bridge. He was paying more attention to the truck than to the roadway. He slowed down and suddenly he felt a jolt. The front end of the truck went up into the air, it swerved to the left after returning to the road surface and flipped. Zanelotti stated he slowed from 50 to 55 miles per hour to 40 to 45 miles per hour upon entering the curve. He did not remember crossing the bridge.

The Department tried to prove the nonexistence of the pothole and that the accident was solely due to the negligence of Zanelotti. The State called Sergeant Tommy Reeves of the Louisiana State Police who investigated the accident. The trooper stated that Zanelotti and Alleman had been taken to the hospital by the time he arrived. He didn’t remember if he interviewed these parties at a later time. The trooper stated that he felt that excessive weight and “a little too much speed” caused the accident. He found no skid marks at the scene. He had no way of knowing the weight of the testing equipment. The trooper stated that he retraced the path of the truck from its resting place to the store (south of the bridge) and found no defects in the road surface. He relied on his report. He had investigated the accident two years previously. He stated that his report reflected no defects in the road surface and stated that if there would have been any he would have noted same.

John Bergeron, the operator of the store near the accident for the past twelve years, stated that he had not noticed a pothole on the roadway in front of his store. He stated that if had seen one he would have reported it to the Department. Mr. Leo (Neil) Bergeron, the maintenance superintendent for the Department in that area stated that periodic checks (every two weeks, minimum) are made by traveling the roads and visually checking for potholes and other defects. He stated that he had no report of a pothole on Highway 82; however, he stated that until the pothole became 18 inches in diameter and 2 to 3 inches deep it would not be considered dangerous and it would not be immediately covered.

In regard to the pothole, photographs were introduced showing a large pothole south of the bridge as well as testimony as to its existence by Alleman’s brother, Ronald Alleman, and Cornelius Slaughter. The Department objected to the introduction of the photographs as they were taken on February 4,1978, after the accident in November 1977, as not showing the condition of the road at the time of the accident. Ronald Alleman stated that approximately one month after the accident he and Alleman viewed the size of the hole to be 3 ft. X 3 ft. and 4 to 6 inches deep filled with shells and gravel. Slaughter made the same observation (he measured the hole finding it to be 3 ft. 2 in. X 3 ft. and 6 inches deep) on February 4, 1978 and took pictures of the pothole. Alleman stated that the pictures showed the pothole they hit on the day of the accident except that it had been filled with shell by the time the photographs were taken.

As to the admissibility of the photographs, this court in DeRouen v. Dept. of Trans. & Development, 392 So.2d 765, footnote 1, p. 770, (La.App. 3rd Cir. 1980), stated:

“.. . The well-established rule as to the admissibility of photographs is that it need only be shown that a photograph depicts correctly what it purports to depict. ...” (Citations omitted.)

See also, Messex v. Louisiana Department of Highways, 302 So.2d 40 (La.App. 3rd Cir. 1974). The photographs were admissible and subject to such weight as the trial court may accord them considering the circumstances under which they were taken. In addition to the photographs the trial court had before it the testimony of witnesses. The trial court recognized the close factual nature of the determination (the existence of the pothole), but determined that the testimony (even though much was conflicting), “conclude [d] it is more probable than not that the pothole did exist November 20, 1977." The trial court gave great weight to Alleman’s testimony as he was in the best position to see the pothole. We cannot say that this finding and conclusion by the trial court is manifestly erroneous or clearly wrong. Arceneaux, supra; Canter, supra.

(B) Strict Liability: LSA-C.C. Article 2317

The trial court held the Department liable under the theory of “strict liability.” LSA-C.C. art. 2317. On appeal, the State does not take issue with the applicability of art. 2317. We shall apply art. 2317 to this case. Our Supreme Court, in one of its most recent pronouncements regarding strict liability, Jones v. City of Baton Rouge, etc., 388 So.2d 737, 739 (La.1980), stated:

“Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2317 need not prove 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....” Id. at 737.

Further, in regard to the liability of a public body for its actions or omissions, the court stated:

“... Where delictual responsibility is based not on negligence but on legal fault, under article 2317, a public body’s knowledge of the existence of the danger is irrelevant. Liability is a consequence of the fact of ownership and custody in itself, not of the breach of duty."

This court, in a very analogous case to the one at bar, held the Department liable under the “strict liability” provisions of art. 2317. DeRouen v. Dept. of Trans. & Development, supra. In that case, the Department was driving new support piling on Louisiana Highway 10 bridge over the Cal-casieu River. In order to do so, a 14 in. X 14 in. hole was cut through the bridge deck. Once work ceased for the day, a metal plate was bolted down over the hole; however, it somehow came loose exposing the hole into which the wheel of plaintiffs car fell while traversing the bridge. We affirmed the liability of the Department under art. 2317. The Department’s claim of contributory negligence on the part of the driver was denied.

In a very close factual situation, the court in Scott v. State Dept. of Trans., Etc., 392 So.2d 482 (La.App. 1st Cir. 1980), writ den., 396 So.2d 921 (La.1981), held the Department liable under art. 2317 for damages suffered by the plaintiff when she struck a “pothole” at the end of a bridge. She could not avoid striking it either by stopping or by changing lanes (due to traffic). The court found that all of the elements of strict liability were met; the State had custody of the highway; the highway was defective and that the defect caused plaintiff’s injuries. No fault of the victim, fault of any third person or irresistible force was proven to exculpate the Department.

The same conclusion was reached in Foggan v. La. Dept. of Trans. and Dev., 402 So.2d 154 (La.App. 1st Cir. 1981), which allowed a motorcycle driver to recover damages sustained when he hit a hole in a state highway. In setting out the principles of legal fault (art. 2317), the court stated:

“Neither knowledge of the defect or any particular act or omission by defendant are prerequisites to a finding of liability. ... Plaintiff need only prove that (1) the thing which caused his injury was within the defendant’s care and custody; (2) the thing had a vice or defect, i.e., that it occasioned an unreasonable risk of injury; and (3) his injury was caused by the defect.... Once these elements are established, defendant can escape liability only by showing that plaintiff’s injury was caused by plaintiff’s own fault, by the fault of a third party, or by an irresistible force....” Id. at 156. (Citations omitted.)

From a review of the facts in our case, we conclude that the trial court was not clearly wrong in its conclusion that a “pothole” did exist in the highway creating an unreasonable risk of harm to plaintiff, the highway was under the custody of the Department which was responsible for its maintenance and that Alleman’s injuries were caused by the dangerous condition which existed (pothole). No evidence of any fault on the part of the victim, a third party or any irresistible force was present that would exculpate the Department from liability. We find the pothole to be a defect (unreasonably hazardous condition) which was the cause in fact of Alleman’s injuries. There being no defenses to this liability proven by the Department, it is therefore, liable for damages caused by its legal fault under LSA-C.C. art. 2317.

(C) Intervention: Medical Expenses

The Department urges that interve-nor, American, did not sufficiently prove that the payments, made by it, were for claims arising out of the accident. We disagree. At the beginning of the trial the parties stipulated as follows:

“... And, further that for and on behalf of the injuries which Mr. Alleman complains of with regard to the accident of 20 November, 1977, American Mutual paid to or for in behalf of Mr. Alleman to include the doctors, hospital, etc. the sum of six thousand, six hundred thirty-four dollars and forty-three cents ($6,634.43). And, that is the extent of our interven-tion_”

Counsel for the Department agreed to the stipulation. No further proof of these expenditures is required.

(D) Quantum

The Department contends that the award was excessive. As a result of the accident, Alleman suffered severe head and facial injuries. The medical testimony is replete with details of the severity of Alle-man’s injuries. By summary, Alleman suffered a fractured skull, broken jaw (right mandibular fracture); frontal sinus fracture (right upper jaw, maxilla), which also was in relation to occipital fractures of the lower orbital (the part of the cheek bone below the eyes which forms the lower portion of the eye socket); marked edema (swelling) of upper and lower eyelids on both sides, with scattered bruises under eyelid tissue on both sides; small hemorrhage on conjunctival (white lining of eyeball) on right eye, apparent lateral fracture of the C-7 vertebrae which appeared to be stable requiring no treatment. An emergency tracheotomy was performed to aid Alle-man’s breathing. To remove the resulting scar will necessitate plastic surgery with total costs estimated to be $700.00.

To set the mandibular fracture required an open reduction (surgical incisions into the skin to remove fragments of bone). Also, dental arch bars were wired to Alle-man’s teeth and pulled together by rubber bands. His jaws remained immobile for six weeks precluding ingesting anything but liquids and normal use was not restored for a few weeks once the braces were removed. The sinuses were packed to give support to the occipital and maxilla fractures. As a result of the sinus fracture, Alleman has lost all sense of smell and one third of his sense of taste. He also has asymmetrical infra orbital rims; left rim is slightly higher than the right. Scars remain where in-cissions were made.

Further, as a result of the trauma to Alleman’s face, head and mouth, he has suffered damage to his teeth. After the fractures were set and had healed, corrective dental work was performed to repair damaged teeth. This work required the removal of five teeth, a porcelain jacket crown for one, silver amalgam fillings for five teeth, and a partial composite filling for one other. Alleman made eleven visits to Dr. Schexnayder’s office and received two bridges to replace those teeth which were removed.

From the testimony of the various attending physicians, Alleman suffered much pain from his injuries received in the accident. The trial court awarded Alleman $52,500.00 “as compensation for his injuries, disability, future damages, mental anguish, pain and suffering.” An award of $9,000.00 was made for loss of wages, making a total of $62,500.00 subject to intervenor’s claim of $13,000.00 paid in workmen’s compensation benefits.

The Supreme Court, in Coco v. Winston Industries, Inc., 341 So.2d 332, 334 (La.1976), elucidated several principles by which examinations of damage awards are to be guided, opining:

“ ‘ Unless the record demonstrates that the trial court abused the “much discretion” provided for in fixing damages (C.C.1934), the appellate court should not disturb the award.... The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court....
“ ‘A reviewing court might well disagree with the amount of the award fixed by the jury, but it is not entitled to substitute its opinion for that of the trier of fact. ...”

These guidelines have been followed: Reck v. Stevens, 373 So.2d 498 (La.1979); Bantin v. Dept. of Transp. & Development, 411 So.2d 65 (La.App. 3rd Cir. 1982).

We find no abuse of discretion in the trial court’s award of damages.

Alleman, in brief, asks this court to increase the trial court’s award from $62,-500.00 to $165,700.80. We are unable to do so. In order to have a judgment increased, the appellee must either appeal the judgment or answer the appeal. Alleman, the appellee, did not appeal; therefore, his remedy is limited by LSA-C.C.P. art. 2133 which requires an answer to be filed "stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later.” No answer was filed and we do not construe his brief to incorporate an answer, but, if so, it would not have been filed within the allowable time permitted by LSA-C.C.P. art. 2133. This claim is denied.

(E) Contribution of Zanelotti; His Employer, Loomis

The Department urges that it is entitled to have the judgment reduced by one-half due to its third party demand against Loomis and Zanelotti. The Department contends that Zanelotti’s negligence contributed to the cause of the accident. We disagree. Loomis and Zanelotti filed a motion for, and obtained a summary judgment dismissing the Department’s third party claim against them. The judgment was signed April 11, 1977, and no appeal was perfected. That judgment has become final and cannot be considered on this appeal.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of the trial court and of this appeal shall be paid by appellant, State of Louisiana, Department of Highways, in the amount of $1,111.48.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reasons.

APPENDIX

NUMBER 8806

JAMES ALLEMAN v. STATE OF LOUISIANA, DEPARTMENT OF HIGHWAYS

In this ease, we have affirmed the trial court’s conclusion of liability of the Department on the basis of LSA-C.C. art. 2317 as interpreted in Jones v. City of Baton Rouge, supra. If we had approached the liability problem from the standpoint of LSA-C.C. art. 2315, this decision would have been a clear reversal. The evidence does not show that the Department had any knowledge, either constructive or actual, of the existence of the pothole prior to the accident. The net effect of this decision is to extinguish the longstanding rule which held that it must be shown that the Department had knowledge, actual or constructive, before it can be held liable.

The case of Jones v. City of Baton Rouge, supra, was handed down September 3,1980. The case of Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), was rendered on November 10, 1980, after Jones. In Sinitiere, the court decided liability on the basis of art. 2315, clearly finding knowledge of the defective condition by the Department before the accident and a failure to repair same. If we were to decide this case following Sinitiere, it would be a clear reversal. By deciding it based upon the earlier case of Jones (which makes no requirement of prior knowledge by the Department), we affirm the liability of the Department.

We have come to the conclusion that art. 2317 (Jones) is applicable in this case, but we do so with some reservations. We are asking ourselves the question of whether the longstanding rule of prior knowledge of a defect by a public body, has been deleted from our jurisprudence dealing with defective conditions in objects under the control of a public body. We are answering this question in the affirmative as a review of the very recent jurisprudence is progressing in that direction; consequently dictating such a result. We are unable to fully convince ourselves, however, that we have une-quivocably arrived at that point in view of the potential problems this ruling would create for all public bodies who have custody of highways — hence, our reservations.

DOMENGEAUX, Judge,

concurring.

I agree with the majority opinion and the appendix attached. I concur simply to suggest that this case may be a good one for the Supreme Court to grant a writ and clear up the apprehensions and uncertainties involved in the overall subject of strict liability as it pertains to public bodies.

      . Four other pictures were identified and introduced into evidence which were taken in March 1981. These pictures were identified by Alie-ntan as showing the general scene of the accident; the grocery store with potholes in front of the store; a house next door to the grocery store with potholes in front of same. The potholes were not on highway property and were not relevant to this case. The remainder of the scenes, however, showed the structures and scenes referred to in the testimony concerning the occurrence of the accident. These pictures, while quite remote in time, were admissible for whatever value the trial judge may have wanted to apply to them.

      . See appendix.


author: FORET, Judge.

text:
    Curtis BATISTE, et ux., Plaintiffs-Appellants, v. SECURITY INSURANCE GROUP, et al., Defendants-Appellees, Warren J. Lacombe, Defendant-Appellant.
    No. 8807.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 21, 1982.

      Dee D. Drell of Gold, Little, Simon, Weems & Bruser, Alexandria, for plaintiffs-appellants.
    Sandoz, Sandoz & Schiff, Leslie J. Schiff, Guglielmo & Lopez, Peter Caviness, Opelou-sas, Michael J. Johnson, Cottonport, for defendants-appellees.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   FORET, Judge.

Curtis Batiste and his wife, Agnes Batiste (plaintiffs), brought this action to recover $110,000 for the destruction of their home and its contents by fire. Named defendants are: The Security Insurance Group (Security) and/or Connecticut Indemnity Company (Connecticut), foreign insurance companies authorized to do and doing business in this State; the American Modern Home Insurance Company (American), a foreign insurance company also authorized to do and doing business in this State; Opelousas Underwriters, Inc. (Opelousas Underwriters), a Louisiana corporation, and Warren J. Lacombe (Lacombe), a resident of Rapides Parish. American and Opelou-sas Underwriters brought third party demands naming Lacombe as third party defendant thereto.

Security and Connecticut filed a motion for summary judgment and the trial court rendered judgment upon the motion in their favor, dismissing plaintiffs’ action against them. Plaintiffs have taken no appeal from this judgment, and it is final. The trial court rendered judgment, after trial, in favor of plaintiffs and against Lacombe, in the full sum of $50,000, together with interest from date of legal demand until paid. The trial court further rendered judgment in favor of American and Opelou-sas Underwriters, dismissing plaintiffs’ demands against them with prejudice. Finally, the trial court rendered judgment in favor of Lacombe, dismissing the third party demands of American and Opelousas Underwriters against him.

Plaintiffs appeal devolutively from the trial court’s judgment, and raise the following issues:

Whether the trial court committed manifest error:

(1) in finding that the completion of plaintiffs’ application for insurance coverage with American did not create a contract or policy of insurance between American and them;
(2) in finding no liability on American’s part for the loss suffered by plaintiffs under the theory of product liability (the application form being the alleged defective product);
(3) in failing to find that American was estopped from denying coverage because of the language used in the application form, which it prepared;
(4) in finding that Lacombe was neither the agent of Opelousas Underwriters, nor American; and
(5) in failing to award plaintiffs damages for additional living expenses.

Lacombe filed a motion for a suspensive appeal from the trial court’s judgment. The trial court granted the motion conditioned on Lacombe’s posting a bond in the amount of $75,000. Lacombe failed to post a bond and he will be considered as having appealed devolutively. He raises the following issue:

Whether the trial court committed manifest error in finding that he was plaintiffs’ agent and liable to them for failing to perform his duty to diligently pursue their application and to timely inform them that no coverage had been provided, and that his actions warranted an assumption on plaintiffs’ part that they were properly insured.

American and Opelousas Underwriters have answered the appeal asking for judgment in their favor on their third party demands against Lacombe, if this Court reversed the judgment of the trial court and finds them liable to plaintiffs.

FACTS

This action arises out of the occurrence of a fire on September 11, 1979, that totally-destroyed a home and its contents belonging to plaintiffs.

Plaintiffs had insured their home and its contents against loss by fire under a policy issued to them by Connecticut. However, that policy expired on August 10, 1979, approximately one month before the fire. Plaintiffs knew that the policy had expired and had gone to Lacombe on August 24, 1979, to secure a new homeowners insurance policy. On that date, an application for such insurance with American was prepared for them by either Lacombe or his secretary, together with a finance agreement for a portion of the premium therefor. Plaintiffs apparently gave Lacombe $15 in cash and a check for $106 as a down payment on the premium. Plaintiffs asked La-combe to hold the check until August 31, 1979, when they would come and exchange cash for it. They did this and assumed that they had obtained insurance coverage which was in effect. Unfortunately, this assumption proved wrong as they subsequently discovered when they attempted to file a claim for their loss.

PLAINTIFFS’ ALLEGED POLICY OR CONTRACT OF INSURANCE WITH AMERICAN

Plaintiffs contend that the trial court committed manifest error in finding that the form completed for them by La-combe or his secretary was merely an application for insurance and did not create a contract or policy of insurance. The trial court found that this completed form evidenced nothing more than an offer or proposal made by plaintiffs to induce the insurer (American) to issue a policy and that there was no contract until the offer was accepted by the insurer.

Plaintiffs argue that the form represents a binder, or other contract for temporary insurance, within the meaning of LSA—R.S. 22:691(C). In essence, plaintiffs argue that because the form refers to the applicant as the “insured” in certain places thereon, it constituted a contract between the applicant and the insurer. We have reviewed the form and note that it concludes with the following sentence: “The producer acknowledges that he is acting with the authority of the above named insured in providing the information contained in the above application and in signing the application as authorized representative of the insured.” (emphasis ours.) Thus, it does identify itself as being nothing more than an application.

We conclude that the trial court correctly found that the application form supplied by American evidenced nothing more than offers made by the applicants to it upon completion and that such offers never became contracts until accepted by it.

PRODUCT LIABILITY

Plaintiffs contend that the trial court committed manifest error in finding no strict liability on the part of American for the loss suffered by them which they argue was caused by a defective product supplied by it, i.e., the application form. Plaintiffs rely on Weber v. Fidelity & Casualty Insurance Company of New York, 250 So.2d 754 (La.1971), in support of their argument. We find no merit whatsoever to this argument, and dismiss it without discussion.

EQUITABLE ESTOPPEL

Plaintiffs argue that American and/or Opelousas Underwriters should be estopped from asserting that no policy had been issued to plaintiffs because of plaintiffs’ alleged detrimental reliance on language contained in the application form. They rely on Travelers Insurance Company v. United States Fidelity & Guaranty Company, 168 So.2d 439 (La.App. 3 Cir. 1964), where this Court said:

“Equitable estoppel ‘arises where a person, by his acts, representations, or admissions, or even by his silence when it is his duty to speak, intentionally or through culpable negligence induces another to believe that certain facts exist, and the other person rightfully relies and acts on such belief, and will be prejudiced if the former is permitted to deny the existence of such facts.’ 31 C.J.S. Estoppel § 59. Shirey v. Campbell, La.App. 2 Cir., 151 So.2d 557.”

We find the Travelers case to be inapposite. It is our opinion that there is no merit to plaintiffs’ argument. Both plaintiffs admitted that they had not read the application form. Obviously, it was impossible for them to rely on something which they had not read.

MANDATE

Plaintiffs contend that the trial court committed manifest error in refusing to find that any agent-principal relationship existed between Lacombe, as agent, and American and/or Opelousas Underwriters as principal(s). The trial court found that Lacombe was an insurance “broker” with respect to American and Opelousas Underwriters and that he was actually plaintiffs’ agent.

United Credit Plan of Jena, Inc. v. Hailey, 341 So.2d 58 (La.App. 3 Cir. 1976), stated on page 61 that:

“In Karam v. St. Paul Fire & Marine Insurance Co., 265 So.2d 821 (La.App. 3 Cir. 1972), affirmed 281 So.2d 728 (La.1973), we quoted with approval the following statement in Appleman, Insurance Law and Practice, Sec. 8725:
‘A person delegated to solicit insurance for a particular company, and to refrain from soliciting insurance for any other company, is an agent, and not a broker. The fundamental distinction in the legal result is that the acts of one procuring insurance as the agent of the insurer are imputable to it, while those of one acting as the agent of the insured, or as a broker, are not; the broker representing the insured for the purpose of procuring the policy, and the insurer only in order to receive and transmit the premium.’ ”

See also Britten v. Payne, 381 So.2d 855 (La.App. 1 Cir. 1980), writ denied, 384 So.2d 800 (La.1980).

The trial court correctly noted that the evidence showed that:

“At the time in question, Lacombe was not an agent capable of binding any company that could write property owner’s coverage. Lacombe was free to place the application with any one of several companies, one of which was Opelousas Underwriters and upon acceptance of the application by Opelousas Underwriters, coverage was binding. Lacombe was under no obligation to write for Opelousas Underwriters, nor did he hold a power of attorney for Opelousas Underwriters. Opelousas Underwriters had no agents. It issued binding authority to no one. It solicited brokers such as Lacombe to place applications with the company before the risk could be underwritten.”

However, plaintiffs point to the evidence showing that Opelousas Underwriters had an ongoing billing procedure with Lacombe and that Lacombe had received a memorandum from Opelousas Underwriters asking him to sign it as “agent”. They also note that a letter written by an employee of Opelousas Underwriters to Lacombe began with the words “Dear Agent”. Under such facts and circumstances, plaintiffs argue that Tiner v. Aetna Life Insurance Company, 291 So.2d 774 (La.1974), is authority for finding Lacombe to be an agent of Opelou-sas Underwriters. Tiner, quoting from 3 Couch on Insurance 2nd, § 26:25, pages 481-482 (1960), stated on page 777 that:

“ ‘ * * * if one purporting to act as an agent receives an application, accepts the premium, secures and delivers the policy, and does everything necessary to attachment of the risk, the insured may assume that he is the properly authorized agent of the insurer.’ ”

Tiner then stated, on page 778, the general principle that:

“whether a broker in any particular transaction acts as the agent of the insured or of the insurer, is a question of fact dependent on the particular circumstances of the case. 3 Couch on Insurance 2d, Sections 25:95, Sections 26:152, 153 (I960).”

There is one very important distinction between the facts in Tiner and those present in this case. In Tiner, the insurer who was sought to be held liable for the acts of its purported agent had issued an insurance policy based on an application completed by that agent. In the case sub judice, no application was received, nor was any policy issued, as a result of the actions of Lacombe.

Our review of the record establishes that the trial court’s finding that Lacombe was neither an agent of American, nor of Opel-ousas Underwriters, is correct.

LACOMBE’S ALLEGED LIABILITY FOR PLAINTIFFS’ LOSS

Lacombe contends that the trial court committed manifest error in finding that he had breached his duty to plaintiffs to diligently pursue their application for insurance and to inquire, within a reasonable time, why no response had been received from Opelousas Underwriters regarding that application. The trial court found that, as plaintiffs’ agent, Lacombe had been negligent in handling their insurance application and that he was liable for the loss suffered by them. Plaintiffs’ claim is based on the provisions of LSA-C.C. Articles 2315 and 2316, as well as LSA-C.C. Article 3003, which provides, in pertinent part:

“Art. 3003. Mandatary’s liability for fault or negligence
Art. 3003. The attorney is responsible, not only for unfaithfulness in his management, but also for his fault or neglect.

We believe that the elements of a cause of action brought under the provisions of LSA-C.C. Article 3003 are identical to those of a cause of action brought under the provisions of LSA-C.C. Articles 2315 and 2316, i.e., cause-in-fact, a duty owed, breach of that duty, and an injury falling within the scope of protection afforded by the duty breached. Ardoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331 (La. 1978).

The application for insurance with American, which was completed on behalf of plaintiffs by Lacombe or his secretary, is dated August 31, 1979. Lacombe, at first, testified that the application was filled out that day. However, he later contradicted himself and testified that it was filled out on August 24, 1979. Lacombe stated that he told the plaintiffs at this time that he had no authority to issue a binder, or temporary contract of insurance, with any company. He testified that the application had been mailed to Opelousas Underwriters on August 31, 1979.

Sandra Bonoil, one of Lacombe’s secretaries, testified that she did fill out the application form and signed Lacombe’s name to it. She too stated that she believed that the form had been mailed to Opelousas Underwriters, although she had no personal knowledge that this was done since Lacombe would bring the office mail to the post office himself. She explained that the usual office procedure was to accompany such an application with an agency check for the premium or down payment on such. However, after reviewing the agency’s checkbooks, she agreed that no check had been written in connection with plaintiffs’ application. Bonoil testified that she never indicated to plaintiffs that they had insurance coverage, but she could not remember if she had told them that they had no such coverage.

A check for $280.00 made out to Opelou-sas Underwriters by the Warren Lacombe Insurance Agency, Inc. on behalf of Curtis Batiste was introduced in evidence. It was dated August 31, 1979. However, the checkbook stubs show that the check was taken from a group of checks that were dated, and apparently written, on September 12,1979, the day after the fire occurred. The check showed no signs of ever having been run through the bank for payment.

Plaintiffs testified that it was La-combe who filled out the application. They stated that this was done on August 24, 1979, and that Lacombe told them that they had insurance coverage starting that day. Curtis Batiste testified that he gave La-combe a check for $106 and $15 cash, on August 24, 1979, for a total down payment of $121 on the insurance premium because Lacombe had told him that the down payment had to be paid before there would be coverage. The check was to be held by Lacombe in lieu of cash for the down payment. Mr. Batiste stated that he went to Lacombe’s office on August 31, 1979, and gave Lacombe $106 cash to get his cheek back.

LSA-C.C. Article 3002 provides, in pertinent part:

“Art. 3002. Mandatary’s duty of performance
Art. 3002. The attorney in fact is bound to discharge the functions of the procuration, as long as he continues to hold it, and is responsible to his principal for the damages that may result from the non-performance of his duty.

Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728 (La.1973), held on pages 730 and 731 that:

“An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage.”

Lacombe, as plaintiffs’ insurance agent, owed this duty to them.

We find, as did the trial court, that Lacombe failed to send plaintiffs’ application to Opelousas Underwriters. The evidence clearly shows that Opelousas Underwriters never received the application form.

The trial court found that Lacombe had failed to follow up on the application with diligence after he received no response concerning it from American and/or Opelousas Underwriters.

We note that the application form was completed on August 24, 1979, at the earliest, which was less than three weeks before the fire occurred. The record contains no evidence to show that such applications for insurance coverages are normally approved by the insurer and notification of that approval received by the individual insurance agent in less than three weeks’ time. Therefore, we believe that the trial court erred when it based its holding on the grounds that Lacombe had failed to follow up on the application. We prefer to base our decision herein, affirming the trial court judgment, on the fact that Lacombe breached the duty owed by him to plaintiffs when he failed to send the application to Opelousas Underwriters and further, that, as found by the trial court, Lacombe’s actions warranted an assumption by the plaintiffs that they were properly insured. If Lacombe did not send the application to Opelousas Underwriters, it is obvious that he would have received no response from them. Therefore, the real crux of this case is not the failure to follow up with diligence, but rather the failure to send in the application to begin with.

It is obvious that the loss suffered by plaintiffs falls within the scope of protection afforded by the duty breached. It is more probable than not that plaintiffs would have suffered no loss had Lacombe timely sent the application to Opelousas Underwriters. Opelousas Underwriters had the authority to issue a binder, or temporary contract of insurance, once the application was received. This binder would have protected plaintiffs against the loss suffered under the same conditions and to the same amounts as set forth on the application form.

AMOUNT OF DAMAGES

The trial court awarded plaintiffs $40,000 in damages for the destruction of their home and $10,000 for their personal property that was also destroyed in the fire. The application form provided that plaintiffs would have $40,000 coverage on their home and $16,000 coverage on their personal property. However, plaintiffs limited their claim to $10,000 for their personal property and were awarded that amount.

Plaintiffs have appealed from the trial court’s judgment seeking an award for additional living expenses they incurred as a result of the fire. They argue that the application provides for coverage of up to $20,000 for this item and that they should be allowed to recover this amount. A review of that form clearly shows that this was a mistake. Recovery for additional living expenses was limited by terms printed on the form to 5% of the base market value of the house, which was $40,000. Thus, plaintiffs could have only recovered $2,000 for this item.

The trial court gave no reasons for its failure to award this amount to plaintiffs for additional living expenses. However, after reviewing the record, we find that plaintiffs failed to prove that they had incurred any additional living expenses as a result of the fire.

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

All costs of this appeal are assessed equally between plaintiffs-appellants and Warren J. Lacombe, defendant-appellant.

AFFIRMED.

      . This case was consolidated for trial with Franklin Finance Co. v. Curtis Batiste, et ux, # 80-276, 12th Judicial District Court, Avoyelles Parish, La. Judgment was rendered in the latter action pursuant to a stipulation entered into by the parties to that action. Thus, there was no appeal therefrom.

      . “C. Binders or other contracts for temporary insurance may be made, orally or in writing, and shall be deemed to include all the terms of such standard fire insurance policy and all such applicable endorsements, not disapproved by the fire insurance division as may be designated in such contract of temporary insurance; except that the cancellation clause thereof specifying the hour of the day at which the insurance shall commence, may be superseded by the express terms of such contract of temporary insurance.”

      . For later cases on this issue, see the following: Stacy v. Petty, 362 So.2d 810 (La.App. 3 Cir. 1978); Arceneaux v. Bellow, 395 So.2d 414 (La.App. 3 Cir. 1981), writ denied, 400 So.2d 669 (La.1981); and Boothe v. American Assurance Co., 327 So.2d 477 (La.App. 1 Cir. 1976), writ denied, 330 So.2d 315 (La.1976).


author: DOMENGEAUX, Judge.

text:
    Wiley R. STEWART, Plaintiff-Appellant, v. HANOVER INSURANCE COMPANY, et al., Defendant-Appellant, Calcasieu Parish School Board, Intervenor-Appellee-Appellant.
    No. 8810.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 21, 1982.

      R. Keith Findley, Lake Charles, for plaintiff-appellant-appellee.
    Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendant-ap-pellee-appellant.
    Gregory W. Belfour, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Wiley R. Stewart, instituted this tort action for damages resulting from injuries he sustained on April 7, 1978, in a trip and fall accident at W. 0. Boston High School in Lake Charles, Louisiana, where he was employed as football coach. Defendants were Port City Construction, Inc., Hicks-Sims Plumbing Company (Hicks-Sims) and its insurer Hanover Insurance Company. The Calcasieu Parish School Board, employer of plaintiff, intervened to recover benefits paid to plaintiff under the Louisiana Workmen’s Compensation Act.

After plaintiff rested his case at trial, Port City Construction Company filed a motion to dismiss plaintiff’s claim against it which was granted by the trial court. No appeal is taken from that judgment.

Following trial, the district judge found that plaintiff’s accident was caused through the negligence of defendant Hicks-Sims’ employees and rendered judgment against defendants in the amount of $32,674.90 with legal interest plus costs. Additionally, the trial court granted judgment in favor of intervenor for expenses and compensation paid which were associated with plaintiff’s fall, in the amount of $10,255.81, representing $5,720.00 and $4,535.81 for compensation and medical expenses respectively.

From this judgment the following appeals have been taken:

(1) Plaintiff appeals contending that the trial judge erred in excluding recovery for plaintiff’s neck injury; the award of the trial court was inadequate; and interve-nor’s award was excessive.

(2) Defendants appeal contending that the award for future medical expenses was unsupported by the evidence and the award of general damages was excessive.

(3) Intervenor answers both appeals contending that the award to plaintiff was inadequate and that the award to interve-nor was likewise inadequate. We reverse in part and affirm in part.

Plaintiff’s first contention is that the trial court erred in excluding recovery for his cervical condition. We disagree.

All of the physicians who testified at trial agreed that had plaintiff injured his neck in the April 7, 1978 fall he would have experienced symptoms associated with such injuries within a short period of time, i.e., one to two weeks. Contrarily, Doctor Phillips, who treated plaintiff for ten months following his accident, testified that plaintiff did not have any complaints of pain or injury to his neck.

Doctor Phillips examined plaintiff in the emergency room on the day of the accident. Again on April 11, 1978, and on April 19, 1978, Doctor Phillips saw plaintiff about complaints which he was having concerning swelling of his knee. Doctor Phillips saw plaintiff next towards the end of May of 1978, when plaintiff complained of pain in the low back and down his right leg. The patient was also seen in August and September of that same year, and he had the same complaints. In November of 1978 plaintiff was hospitalized for two weeks by Doctor Phillips for treatment and therapy for his lower back problems which persisted. Plaintiff last saw Doctor Phillips in January of 1979 and at that time plaintiff was still complaining of lower back and leg pains only.

Throughout the period that Doctor Phillips treated plaintiff, he was not complaining of pain associated with cervical spine problems. As such, the evidence conclusively shows that plaintiff’s neck injury was not sustained in the accident in question, and therefore, we agree with the trial judge who excluded recovery for plaintiff’s cervical spine problems.

Secondly, plaintiff contends that the trial judge erred in failing to adequately award damages for lost wages.

Having excluded damages associated with plaintiff’s cervical injuries, the trial judge awarded plaintiff $4,639.09 in damages for wages lost resulting from plaintiff’s back injuries. This figure represents forty-one days of sick leave taken from 1978 to 1981. The trial judge properly excluded any loss of wages resulting from plaintiff’s sabbatical leave since such leave evidently was not necessitated by plaintiffs back injury, but rather arose out of his cervical spine problems. We find no error in this award.

Next plaintiff complains that the $15,000.00 award for general damages is grossly inadequate, and should be increased. Defendant, on the other hand, suggests that the award is excessive. A close review of the record reflects that although plaintiff experienced great pain and discomfort from his lower back injuries, he was well on his way to complete recovery in January of 1979. When Doctor Phillips last saw plaintiff he felt that plaintiff would be able to return to his regular duties as football coach. Most of plaintiff’s problems (neck injury) which persisted were unrelated to the accident in question. Considering this, we cannot say that the trial judge abused his discretion in his award of general damages, therefore, we affirm that award. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

On appeal defendants contend that the award for future medical expenses was unsupported by the evidence, and therefore, it should be excluded. We agree.

It is axiomatic that in order to recover damages in a tort action, as in other cases, plaintiff bears the burden of establishing his claims to a legal certainty by a reasonable preponderance of the evidence. Mere possibilities and even unsupported probabilities are insufficient to support a judgment. See Wilson v. Standard Accident Insurance Company, 92 So.2d 781 (La.App. 2nd Cir. 1957) and the cases cited therein.

Upon review of the facts, as disclosed by the record, we can only conclude that plaintiff failed to establish his claim for future medical expenses by the requisite preponderance of evidence. None of the physicians who examined plaintiff personally or who reviewed his medical records testified that any additional surgery on plaintiff’s lower back would be necessary. To the contrary, all of the physicians who examined and/or treated plaintiff for his lower back problems agreed that plaintiff had fully recovered and could return to his regular duties as coach. Both Doctor Phillips, plaintiff’s treating physician (orthopedic surgeon), and Doctor Starr (neurologist), who examined plaintiff at Doctor Phillips’ request, recommended against surgery. There was simply no evidence introduced which suggests that plaintiff’s accident related injuries might mandate further medical care. Additionally, plaintiff failed to introduce any evidence establishing the cost of future medical care if required. Consequently, we find that the trial judge abused his discretion in awarding damages for future medical expenses, and therefore, the judgment of the trial court must be reduced accordingly.

Finally, plaintiff appeals contending that the trial court erred in its excessive award to intervenor (School Board). The School Board answers contesting that its award was inadequate.

Plaintiff avers that it was manifestly erroneous for the trial judge to award plaintiff only $4,639.09 for lost wages and then in turn grant intervenor judgment of $5,720.00 for weekly compensation payments made to plaintiff for the same period of time, and cites Fontenot v. Hanover Insurance Company, 385 So.2d 238 (La.1980).

As we interpret Fontenot, supra, it is inapplicable to the case at bar. Fon-tenot stands for the proposition that an employee is not required to reimburse his employer for paid medical expenses out of his (employee’s) award for pain and suffering when the employee has failed to recover medical expenses from a third party tort-feasor. The same is not true, however, for weekly benefits paid, which, are recoverable out of the award to the employee for pain and suffering, lost wages, or out of general damages. Foreman v. United States Fidelity & Guaranty Company, 253 So.2d 580 (La.App. 3rd Cir. 1971). In view of the above, we find no error on the part of the trial judge in granting intervenor judgment for compensation payments in excess of the amount awarded plaintiff for lost wages.

Lastly, we find intervenor’s claim of inadequate reimbursement is without merit. The trial judge having excluded recovery for plaintiff’s cervical problems properly disallowed reimbursement for weekly compensation and medical expenses paid which were not associated with plaintiff’s lower back injuries. The judgment awarded in-tervenor reflects such, accordingly, we affirm.

For the above and foregoing reasons the judgment of the district court is reversed insofar as it grants plaintiff judgment of $8,500.00 for future medical expenses. In all other respects the judgment is affirmed. Costs on appeal are assessed one-third (Vs) to plaintiff, Wiley Stewart, one-third (Vs) to defendants, Hicks-Sims and its insurer Hanover Insurance Company, and one-third (Vs) to intervenor, Calcasieu Parish School Board.

REVERSED IN PART, AND AFFIRMED IN PART.

      . Doctor Phillips is also of the opinion that had plaintiff injured his neck in his fall thereby triggering his degenerative arthritis the injury would not remain asymtomatic for more than one to two weeks. According to Doctor Phillips, an injury of this type would manifest symptoms within a couple of days.